Cushman v. Trans Union Corp

Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit

6-9-1997

Cushman v. Trans Union Corp
Precedential or Non-Precedential:

Docket 96-1553

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Filed June 9, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-1553

JENNIFER CUSHMAN,
Appellant

v.

TRANS UNION CORPORATION

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 95-cv-01743)

Argued April 17, 1997

BEFORE: SCIRICA, COWEN and NYGAARD Circuit Judges

(Filed June 9, 1997)

Scott D. Godshall, Esq.
Eric J. Rothschild, Esq. (argued)
Pepper, Hamilton & Scheetz
18th & Arch Streets
3000 Two Logan Square
Philadelphia, PA 19103-2799

Counsel for Appellant

Mark E. Kogan, Esq. (argued)
Marion, Satzberg, Trichon & Kogan
1735 Market Street
3000 Mellon Bank Building
Philadelphia, PA 19103

Counsel for Appellee
OPINION OF THE COURT

COWEN, Circuit Judge.

This appeal concerns, among other issues, the extent of
a consumer reporting agency's obligation, pursuant to
section 611(a) of the Fair Credit Reporting Act ("FCRA"), 15
U.S.C. § 1681i(a) (1982), to conduct a reasonable
reinvestigation of information on a consumer's credit report
alleged by the consumer to be inaccurate. We hold that the
district court erred to the extent that it concluded as a
matter of law that defendant Trans Union Corporation
("TUC") fulfilled its obligation under § 1681i(a). Therefore,
we will reverse and remand the district court's grant of
judgment as a matter of law on plaintiff-appellant Jennifer
Cushman's claim for negligent noncompliance with that
section.

We also hold that Cushman has produced sufficient
evidence from which a reasonable jury could find that she
has proved the publication element of her defamation claim
and her claims pursuant to the Vermont Fair Credit
Reporting Act ("VFCRA"), VT. STAT. ANN. tit. 9, §§ 2480a et
seq. (1993). We will reverse and remand the district court's
grant of judgment as a matter of law on those claims.
Finally, we remand to the district court to determine
whether Cushman has produced evidence sufficient to
justify an award of punitive damages and to avoid
preemption of her defamation claim.

I.

To the extent the facts are disputed, we view them in the
light most favorable to Cushman. Cushman has a
permanent residence in Pennsylvania but attended college
in Vermont during the time period pertinent to this
litigation. In the summer of 1993, an unknown person,
possibly a member of her household in Philadelphia,
applied under Cushman's name for credit cards from three
credit grantors: American Express ("Amex"), Citibank Visa
("Citibank"), and Chase Manhattan Bank ("Chase"). The

2
person provided the credit grantors with Cushman's social
security number, address, and other identifying
information. Credit cards were issued to that person in
Cushman's name, and that person accumulated balances
totaling approximately $2400 on the cards between June of
1993 and April of 1994. All this occurred without
Cushman's knowledge.

In August of 1994, an unidentified bill collector informed
Cushman that TUC was publishing a consumer credit
report indicating that she was delinquent on payments to
these three credit grantors. Cushman notified TUC that she
had not applied for or used the three credit cards in
question, and suggested that a third party had fraudulently
applied for and obtained the cards. In response, a TUC
clerk called Amex and Chase to inquire whether the
verifying information (such as Cushman's name, social
security number, and address) in Amex's and Chase's
records matched the information in the TUC report. The
TUC clerk also asked if Cushman had opened a fraud
investigation with the credit grantors. Because the
information matched, and because Cushman had not
opened a fraud investigation, the information remained in
the TUC report. TUC was unable to contact Citibank so
TUC deleted the Citibank entry from the report. TUC's
investigations are performed by clerks paid $7.50 per hour
and who are expected to perform ten investigations per
hour.

There is no evidence that TUC took the necessary steps
to obtain access to pertinent documents from the credit
grantors that would enable TUC to perform a handwriting
comparison. TUC did allow Cushman the opportunity to
complete a form requesting that a special handling
statement be placed on her report, and that form required
her signature. However, a TUC employee testified that the
form would not have been used for a handwriting
comparison had Cushman completed it. TUC advises
consumers in Cushman's position to communicate with the
credit grantors and complete signature verifications and
affidavits of fraud with the credit grantors.

