Sloane v. Equifax Information Services, LLC

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

SUZANNE SLOANE, 
Plaintiff-Appellee,
and
JOHN T. SLOANE,
Plaintiff,
v.
EQUIFAX INFORMATION SERVICES,
LLC,  No. 06-2044
Defendant-Appellant,
and
TRANS UNION, LLC; EXPERIAN
INFORMATION SOLUTIONS,
INCORPORATED; CITIFINANCIAL,
INCORPORATED,
Defendants.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(1:05-cv-01272-LMB)

Argued: November 1, 2007

Decided: December 27, 2007

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

Affirmed in part and reversed and remanded in part by published
opinion. Judge Motz wrote the opinion, in which Judge Niemeyer and
Judge Michael joined.
2 SLOANE v. EQUIFAX
COUNSEL

ARGUED: Mara McRae, KILPATRICK STOCKTON, L.L.P.,
Atlanta, Georgia, for Appellant. Alexander Hugo Blankingship, III,
BLANKINGSHIP & ASSOCIATES, P.C., Alexandria, Virginia, for
Appellee. ON BRIEF: Timothy J. McEvoy, ODIN, FELDMAN &
PITTLEMAN, P.C., Fairfax, Virginia; Bradley J. Miller, C. Allen
Garrett, Jr., KILPATRICK STOCKTON, L.L.P., Atlanta, Georgia,
for Appellant. Thomas B. Christiano, BLANKINGSHIP & ASSO-
CIATES, P.C., Alexandria, Virginia, for Appellee.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

After Suzanne Sloane discovered that a thief had stolen her identity
and ruined her credit, she notified the police and sought to have Equi-
fax Information Services, LLC, a credit reporting service, correct the
resulting errors in her credit report. The police promptly arrested and
jailed the thief. But twenty-one months later, Equifax still had not
corrected the errors in Suzanne’s credit report. Accordingly, Suzanne
brought this action against Equifax for violations of the Fair Credit
Reporting Act (FCRA), 15 U.S.C.A. § 1681 et seq. (West 1998 &
Supp. 2007). A jury found that Equifax had violated the Act in
numerous respects and awarded Suzanne $351,000 in actual damages
($106,000 for economic losses and $245,000 for mental anguish,
humiliation, and emotional distress). The district court entered judg-
ment in the amount of $351,000. In addition, without permitting Equi-
fax to file a written opposition, the court also awarded Suzanne
attorney’s fees in the amount of $181,083. On appeal, Equifax chal-
lenges the award of damages and attorney’s fees. We affirm in part
and reverse and remand in part.

I.

On June 25, 2003, Suzanne Sloane entered Prince William Hospital
to deliver a baby. She left the hospital not only a new mother, but also
the victim of identity theft. A recently hired hospital employee named
 SLOANE v. EQUIFAX 3
Shovana Sloan noticed similarity in the women’s names and birth
dates and, in November and December 2003, began using Suzanne’s
social security number to obtain credit cards, loans, cash advances,
and other goods and services totaling more than $30,000. At the end
of January 2004, Suzanne discovered these fraudulent transactions
when Citibank notified her that it had cancelled her credit card and
told her to contact Equifax if she had any concerns.

Unable to reach Equifax by telephone on a Friday evening,
Suzanne went instead to the Equifax website, where she was able to
access her credit report and discovered Shovana Sloan’s name and
evidence of the financial crimes Shovana had committed. Suzanne
promptly notified the police1 and contacted Equifax, which assertedly
placed a fraud alert on her credit file. Equifax told Suzanne to "roll
up her sleeves" and start calling all of her "20-some" creditors to
notify them of the identity theft. Suzanne took the next two days off
from work to contact each of her creditors, and, at their direction, she
submitted numerous notarized forms to correct her credit history.

Suzanne, however, continued to experience problems with Equifax.
On March 31, 2004, almost two months after reporting the identity
theft to Equifax and despite her efforts to work with individual credi-
tors as Equifax had advised, Suzanne and her husband, Tracey, tried
to secure a pre-qualification letter to buy a vacation home, but were
turned down. The loan officer told them that Suzanne’s credit score
was "terrible" — in fact, the "worst" the loan officer had ever seen
— and that no loan would be possible until the numerous problems
in Suzanne’s Equifax credit report had been corrected. The loan offi-
cer also told Suzanne not to apply for additional credit in the mean-
time, because each credit inquiry would appear on her credit report
and further lower her score.

Chagrined that Equifax had not yet corrected these errors in her
credit report, Suzanne refrained from applying for any type of con-
sumer credit for seven months. But, in October 2004, after the
repeated breakdown of their family car, Suzanne and Tracey
attempted to rely on Suzanne’s credit to purchase a used car at a local
1
The police subsequently apprehended Shovana Sloan, and she was
then convicted of and imprisoned for the identity theft.
4 SLOANE v. EQUIFAX
dealership. Following a credit check, the car salesman pulled Tracey
aside and informed him that it would be impossible to approve the
financing so long as Suzanne’s name appeared on the loan. Similarly,
when the Sloanes returned to the mortgage company to obtain a home
loan in January 2005, eight months after their initial visit, they were
offered only an adjustable rate loan instead of a less expensive 30-
year fixed rate loan in part because of Equifax’s still inaccurate credit
report.

In frustration, on March 9, 2005, more than thirteen months after
first reporting the identity theft to Equifax, Suzanne sent a formal let-
ter to the credit reporting agency, disputing twenty-four specific items
in her credit report and requesting their deletion. Equifax agreed to
delete the majority of these items, but after assertedly verifying two
accounts with Citifinancial, Inc., Equifax notified Suzanne that it
would not remove these two items. At trial, Equifax admitted that
under its "verified victim policy," it should have automatically
removed these Citifinancial items at Suzanne’s request, but it failed
to do so in violation of its own written procedures.

Two months later, on May 9, 2005, Suzanne again wrote to Equi-
fax, still disputing the two Citifinancial accounts, and now also con-
testing two Washington Mutual accounts that Equifax had previously
deleted but had mistakenly restored to Suzanne’s report. When Equi-
fax attempted to correct these mistakes, it exacerbated matters further
by generating a second credit file bearing Shovana Sloan’s name but
containing Suzanne’s social security number. Compounding this mis-
take, on May 23, 2005, Equifax sent a letter to Suzanne’s house
addressed to Shovana Sloan, warning Shovana that she was possibly
the victim of identity theft and offering to sell her a service to monitor
her credit file. Then, on June 7, 2005, Equifax sent copies of both
credit reports to Suzanne; notably, both credit reports still contained
the disputed Citifinancial accounts.

The stress of these problems weighed on Suzanne and significantly
contributed to the deterioration of her marriage to Tracey. As a result
of the constant denials of credit, she refused to seek routine credit
from local stores, which, in turn, sparked angry recriminations from
Tracey. In May 2005, the credit situation forced Tracey, a high school
teacher, to abandon his plans to take a sabbatical during which he had
 SLOANE v. EQUIFAX 5
hoped to develop land for modular homes with his father. The Sloanes
frequently fought during the day and slept in separate rooms at night.
In desperation, Suzanne sought the name of a marriage counselor, but
her husband refused to go. For his part, Tracey researched how the
couple could secure a divorce and left the information for Suzanne to
find when she arrived at home from work one day. Also, during this
period, Suzanne was frequently unable to sleep at night, and as her
insomnia worsened, she found herself nodding off while driving home
from work in the evening. Even after the couple took a vacation to
reconcile in August 2005, when they returned home, they were
greeted with the denial of a line of credit from Wachovia Bank. Two
months later, in November 2005, Suzanne again applied to Wachovia
for a line of credit, and again the bank turned her down.

On November 4, 2005 — following twenty-one months of struggle
to correct her credit report — Suzanne filed this action against Equi-
fax, Trans Union, LLC, Experian Information Solutions, Inc., and
Citifinancial, alleging violations of the FCRA. After settling a sepa-
rate suit against Prince William Hospital and the personnel company
that placed Shovana Sloan in the hospital’s accounting department,
Suzanne settled her claims in this action against Experian, Trans
Union, and Citifinancial. Equifax, however, refused to settle. Thus,
the case proceeded to trial with Equifax the sole remaining defendant.
The jury returned a verdict against Equifax, awarding Suzanne
$106,000 for economic loss and $245,000 for mental anguish, humili-
ation, and emotional distress.

Equifax moved for judgment as a matter of law and for a new trial
or remittitur on the jury’s award of damages for emotional distress.
The district court denied Equifax’s post-trial motions and then, with-
out permitting Equifax to submit an opposition to Suzanne’s request
for attorney’s fees, ordered Equifax to pay $181,083 in attorney’s
fees. This appeal followed.

II.