Cushman was sent a copy of the updated report still
containing the Amex and Chase delinquencies. She sent a

3
second letter to TUC reiterating her disagreement with the
facts contained in the report and offering to sign affidavits
for TUC to the effect that the delinquencies were not hers.
TUC subsequently performed a reinvestigation identical to
the first one but did nothing more. The credit report was
not changed. At no time did TUC provide Cushman with a
description of its reinvestigation procedures.

Cushman brought this action in the district court
alleging negligent and willful failure to reinvestigate the
disputed entries in violation of sections 611(a), 616, and
617 of the FCRA, 15 U.S.C. §§ 1681i(a), 1681n, 1681o;
violations of the VFCRA, VT. STAT. ANN. tit. 9, §§ 2480a et
seq.; and defamation. Subsequently, in April of 1995, TUC
verified the information with Citibank, and placed the
Citibank entry back onto Cushman's report. TUC notified
Cushman of the reinsertion through her attorneys.

That September, Cushman for the first time disputed the
delinquencies with the three credit grantors. A Citibank
employee, comparing a handwriting sample provided by
Cushman with the credit card application, determined that
the card had been fraudulently obtained. The other two
credit grantors came to a similar conclusion. TUC has since
deleted the entries from Cushman's report.

TUC subsequently moved for summary judgment
pursuant to Fed. R. Civ. P. 56, raising several issues
addressed by this appeal. The district court denied the
motion. See Cushman v. Trans Union Corp., 920 F. Supp.
80, 83-84 (E.D. Pa. 1996). However, at the close of
Cushman's presentation of her case at trial, the district
court sua sponte granted TUC judgment as a matter of law
pursuant to Fed. R. Civ. P. 50(a) on all claims. Cushman
timely appealed.

II.

A.

As this Court recently wrote:

The FCRA was enacted in order to ensure that
"consumer reporting agencies adopt reasonable

4
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, with regard to the confidentiality,
accuracy, relevancy, and proper utilization of such
information." The FCRA was prompted by
"congressional concern over abuses in the credit
reporting industry." In the FCRA, Congress has
recognized the crucial role that consumer reporting
agencies play in collecting and transmitting consumer
credit information, and the detrimental effects
inaccurate information can visit upon both the
individual consumer and the nation's economy as a
whole.

Philbin v. Trans Union Corp., 101 F.3d 957, 962 (3d Cir.
1996) (quoting 15 U.S.C. § 1681(b) and Guimond v. Trans
Union Credit Information Co., 45 F.3d 1329, 1333 (9th Cir.
1995)) (citations omitted).

Title 15 U.S.C. § 1681i(a) provides in relevant part:

If the completeness or accuracy of any item of
information contained in [her] file is disputed by a
consumer, and such dispute is directly conveyed to the
consumer reporting agency by the consumer, the
consumer reporting agency shall within a reasonable
period of time reinvestigate and record the current
status of that information unless it has reasonable
grounds to believe that the dispute by the consumer is
frivolous or irrelevant. If after such reinvestigation such
information is found to be inaccurate or can no longer
be verified, the consumer reporting agency shall
promptly delete such information.

"Sections 1681n and 1681o of Title 15 respectively
provide private rights of action for willful and negligent
noncompliance with any duty imposed by the FCRA and
allow recovery for actual damages and attorneys' fees and
costs, as well as punitive damages in the case of willful
noncompliance." Philbin, 101 F.3d at 962.1
_________________________________________________________________

1. The Fair Credit Reporting Act has since been amended, effective
September 30, 1997, by the Consumer Credit Reporting Reform Act of
1996, Pub. Law 104-208, Div. A, Title II, §§ 2401 et seq., 110 Stat. 3009,
___-___. The amendments are not relevant to the issues raised in this
appeal.

5
1.

As an initial matter, we reject the suggestion made by
TUC that no cause of action lies pursuant to § 1681i(a) on
the ground that § 1681i(b) and (c) provide the exclusive
remedy when a consumer disputes information that has
been placed on her credit report. Those subsections provide
that in the event a dispute under subsection (a) is not
resolved, "the consumer may file a brief statement setting
forth the nature of the dispute," 15 U.S.C. § 1681i(b), and
the statement or a summary must be included in the
consumer's credit report. See 15 U.S.C. § 1681i(c).