Congress enacted the FCRA to require that consumer credit report-
ing agencies maintain "reasonable procedures for meeting the needs
of commerce for consumer credit, personnel, insurance, and other
information in a manner which is fair and equitable to the consumer,
6 SLOANE v. EQUIFAX
with regard to the confidentiality, accuracy, relevancy, and proper uti-
lization of such information." 15 U.S.C.A. § 1681(b).

In this case, the jury specifically found, via a special verdict, that
Suzanne proved by a preponderance of the evidence that Equifax vio-
lated the FCRA by negligently: (1) failing to follow reasonable proce-
dures designed to assure maximum accuracy on her consumer credit
report; (2) failing to conduct a reasonable investigation to determine
whether disputed information in her credit report was inaccurate; (3)
failing to delete information from the report that it found after rein-
vestigation to be inaccurate, incomplete, or unverified; and (4) rein-
serting information into her credit file that it had previously deleted.
On appeal, Equifax does not challenge the jury’s findings that
Suzanne proved that it violated the FCRA in all of these respects.

The FCRA provides a private cause of action for those damaged by
violations of the statute. See 15 U.S.C.A. §§ 1681n, 1681o. A suc-
cessful plaintiff can recover both actual and punitive damages for
willful violations of the FCRA, id. § 1681n(a), and actual damages for
negligent violations, id. § 1681o(a). Actual damages may include not
only economic damages, but also damages for humiliation and mental
distress. See, e.g., Guimond v. Trans Union Credit Info. Co., 45 F.3d
1329, 1333 (9th Cir. 1995); Johnson v. Dep’t of Treasury, IRS, 700
F.2d 971, 984 (5th Cir. 1983); Millstone v. O’Hanlon Reports, Inc.,
528 F.2d 829, 834-35 (8th Cir. 1976), aff’g 383 F. Supp. 269, 276
(E.D. Mo. 1974). The statute also provides that a successful plaintiff
suing under the FCRA may recover reasonable attorney’s fees. 15
U.S.C.A. §§ 1681n(a)(3), 1681o(a)(2).

Equifax does not challenge the constitutionality or applicability of
any of these statutory provisions. Rather, the company simply insists
that, despite its numerous statutory violations, the jury erred in award-
ing Suzanne damages and the court erred in awarding attorney’s fees.
We consider each of Equifax’s contentions in turn.

III.

Equifax initially contends that the district court erred in refusing to
nullify the jury verdict and grant it judgment as a matter of law. A
court may award judgment as a matter of law only if it determines
 SLOANE v. EQUIFAX 7
that there is no legally sufficient evidentiary basis for a reasonable
jury to find for the non-moving party. Fed. R. Civ. P. 50(a). Thus,
when a jury has returned its verdict, a court may grant judgment as
a matter of law only if, viewing the evidence in a light most favorable
to the non-moving party and drawing every legitimate inference in
that party’s favor, the court determines that the only conclusion a rea-
sonable jury could have reached is one in favor of the moving party.
Figg v. Schroeder, 312 F.3d 625, 635 (4th Cir. 2002). The district
court concluded that it could not so hold in this case and therefore
denied Equifax’s motion. We review de novo the grant or denial of
a motion for judgment as a matter of law. Anderson v. Russell, 247
F.3d 125, 129 (4th Cir. 2001).

A.

Equifax first argues that because Suzanne assertedly suffered a sin-
gle, indivisible injury, she should not recover any damages from
Equifax or, alternatively, her recovery should be reduced to take
account of her prior settlements with other defendants. According to
Equifax, the prior settlements have fully, or almost fully, compen-
sated Suzanne for all of her injuries.

Equifax relies on the "one satisfaction rule" to support its argu-
ment. See Chisholm v. UHP Projects, Inc., 205 F.3d 731, 737 (4th
Cir. 2000) ("[T]his equitable doctrine operates to reduce a plaintiff’s
recovery from the nonsettling defendant to prevent the plaintiff from
recovering twice from the same assessment of liability."). But, in the
case at hand, we cannot find, as a matter of law, that Suzanne has suf-
fered from a "single, indivisible harm" that has already been redressed
by other parties. See id. ("The essential requirement for the ‘one satis-
faction rule’ is that the amounts recovered by settlement and the judg-
ment must represent common damages arising from a single,
indivisible harm.").

To the contrary, Suzanne provided credible evidence that her emo-
tional and economic damages resulted from separate acts by separate
parties. She did not attempt to hold any of the credit reporting agen-
cies responsible for damages arising from either the identity theft
itself or the initial inaccuracies that the theft generated in her credit
reports. Moreover, although some of Suzanne’s interactions with
8 SLOANE v. EQUIFAX
Equifax overlapped with exchanges with other credit reporting agen-
cies, her encounters with Equifax both predate and postdate these
other exchanges. For example, Suzanne initially contacted Equifax on
February 2, 2004, more than a year before she contacted Experian and
Trans Union, and Equifax’s reporting errors persisted long after Trans
Union and Experian had rectified the errors in their reports.

Further, during the period when Suzanne attempted to correct the
mistakes made by all three agencies, each agency produced reports
with different inaccuracies, and each agency either corrected or exac-
erbated these mistakes independently of the others. Thus, even during
this period, the inaccuracies in Equifax’s credit reports caused
Suzanne discrete injuries independent of those caused by the other
credit reporting agencies.

For all of these reasons, we reject Equifax’s argument that Suzanne
has suffered from a single, indivisible injury or has been doubly com-
pensated as a consequence of her prior settlements.2

B.

Equifax next argues that the evidence does not support any award
for economic losses. Equifax claims that only speculation and conjec-
ture support such an award, and so the district court erred in denying
Equifax’s motion for judgment as to this award.

We disagree. The evidence at trial in this case clearly demonstrates
that on numerous occasions Suzanne attempted to secure lines of
credit from a variety of financial institutions, only to be either denied
outright or offered credit on less advantageous terms that she might
2
Arguably, the "one satisfaction rule" does not even apply to FCRA
claims. Cf. Ferris v. Haymore, 967 F.2d 946, 955-58 (4th Cir. 1992)
(holding that damages award against defendants under the Motor Vehicle
Information and Cost Savings Act, Pub. L. No. 92-513, § 409(a), 86 Stat.
947, 963 (1972) (current version at 49 U.S.C.A. § 32710(a) (West
2007)), cannot be reduced by the amount plaintiff received in settlement
from other persons participating in the violation). We need not reach this
question in light of our holding that the injury caused by Equifax is divis-
ible from the other injuries Sloane suffered.
 SLOANE v. EQUIFAX 9
have received absent Equifax’s improper conduct. At times, these
financial institutions consulted credit reports from other agencies, but
at other times these institutions relied exclusively on the erroneous
credit information provided by Equifax. Based on these incidents, we
find that there is a legally sufficient evidentiary basis for a reasonable
jury to have found that Equifax’s conduct resulted in economic losses
for Suzanne. Therefore, the district court did not err in denying Equi-
fax’s motion regarding this award.

IV.

Additionally, Equifax asserts that the district court erred in refusing
to order remittitur of the mental anguish, humiliation, and emotional
distress damages award to no more than $25,000. See Fed. R. Civ. P.
59(a); see also Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 305-06
(4th Cir. 1998). Equifax contends that the jury’s award of $245,000
is inconsistent with awards in similar cases and is disproportionate to
any actual injury proved at trial. Suzanne, by contrast, contends that
the evidence provides more than adequate support for the jury’s
award. To resolve this question, we set forth the relevant governing
principles, apply these principles to the evidence before the jury, and
compare the evidence and emotional distress award in Suzanne’s case
with the evidence and award in all assertedly relevant cases. Our anal-
ysis leads us to the conclusion that both Equifax and Suzanne’s posi-
tions must be rejected. For reasons that we explain below, we find
that the jury’s emotional distress award was in fact excessive, but not
to the extent that Equifax maintains.

We begin with Federal Rule of Civil Procedure 59(a), which pro-
vides that if a court concludes that a jury award of compensatory
damages is excessive, it may order a new trial nisi remittitur. See 11
Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal
Practice and Procedure § 2820 (2d ed. 1995). We have long recog-
nized that the decision as to whether to grant a new trial on such
grounds is "entrusted to the sound discretion of the district court and
[such determinations] will be reversed on appeal only upon a showing
of abuse of discretion. . . . giv[ing] the benefit of every doubt to the
judgment of the trial judge." Cline, 144 F.3d at 305 (internal quota-
tion marks omitted). A district court abuses its discretion only by
upholding an award of damages when "the jury’s verdict is against the
10 SLOANE v. EQUIFAX
weight of the evidence or based on evidence which is false." Id.
(quoting Atlas Food Sys. & Servs., Inc. v. Crane Nat’l Vendors, Inc.,
99 F.3d 587, 594 (4th Cir. 1996)).