Subsections (b) and (c) have not been read as providing
the exclusive remedy for a consumer in Cushman's
position. See Henson v. CSC Credit Servs., 29 F.3d 280,
286 (7th Cir. 1994); Cahlin v. General Motors Acceptance
Corp., 936 F.2d 1151, 1160 (11th Cir. 1991); Pinner v.
Schmidt, 805 F.2d 1258, 1261-62 (5th Cir. 1986); see also
Guimond, 45 F.3d at 1335 (dictum); cf. Thompson v. San
Antonio Retail Merchants Assoc., 682 F.2d 509, 514-15 (5th
Cir. 1982) (consumer need not pursue remedies under
§ 1681i before suing under § 1681e). The obligations
prescribed by subsections (b) and (c) are triggered only after
"the reinvestigation [pursuant to subsection (a)] does not
resolve the dispute." 15 U.S.C. § 1681i(b). This presupposes
that a reasonable reinvestigation has already been
completed and the dispute nonetheless remains unresolved.
See Guimond, 45 F.3d at 1335. A consumer alleging that no
reasonable reinvestigation has taken place has a separate
claim pursuant to § 1681i(a).

2.

We now turn to the questions of a consumer reporting
agency's obligations pursuant to § 1681i(a) and a plaintiff 's
burden of proving a claim of negligent noncompliance with
that section. TUC contends that § 1681i(a) did not impose
on it an obligation to do any more than perform the
reinvestigation it performed in this case. That is, TUC
believes that when a consumer informs a consumer
reporting agency that information contained in her
consumer report is inaccurate, the consumer reporting

6
agency is obliged only to confirm the accuracy of the
information with the original source of the information.
According to TUC, it is never required to go beyond the
original source in ascertaining whether the information is
accurate.

This position has been rejected by the United States
Courts of Appeals for the Fifth and Seventh Circuits. See
Henson, 29 F.3d at 286-87; Stevenson v. TRW Inc., 987
F.2d 288, 293 (5th Cir. 1993). In Henson, a state court
judgment docket erroneously stated that an outstanding
judgment had been entered against the plaintiff. Two credit
reporting agencies included the erroneous entry on their
consumer reports regarding the plaintiff. See Henson, 29
F.3d at 282-83. The plaintiff sued those credit reporting
agencies pursuant to both § 1681e(b) and § 1681i. See id. at
284, 286. Section 1681e(b) requires consumer reporting
agencies "to follow `reasonable procedures to assure
maximum possible accuracy' of the information" contained
in the credit report. Id. at 284 (quoting 15 U.S.C.
§ 1681e(b)).

The Seventh Circuit upheld the district court's dismissal
of the § 1681e(b) claim. See id. at 285-86. However, the
court reversed the district court's dismissal of the § 1681i
claim, distinguishing between the duties imposed by the
two sections of the statute. It stated:

A credit reporting agency that has been notified of
potentially inaccurate information in a consumer's
credit report is in a very different position than one
who has no such notice. . . . [A] credit reporting agency
may initially rely on public court documents, because
to require otherwise would be burdensome and
inefficient. However, such exclusive reliance may not be
justified once the credit reporting agency receives notice
that the consumer disputes information contained in his
credit report. When a credit reporting agency receives
such notice, it can target its resources in a more
efficient manner and conduct a more thorough
investigation.

Id. at 286-87 (emphasis added).

7
The Fifth Circuit came to a similar conclusion in
Stevenson, 987 F.2d at 293. In that case, similar to the
situation here, the consumer's son had fraudulently
obtained accounts in the consumer's name. See id. at 291.
Other inaccurate information appeared on the credit report
as well. See id. The credit reporting agency sent written
forms to the credit granting agencies that had originally
supplied information concerning the consumer, and relied
on those credit grantors to make the conclusive
determination of whether the information was accurate. See
id. at 293. Holding that this was insufficient, the court
wrote: "In a reinvestigation of the accuracy of credit reports
[pursuant to § 1681i(a)], a credit bureau must bear some
responsibility for evaluating the accuracy of information
obtained from subscribers." Id. (citing Swoager v. Credit
Bureau of Greater St. Petersburg, 608 F. Supp. 972, 976
(M.D. Fla. 1985)).

The court reasoned that such a result was the only one
consistent with the language of § 1681i(a), which requires
"that the `consumer reporting agency shall within a
reasonable period of time reinvestigate' and `promptly
delete' inaccurate or unverifiable information." Id. (quoting
15 U.S.C. § 1681i(a)) (emphasis in Stevenson). The court
expressly rejected the same argument made here by TUC:
"that where fraud has occurred, the consumer must resolve
the problem with the creditor." Id. Rather, "[t]he statute
places the burden of investigation squarely on" the
consumer reporting agency. Id.

We agree with the conclusions reached by these courts.
We assume for the sake of argument, as the Seventh
Circuit concluded, that the costs of requiring consumer
reporting agencies to go beyond the original source of
information as an initial matter outweigh any potential
benefits of such a requirement. Thus, we can assume that
absent any indication that the information is inaccurate,
the statute does not mandate such an investigation.
However, as the Henson court explained, once a claimed
inaccuracy is pinpointed, a consumer reporting agency
conducting further investigation incurs only the cost of
reinvestigating that one piece of disputed information. In
short, when one goes from the § 1681e(b) investigation to

8
the § 1681i(a) reinvestigation, the likelihood that the cost-
benefit analysis will shift in favor of the consumer increases
markedly. Judgment as a matter of law, even if appropriate
on a § 1681e(b) claim, thus may not be warranted on a
§ 1681i(a) claim.

We also agree with the cogent observation by the Fifth
Circuit that the plain language of the statute places the
burden of reinvestigation on the consumer reporting
agency. See Stevenson, 987 F.2d at 293. The FCRA evinces
Congress's intent that consumer reporting agencies, having
the opportunity to reap profits through the collection and
dissemination of credit information, bear "grave
responsibilities," 15 U.S.C. § 1681(a)(4), to ensure the
accuracy of that information. The "grave responsibilit[y]"
imposed by § 1681i(a) must consist of something more than
merely parroting information received from other sources.
Therefore, a "reinvestigation" that merely shifts the burden
back to the consumer and the credit grantor cannot fulfill
the obligations contemplated by the statute.

In addition to these observations, we note that TUC's
reading of § 1681i(a) would require it only to replicate the
efforts it must undertake in order to comply with
§ 1681e(b). Such a reading would render the two sections
largely duplicative of each other. We strive to avoid a result
that would render statutory language superfluous,
meaningless, or irrelevant. See Sekula v. F.D.I.C., 39 F.3d
448, 454 n.14 (3d Cir. 1994); Pennsylvania Dept. of Public
Welfare v. United States Dept. of Health and Human Servs.,
928 F.2d 1378, 1385 (3d Cir. 1991).

TUC contends that Podell v. Citicorp Diners Club, Inc.,
Nos. 96-7246, 314, 1997 WL 220320 (2d Cir. May 5, 1997),
compels that we affirm. TUC is mistaken. In Podell, after
being notified by a consumer of a dispute, a consumer
reporting agency had performed the same sort of
perfunctory reinvestigation that TUC performed here. See
id. at *3. As here, the consumer sued the consumer
reporting agency pursuant to 15 U.S.C. § 1681i. See id.2
_________________________________________________________________

2. Podell also concerned a claim against a different consumer reporting
agency pursuant to 15 U.S.C. § 1681e(b). That portion of the opinion is
not relevant to our discussion.

9
However, the consumer in Podell did not contend that the
extent of the reinvestigation was unreasonably narrow, as
Cushman argues here. Rather, the consumer's position in
that case was that the consumer reporting agency never
sent him an updated credit report or any other notice that
a reinvestigation had been performed. See id. Therefore, he
argued, he never had an opportunity to place a statement
of dispute in his file pursuant to § 1681i(b) and (c). See id.
As the consumer in Podell never took issue with the
reasonableness of the scope of the consumer reporting
agency's reinvestigation, the Court of Appeals for the
Second Circuit had no occasion to address this issue.

We hold that in order to fulfill its obligation under
§ 1681i(a) "a credit reporting agency may be required, in
certain circumstances, to verify the accuracy of its initial
source of information." Henson, 29 F.3d at 287. We further
hold that "[w]hether the credit reporting agency has a duty
to go beyond the original source will depend" on a number
of factors. Id. One of these is "whether the consumer has
alerted the reporting agency to the possibility that the
source may be unreliable or the reporting agency itself
knows or should know that the source is unreliable." Id. A
second factor is "the cost of verifying the accuracy of the
source versus the possible harm inaccurately reported
information may cause the consumer." Id. Whatever
considerations exist, it is for "the trier of fact [to] weigh
the[se] factors in deciding whether [the defendant] violated
the provisions of section 1681i." Id.