In this case, the district court found that the jury’s emotional dis-
tress award was "not an unreasonable conclusion from this evidence."
The court noted that the jury could base its award on Equifax’s spe-
cific actions, as distinct from those of the other credit reporting agen-
cies, and that Equifax’s actions directly led to the mounting
frustration and distress that Suzanne felt for almost two years. As one
example of Equifax’s specific actions, the court recalled the letter that
Equifax sent to Suzanne, many months after she had notified Equifax
of the identity theft, bearing the name of the identity thief and warn-
ing the thief, not Suzanne, that the thief’s personal information was
in peril. Furthermore, the district court underscored the deference
accorded jury verdicts, noting that, in the present case, a jury of "ordi-
nary people from the community," after having "listen[ed] to the evi-
dence" and being "given proper instructions about . . . not letting
passion or sympathy affect them," made a "rational decision" and
returned an award of $245,000 for mental anguish, humiliation, and
emotional distress. Clearly, the district court, which observed the trial
witnesses first-hand, concluded that the weight of the evidence sup-
ported the amount of the jury’s award.

Moreover, Equifax does not deny that Suzanne suffered emotional
distress. Nor does Equifax contend that Suzanne failed to produce
sufficient evidence to sustain some award for this injury. Rather,
Equifax simply proposes replacing the jury’s number with one of its
own invention — offering $25,000 in place of $245,000. Yet when
asked at oral argument to explain the basis for the proposed remittitur,
Equifax’s counsel could offer no legal or factual basis for this
amount, conceding that the number had been taken "out of the air."
Not only is such an unprincipled approach intrinsically unsound, but
it also directly contravenes the Seventh Amendment, which precludes
an appellate court from replacing an award of compensatory damages
with one of the court’s own choosing. See Cline, 144 F.3d at 305 n.2
(citing Kennon v. Gilmer, 131 U.S. 22 (1889)). In short, the issue
before us is neither whether Suzanne offered sufficient evidence at
trial to sustain an award for emotional distress nor whether we believe
that Equifax’s "out of the air" $25,000 represents a fair estimate of
 SLOANE v. EQUIFAX 11
those damages, but whether the jury’s award is excessive in light of
evidence presented at trial. See id. 144 F.3d at 305.

Our previous cases establish the type of evidence required to sup-
port an award for emotional damages. We have warned that "[n]ot
only is emotional distress fraught with vagueness and speculation, it
is easily susceptible to fictitious and trivial claims." Price v. City of
Charlotte, 93 F.3d 1241, 1250 (4th Cir. 1996). For this reason,
although specifically recognizing that a plaintiff’s testimony can pro-
vide sufficient evidence to support an emotional distress award, we
have required a plaintiff to "reasonably and sufficiently explain the
circumstances of [the] injury and not resort to mere conclusory state-
ments." Id. at 1251 (internal quotation marks omitted); see also Bry-
ant v. Aiken Reg’l Med. Ctrs, Inc., 333 F.3d 536, 546-47 (4th Cir.
2003); Dennis v. Columbia Colleton Med. Ctr, Inc., 290 F.3d 639,
653 (4th Cir. 2002). Thus, we have distinguished between plaintiff
testimony that amounts only to "conclusory statements" and plaintiff
testimony that "sufficiently articulate[s]" true "demonstrable emo-
tional distress." Price, 93 F.3d at 1254.

In Knussman v. Maryland, 272 F.3d 625 (4th Cir. 2001), we sum-
marized the factors properly considered in determinating the potential
excessiveness of an award for emotional distress. They include the
factual context in which the emotional distress arose; evidence cor-
roborating the testimony of the plaintiff; the nexus between the con-
duct of the defendant and the emotional distress; the degree of such
mental distress; mitigating circumstances, if any; physical injuries
suffered due to the emotional distress; medical attention resulting
from the emotional duress; psychiatric or psychological treatment;
and the loss of income, if any. Id. at 640 (citing Price, 93 F.3d at
1254).

In the present case, Suzanne offered considerable objective verifi-
cation of her emotional distress, chronic anxiety, and frustration dur-
ing the twenty-one months that she attempted to correct Equifax’s
errors. First, her repeated denials of credit and continuous problems
with Equifax furnish an objective and inherently reasonable "factual
context" for her resulting claims of emotional distress. Suzanne also
corroborated her account in two ways. She offered "sufficiently artic-
ulated" descriptions of her protracted anxiety through detailed testi-
12 SLOANE v. EQUIFAX
mony of specific events and the humiliation and anger she
experienced as a result of each occurrence. She also provided evi-
dence that the distress was apparent to others, particularly her family;
Tracey, for instance, described in detail his wife’s ongoing struggles
with Equifax and the emotional toll these events took upon her. In
addition, substantial trial evidence attested to the direct "nexus"
between Equifax’s violations of the FCRA and Suzanne’s emotional
distress. Furthermore, Suzanne’s emotional distress manifested itself
in terms of physical symptoms, particularly insomnia.