In this case, the district court initially denied TUC's
motion for summary judgment and relied on Henson in
doing so, stating:

The scope of the agency's duty to reinvestigate depends
upon (1) the cost of verifying the accuracy of the source
versus the potential harm to the consumer; and (2) the
extent of the information the credit reporting agency
possesses. . . . Once the credit reporting agency
receives . . . notice [from the consumer that the credit
report is inaccurate] it may be required to conduct a
more thorough investigation, one that requires it to
make inquiries beyond the original source of the
information. . . .

10
 . . . [T]he decisive inquiry is whether Trans Union
could have determined that the accounts were opened
fraudulently if it had reasonably investigated the
matter.

Cushman, 920 F. Supp. at 83 (citing Henson, 29 F.3d at
286-87).

This was in accord with our holding today. However, after
the close of plaintiff 's case the court stated, without further
elaboration:

I have entertained the evidence in this case to this
point, and I tell you I am not persuaded that the
plaintiff has met [her] burden to this Court in any
claim that is before it at this juncture.

Based on that, I'm going to grant a 50(a) motion in
favor of the defendant.

App. at 256-57. As far as we can tell, the evidence before
the court on defendant's summary judgment motion was
not materially different from the evidence produced at trial.
Most importantly, there was evidence produced at trial
concerning the inaccuracy of the information, Cushman's
notification to TUC of the inaccuracy and the underlying
fraud, the nature of TUC's reinvestigation and the costs
incurred by it in performing that reinvestigation, and the
damages suffered by Cushman.

A reasonable jury weighing this evidence in light of the
factors identified in Henson and endorsed by us today
could have rendered a verdict for Cushman. The jury could
have concluded that after TUC was alerted to the
accusation that the accounts were obtained fraudulently,
and then confronted with the credit grantors' reiteration of
the inaccurate information, TUC should have known that
the credit grantors were "unreliable" to the extent that they
had not been informed of the fraud. See Henson, 29 F.3d at
286; see also Pinner, 805 F.2d at 1262 (where consumer
informed consumer reporting agency of his personal
dispute with manager of credit grantor, it was unreasonable
under § 1681i(a) for consumer reporting agency to rely
solely on manager for information); cf. Bryant v. TRW, Inc.,
689 F.2d 72, 79 (6th Cir. 1982) (similar efforts insufficient

11
under § 1681e(b)). Similarly, the jury could have concluded
that seventy-five cents per investigation was too little to
spend when weighed against Cushman's damages. See
Henson, 29 F.3d at 287. It was for "the trier of fact [to]
weigh the[se] factors." Id. (emphasis added). The district
court arrogated that role to itself, and in doing so, it erred.
Therefore, the judgment of the district court granting
judgment as a matter of law on Cushman's claim for
negligent noncompliance with § 1681i(a) will be reversed
and remanded.

3.

Cushman also claims that she is entitled to punitive
damages pursuant to 15 U.S.C. § 1681n because TUC's
alleged noncompliance with § 1681i(a) was willful. "To show
willful noncompliance with the FCRA, [Cushman] must
show that [TUC] `knowingly and intentionally committed an
act in conscious disregard for the rights of others,' but need
not show `malice or evil motive.' " Philbin, 101 F.3d at 970
(quoting Pinner, 805 F.2d at 1263). The Fifth Circuit has
held that "[o]nly defendants who have engaged in `willful
misrepresentations or concealments' have committed a
willful violation and are subject to punitive damages under
§ 1681n." Stevenson, 987 F.2d at 294 (quoting Pinner, 805
F.2d at 1263). Other courts have allowed punitive damages
in cases involving concealments or misrepresentations
without necessarily limiting the availability of punitive
damages to such cases. See, e.g., Millstone v. O'Hanlon
Reports, Inc., 528 F.2d 829, 834 (8th Cir. 1976); Collins v.
Retail Credit Co., 410 F. Supp. 924, 931-32 (E.D. Mich.
1976).

Although we decline to adopt the Fifth Circuit's holding
in Stevenson, we conclude that to justify an award of
punitive damages, a defendant's actions must be on the
same order as willful concealments or misrepresentations.
If Cushman can prove, as she argues, that TUC adopted its
reinvestigation policy either knowing that policy to be in
contravention of the rights possessed by consumers
pursuant to the FCRA or in reckless disregard of whether
the policy contravened those rights, she may be awarded
punitive damages.

12
The district court concluded that Cushman had not made
out a case even of negligent noncompliance with § 1681i(a).
It therefore did not consider whether she had shown TUC's
alleged noncompliance to be willful. Because the district
court is more intimately familiar with the record in this
matter, it is better situated than we to determine whether
Cushman has produced sufficient evidence for a reasonable
jury to find willfulness on the part of TUC pursuant to the
standards we have set forth above. Therefore we will
remand to the district court for such a determination.

B.

Cushman also claims that TUC has violated the VFCRA.
Vermont Statutes Annotated Title 9, § 2480d is similar to
15 U.S.C. § 1681i, providing, in pertinent part:

(a) If the completeness or accuracy of any item of
information contained in the consumer's file is
disputed by the consumer and the consumer notifies
the credit reporting agency directly of such dispute, the
agency shall reinvestigate free of charge and record the
current status of the disputed information on or before
30 business days after the date the agency receives
notice from the consumer.

....

(e) If, after a reinvestigation under subsection (a) of
this section of any information disputed by the
consumer, the information is found to be inaccurate or
cannot be verified, the credit reporting agency shall
promptly delete such information from the consumer's
file. . . .

(f) If any information is deleted after a reinvestigation
under subsection (a) of this section, the information
may not be reinserted in the consumer's file after
deletion unless the person who furnishes the
information reinvestigates and states in writing or by
electronic record to the agency that the information is
complete and accurate. . . . Upon such reinvestigation
and statement by the furnisher, the credit reporting
agency shall promptly notify the consumer of any
reinsertion.

13
(g) A credit reporting agency shall provide written
notice of the results of any reinvestigation under this
subsection [which] shall include:

....

(5) a description of the procedure used to determine
the accuracy and completeness of the information,
including the name, business address, and, if
available, the telephone number of any person
contacted in connection with such information . . . .

1.

As a threshold matter, we must determine whether
Cushman's relation to the state of Vermont is sufficient to
bestow on her the protections of the VFCRA. Vermont
Statutes Annotated Title 9, section 2480a(1) defines
"consumer" as "a natural person residing in this state."
Thus, we must determine, pursuant to Vermont law,
whether Cushman "resid[ed]" in that state for purposes of
the statute. We have stated that "the term `resident' has no
precise meaning. Rather, its definition varies with each
statutory usage." Government of Virgin Islands ex rel. Bodin
v. Brathwaite, 459 F.2d 543, 544 (3d Cir. 1972) (citations
omitted); see also Willenbrock v. Rogers, 255 F.2d 236, 237
(3d Cir. 1958); United States v. Stabler, 169 F.2d 995, 998
(3d Cir. 1948). Unfortunately, the word "residing" is not
defined in the VFCRA and we have uncovered no cases
addressing what constitutes residency for purposes of the
VFCRA.

It is perhaps telling that the Vermont legislature left the
word "residing" undefined in the VFCRA. It could have
rendered a technical definition of residency for these
purposes as it has for state income tax purposes. See VT.
STAT. ANN. tit. 32, § 5811(11)(A). Alternatively, it could have
issued guidelines for the use of a state agency or the courts
to establish their own definition of residency for these
purposes, as it has for purposes of determining who is
entitled to lowered tuition rates at state-supported
institutions of higher learning. See VT. STAT. ANN. tit.16,
§§ 2282, 2282a.

14
Because it did neither of these things, we conclude that
the Vermont legislature intended "residing" in VT. STAT. ANN.
tit. 9, § 2480a(1) to have its common legal meaning. In
ordinary legal parlance, residency merely means "living in a
particular locality" but not necessarily with the intent to
make that locality "a fixed and permanent home." BLACK'S
LAW DICTIONARY 1308-09 (6th ed. 1990); see also Wolinsky v.
Bradford Nat'l Bank, 34 B.R. 702, 704 (D. Vt. 1983)
(pursuant to Vermont law, " `[d]omicile' . . . means living in
a locality with the intent to make it a fixed and permanent
home, while `residence' simply requires bodily presence as
an inhabitant in a given place") (citation omitted); Piche v.
Department of Taxes, 565 A.2d 1283, 1285 (Vt. 1989)
(residence is something less than domicile); Walker v.
Walker, 200 A.2d 267, 269 (Vt. 1964) (same). But cf.
Bonneau v. Russell, 85 A.2d 569, 570 (Vt. 1952) (equating
residency and domicile for purposes of VT. STAT. ANN. tit. 47,
§ 2713).3 On the other hand, residency implies something
more than "merely transitory in nature," such as the
happenstance of passing through a state on one's way to
some other destination. BLACK'S LAW DICTIONARY at 1309
(defining "resident"); see also Guessefeldt v. McGrath, 342
U.S. 308, 312, 72 S.Ct. 338, 341 (1951) (residence, for
purposes of Trading with the Enemy Act of 1917, 50 U.S.C.
App. § 2(a) (1990), "implies something more than mere
physical presence and something less than domicile").