Moreover, Suzanne offered evidence that this stress eventually
came to affect her marriage to Tracey; the couple began to sleep apart
and contemplate divorce. Seeking to avert this, Suzanne went to the
human resources department of her employer and asked if marriage
counseling were available. After receiving the name of a counselor,
she begged her husband to enter counseling with her, but he refused,
declaring that the problem was obviously "bad credit" and no mar-
riage counselor, however skilled, could resolve that problem. Suzanne
testified that she worried that if she and her husband separated, her
poor credit history would make it exceedingly difficult for her to
secure a lease in her own name or to arrange for household utilities.

Reviewing this evidence in light of the appropriate factors already
set forth, we conclude that substantial, if not overwhelming, objective
evidence supports an emotional distress award. Equifax ignores much
of this evidence, however, and insists that an award of $245,000 is
"inconsistent with awards in other similar cases." Br. of Appellant at
45. But Equifax relies on cases which are in fact not very "similar"
to the case at hand and so provide little assistance in assessing the
amount of the emotional distress award here.

Equifax principally looks to three employment discrimination cases
in which we have ordered remittitur of emotional distress awards. But
in those cases the asserted emotional distress did not "persist[ ] over
time" or even affect the employee’s ability to continue "to perform his
job," Cline, 144 F.3d at 305; Price, 93 F.3d at 1254-55 (noting that
plaintiffs offered no evidence as to how the "alleged distress mani-
fested itself"); Hetzel v. County of Prince William, 89 F.3d 169, 172
(4th Cir. 1996) (noting that testimony showed plaintiff was only
"briefly distraught"). Moreover, in stark contrast to the corroborated
 SLOANE v. EQUIFAX 13
evidence of "sufficiently articulated," true "demonstrable emotional
distress" offered by Suzanne, Price, 93 F.3d at 1254, the plaintiffs in
these cases relied almost exclusively on conclusory testimony. See
Cline, 144 F.3d at 304-06; Price, 93 F.3d at 1251, 1255; Hetzel, 89
F.3d at 171-72.

In addition to citing these cases, Equifax also argues that several
FCRA cases demonstrate that violations of the statute warrant only
minimal emotional distress awards. Yet, once more, Equifax’s author-
ities prove to be less than useful guides. One case Equifax cites
hinges on the same type of conclusory testimony described above. See
Cousin v. Trans Union Corp., 246 F.3d 359, 370-71 (5th Cir. 2001).
A second simply reflects a modest jury award based on little or no
actual distress. See Jones v. Credit Bureau of Huntington, Inc., 399
S.E.2d 694, 695-701 (W. Va. 1990). The remainder occurred twenty-
five or more years ago and involved local credit bureaus whose inac-
curacies lacked the nearly inescapable reach of the national credit
reporting agencies. See Bryant v. TRW, Inc., 689 F.2d 72, 75 (6th Cir.
1982); Thompson v. San Antonio Retail Merchs. Ass’n, 682 F.2d 509,
512 (5th Cir. 1982); Millstone, 528 F.2d at 834 (8th Cir. 1976).

As Equifax’s authorities indicate, finding helpful precedent for
comparison here is not a simple task. The recent emergence of iden-
tity theft and the rapid growth of the credit-reporting industry present
a unique dilemma without clear precedent. When Congress enacted
the FCRA in 1970, it recognized the vital role that credit-reporting
agencies had assumed within the burgeoning culture of American
consumerism. See Fair Credit Reporting Act, Pub. L. No. 91-508,
§ 602(a), 84 Stat. 1127, 1128 (1970). Since the mid-1980s, the intro-
duction of computerized information technology and data-
warehousing has led to the national consolidation of the credit-
reporting industry into the "Big Three" — Equifax, Experian, and
Trans Union — and rendered credit reporting an integral part of our
most ordinary consumer transactions. According to recent data, each
of these national credit-reporting agencies has perhaps 1.5 billion
credit accounts held by approximately 190 million individuals. See
Robert B. Avery et al., An Overview of Consumer Data and Credit
Reporting, Fed. Res. Bull., Feb. 2003, at 49, available at http://
www.federalreserve.gov/pubs/bulletin/2003/0203lead.pdf. Each
receives more than two billion items of information every month, and
14 SLOANE v. EQUIFAX
together these three agencies issue approximately two million con-
sumer credit reports each day. Id. at 48-49.