Brathwaite is instructive in this regard. In that case, we
were charged with the task of interpreting the word
"resident" in V.I. CODE ANN . tit. 16, § 291(a) (1995), in order
to determine whether the petitioner could bring a paternity
proceeding under that section. As in this case, we had little
guidance in that endeavor. We noted that "residence may
be taken to indicate merely one's momentary factual place
of abode." Brathwaite, 459 F.2d at 544. We held that
physical presence in a locality "coupled with [an] intent to
remain there for a measurable period of time," satisfied the
statute's requirement of residency. Id. at 544-45. We
_________________________________________________________________

3. Bonneau v. Russell, 85 A.2d 569, 570 (Vt. 1952), has been criticized
for "fail[ing] to recognize the distinction in Vermont law between
residence and domicile." Wolinsky v. Bradford Nat'l Bank, 34 B.R. 702,
704 n.1 (D. Vt. 1983).

15
further concluded that the four-month period during which
the petitioner had continuously lived in the Virgin Islands
prior to the conclusion of the trial in that case sufficed to
confer resident status upon her. See id. at 545. Thus, to be
a resident of a locale, one need intend to live there not
permanently nor indefinitely, but only "for a measurable
period of time." Id. Moreover, presence for a period as short
as four months will suffice. See also Stabler, 169 F.2d at
998 (defendant's "presence in New Jersey over a period of
weeks . . . was sufficient to give him a residence in New
Jersey" for purposes of 8 U.S.C. § 738(b) (repealed 1952),
relating to revocation of naturalization).

The record reflects that during the period that TUC
allegedly failed to fulfill its obligations pursuant to the
VFCRA (roughly from the autumn of 1994 through the
spring of 1995), Cushman was in her senior year at the
University of Vermont in Burlington. See App. at 147-56. It
appears that she had been living in Vermont at least since
the summer of 1993, except for "a brief few days at the end
of the summer." Id. at 148. Moreover, she still lived in
Vermont at the time of trial, in the spring of 1996. See id.
at 147. The jury could reasonably infer from the evidence
that, at the time of TUC's alleged violation of the VFCRA, (1)
Cushman had already lived in Vermont for over a year, and
(2) she intended to remain in Vermont at least until she
graduated from the University and perhaps indefinitely.
Thus, there was sufficient evidence from which a
reasonable jury could conclude that Cushman was
"residing" in Vermont during the relevant time period,
pursuant to the ordinary legal meaning of that term. A jury
could therefore conclude that Cushman may invoke the
protections of the VFCRA.4
_________________________________________________________________

4. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174 (1985),
and International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154
(1945), cited by TUC, are inapposite. The question raised is whether
Cushman may invoke the protections of a Vermont statute, regardless of
where the action is brought. This issue is entirely separate and distinct
from the question whether a state or federal court located in Vermont
would be able, consistent with due process principles, to assert personal
jurisdiction over TUC.

16
2.

Cushman claims that TUC violated VT. S TAT. ANN. tit. 9,
§ 2480d(f), by not "promptly notify[ing]" her of the
reinsertion of the Citibank entry. A TUC employee testified
that it did notify her through her attorneys, see App. at
223-24, and Cushman has pointed to no contrary evidence
in the record. Cushman claims that this notification
occurred only during discovery in this litigation and
therefore was not sufficiently "prompt[ ]" to satisfy
§ 2480d(f). The record does not indicate when the
notification was made to Cushman's attorneys. Accordingly,
we cannot conclude as a matter of law that TUC fulfilled its
obligations pursuant to that section. The district court's
grant of judgment as a matter of law on this claim will be
reversed and remanded for a jury determination of whether
the notification was sufficiently prompt pursuant to
§ 2480d(f).