Against this backdrop, identity theft has emerged over the last
decade as one of the fastest growing white-collar crimes in the United
States. While earlier estimates placed identity theft at between
500,000 to 700,000 individuals per year, more recent random victim-
ization surveys conducted by Synovate for the Federal Trade Com-
mission estimate that, between 1998 and 2003, approximately 27.3
million adults discovered they were the victims of identity theft, with
9.91 million adults discovering they were victims in 2003 alone. See
Graeme R. Newman & Megan M. NcNally, Identity Theft Literature
Review 14 (2005), http://www.ncjrs.gov/pdffiles1/nij/grants/
210459.pdf (citing Synovate, Federal Trade Commission — Identity
Theft Survey Report 7, 12 (2003), http://www.ftc.gov/os/2003/09/
synovatereport.pdf). Given the rapid emergence of identity theft in the
last decade, it comes as no surprise that past precedent fails to fully
reflect the unfortunate current reality.

Nonetheless, we are not wholly without help. First, there are a few,
more recent FCRA cases, upon which Equifax does not rely, that pro-
vide assistance in this regard. Suzanne points to a recent Sixth Circuit
case, Bach v. First Union Nat’l Bank, 149 Fed. Appx. 354, 362-63
(6th Cir. 2005) (unpublished), in which the court upheld a jury award
of $400,000 for compensatory damages in factually similar circum-
stances, involving protracted attempts to resolve reporting inaccura-
cies and repeated denials of credit. This case provides support for the
$245,000 award here, but it seems to stand alone.

A survey of the other, more recent FCRA cases that involve
requests for remittitur of emotional distress awards suggests that
approved awards more typically range between $20,000 and $75,000.
See Zamora v. Valley Fed. Sav. & Loan Ass’n of Grand Junction, 811
F.2d 1368, 1371 (10th Cir. 1987) (upholding a jury award of
$61,500); Cortez v. Trans Union, LLC, No. 05-cv-05684-JF, 2007
WL 2702945, at *2 (E.D. Pa. Sept. 13, 2007) (refusing to remit a jury
award of $50,000); Boris v. Choicepoint Servs., Inc., 249 F. Supp. 2d
851, 860-61 (W.D. Ky. 2003) (remitting a jury award of $197,000 to
$100,000, including a $75,000 award for emotional distress); Ander-
 SLOANE v. EQUIFAX 15
son v. Conwood Co., 34 F. Supp. 2d 650, 656 (W.D. Tenn. 1999)
(remitting a jury award of $2,000,000 to $50,000).

This handful of cases, while helpful, differs from the case at hand.
For, unlike the plaintiffs in those cases, Suzanne did not suffer from
isolated or accidental reporting errors. Rather, as a victim of identity
theft, she suffered the systematic manipulation of her personal infor-
mation, which, despite her best efforts, Equifax failed to correct over
a protracted period of time. Of course, Equifax bore no responsibility
for the initial theft, but the FCRA makes the company responsible for
taking reasonable steps to correct Suzanne’s credit report once she
brought the theft to the company’s attention; this Equifax utterly
failed to do. A reasonable jury could conclude that Equifax’s repeated
errors engendered more emotional distress than that found in these
other FCRA cases.

We also believe that some guidance can be gained from case law
concerning defamation. Prior to the enactment of the FCRA, defama-
tion was one of several common-law actions used by plaintiffs in
response to the dissemination of inaccurate credit information.3 These
common-law causes of action parallel those offered under the FCRA
in that they typically involve a defendant found liable for propagating
inaccurate information about the plaintiff, and the effects, while
unquestionably harmful, are difficult to translate into monetary terms.
Moreover, unlike many of the employment discrimination claims
cited by Equifax, both defamation and FCRA cases usually contain
a crucial objective dimension — the extent of the false information
3
A provision of the FCRA bars consumers from bringing actions "in
the nature of defamation, invasion of privacy, or negligence" in certain
specified contexts, except as those causes of action arise under sections
1681n and 1681o of the FCRA. 15 U.S.C.A. § 1681h(e). But see Yutesler
v. Sears Roebuck & Co., 263 F. Supp. 2d 1209, 1212 (D. Minn. 2003)
(finding the plaintiff’s common-law defamation claim not preempted by
the FCRA); Carlson v. Trans Union, LLC, 259 F. Supp. 2d 517, 521-22
(N.D. Tex. 2003) (same); Dornhecker v. Ameritech Corp., 99 F. Supp.
2d 918, 930-31 (N.D. Ill. 2000) (same); see also Tracy Bateman Farrell,
Preemption of State Law by Fair Credit Reporting Act, 8 A.L.R. Fed. 2d
233, §§ 10-12, 16-17 (2006) (summarizing case law finding no preemp-
tion by the FCRA).
16 SLOANE v. EQUIFAX
communicated about an individual — that provides some external
measure to the otherwise subjective question of emotional distress.
Although such determinations depend a great deal upon the specific
facts of each case, courts frequently sustain emotional distress awards
in the range of $250,000 in defamation cases. See, e.g., Stamathis v.
Flying J, Inc., 389 F.3d 429, 439 (4th Cir. 2004) (upholding an award
of $240,000 for "insult, pain, and mental suffering"); Simon v. Shear-
son Lehman Bros., Inc., 895 F.2d 1304, 1319-20 (11th Cir. 1990)
(upholding an award of $250,000, given that the slander caused "an
impairment of [the plaintiff’s] reputation, personal humiliation, and
mental anguish and suffering").4