3.

Cushman also claims that TUC violated VT. STAT. ANN. tit.
9, § 2480d(g)(5), by not providing her with a description of
its reinvestigation procedures. There is evidence that TUC
did fail in this regard. See App. at 224-26. Therefore
Cushman's claim pursuant to that section of the VFCRA
must stand, as must her claims under those portions of the
VFCRA that merely duplicate the FCRA.5
_________________________________________________________________

5. TUC contends that the VFCRA claim should be dismissed on the
additional ground that Cushman proved no damages stemming from the
alleged violation of that statute. TUC points to a "concession" by
Cushman's counsel in the district court that Cushman has not "pointed
to any damage evidence specifically [with regard] to" the Vermont
statute. App. at 260. As we read this, however, it appears that counsel
merely stated that any damages caused by the alleged violations of the
VFCRA were identical to those caused by the alleged violations of the
FCRA. Thus, TUC's contention that Cushman conceded away any claim
that she was damaged by a violation of the VFCRA is meritless.

17
C.

1.

The district court dismissed Cushman's defamation claim
on the ground that she had not produced any evidence of
malice and because the FCRA preempts state law
defamation claims except where the plaintiff proves "malice
or willful intent to injure" her. 15 U.S.C. § 1681h(e); see
Bloom v. I.C. Sys., Inc., 972 F.2d 1067, 1069 (9th Cir.
1992); Thornton v. Equifax, Inc., 619 F.2d 700, 703 (8th Cir.
1980). The parties have assumed that a showing of "malice
or willful intent to injure" pursuant to § 1681h(e) is
identical to proof of willfulness under § 1681n. This is
contrary to the holding of the United States Court of
Appeals for the Eighth Circuit in Thornton, 619 F.2d at 706,
that § 1681h(e) establishes a "higher requirement of proof."
However, because neither the parties nor the district court
addressed this issue, we will assume without deciding that
the requirements for the two showings are identical. We
have explained above that we will remand to the district
court for a determination of whether Cushman has
produced evidence sufficient to justify a finding of
willfulness on the part of TUC pursuant to § 1681n. See
Part II.A.3 supra. We must likewise remand for a
determination of whether Cushman has produced evidence
of "malice or willful intent to injure" sufficient to avoid
preemption of her defamation claim pursuant to § 1681h(e).

2.

The district court granted TUC judgment as a matter of
law on Cushman's defamation claim on the alternative
ground that she had not produced any evidence of
publication. In order to prove defamation pursuant to
Pennsylvania law,6 Cushman must prove, inter alia,
publication of the defamatory matter by TUC. See 42 PA.
_________________________________________________________________

6. Neither party has argued that the defamation claim is governed by the
laws of Vermont or any other jurisdiction. In the absence of such a
contention, we apply the laws of the forum state. See Publicker Indus.,
Inc. v. Roman Ceramics Corp., 652 F.2d 340, 343 n.6 (3d Cir. 1981).

18
CONS. STAT. ANN. § 8343(a)(2) (1982); U.S. Healthcare, Inc. v.
Blue Cross of Greater Philadelphia, 898 F.2d 914, 923 (3d
Cir. 1990); Ertel v. Patriot-News Co., 674 A.2d 1038, 1043
(Pa.), cert. denied, ___ U.S. #6D6D 6D#, 117 S.Ct. 512 (1996).
Publication consists of the communication of the
information to at least one person other than the person
defamed. See Flaxman v. Burnett, 574 A.2d 1061, 1066 (Pa.
Super. 1990).

A TUC employee testified that the allegedly defamatory
information was published to Chase and Citibank. See App.
at 222, 338-39. Moreover, Cushman testified that an
unidentified bill collector initially informed her of the
allegedly defamatory information, from which a jury could
infer that the information had been published to him as
well. See id. at 149. A reasonable jury could conclude that
Cushman has satisfied the publication element of her
defamation cause of action.7 Thus, this was not a proper
basis upon which to grant TUC judgment as a matter of law
on the defamation claim.

III.

The judgment of the district court will be reversed and
remanded for further proceedings consistent with this
opinion.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

_________________________________________________________________

7. We express no opinion as to whether Cushman has set forth evidence
sufficient to prove the other elements of her defamation claim.

19