We do not believe the evidence presented here permits an award
of this magnitude because, after all, this case does not involve actual
defamation. Moreover, Suzanne presented almost no evidence at trial
to suggest that Equifax’s violations of the FCRA resulted in harm to
her reputation, and it appears that few people beyond Suzanne’s fam-
ily and potential creditors knew of her disastrous credit file. We there-
fore believe that the maximum award supported by the evidence here
must be significantly less than these defamation awards. But, consid-
ering the extensive corroboration offered at trial concerning the many
months of emotional distress, mental anguish, and humiliation suf-
fered by Suzanne, we believe that the evidence does support an award
in the maximum amount of $150,000. We recognize that even this
amount is appreciably more than that awarded for emotional distress
in most other FCRA cases.5 But, as explained earlier, the case at hand
4
We recognize that, in cases that involve physical injuries, states that
limit recovery for non-economic losses typically set a cap between
$250,000 and $500,000, see, e.g., Cal. Civ. Code § 3333.2 (West 2007)
(limiting non-economic losses to $250,000); Kan. Civ. Proc. Code Ann.
§ 60-19a02 (West 2006) (limiting recovery for pain and suffering in a
personal injury action to $250,000), with a handful of states setting the
limit at $750,000 or more, see, e.g., 735 Ill. Comp. Stat. Ann. 5/2-1706.5
(West 2007) (limiting non-economic damages for medical malpractice
claims to $1,000,000). Even though such non-economic harms often go
far beyond emotional distress to include awards for pain and suffering
and loss of consortium, these statutory caps do suggest the boundaries
that state legislatures have adopted regarding monetary awards for intan-
gible harms and, a fortiori, emotional distress.
5
The single exception is Bach. 149 Fed. Appx. at 362-63. As explained
within, we regard the $400,000 award in that case an anomaly.
 SLOANE v. EQUIFAX 17
differs significantly from those cases. A $150,000 award reflects
those differences — the repeated violations of the FCRA found by the
jury in its special verdict, the number of errors contained in Equifax’s
credit reports, and the protracted length of time during which Equifax
failed to correct Suzanne’s credit file. Accordingly, we reduce the
emotional distress award to $150,000 and grant a new trial nisi remit-
titur at Suzanne’s option.

V.

Finally, Equifax challenges the district court’s order regarding
attorney’s fees. At a post-trial hearing, the district court denied Equi-
fax’s express request to submit a written opposition to Suzanne’s
motion for attorney’s fees. Instead, after brief oral arguments, the dis-
trict court granted Suzanne’s motion for attorney’s fees in the entire
amount requested — $181,083.

At the time of the hearing, Federal Rule of Civil Procedure
54(d)(2)(C) provided that "[o]n request of a party or class member,
the court shall afford an opportunity for adversary submissions with
respect to the motion in accordance with Rule 43(e) or Rule 78." Fed.
R. Civ. P. 54(d)(2)(C)(2006)(amended April 30, 2007, effective
December 1, 2007). Prior to the hearing, Equifax believed that it
would have an opportunity to submit a written opposition, and it
repeatedly requested such an opportunity during the fees hearing. The
language of Rule 54(d)(2)(C) was not discretionary; Equifax should
have been allowed to submit materials to the district court. Accord-
ingly, we vacate the grant of attorney’s fees and remand the case to
the district court to permit Equifax such an opportunity.

VI.

For the foregoing reasons, the judgment of the district court is

AFFIRMED IN PART AND REVERSED
AND REMANDED IN PART.