Jerry L. Crabill v. Trans Union, L.L.C.

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2078
Jerry L. Crabill,
Plaintiff-Appellant,
v.
Trans Union, L.L.C.,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 99-1024--Michael M. Mihm, Judge.
Submitted November 20, 2000--Decided July 30, 2001
Before Posner, Easterbrook, and Williams,
Circuit Judges.
Posner, Circuit Judge. The Fair Credit
Reporting Act, 15 U.S.C. sec.sec. 1681-
1681t, creates a federal remedy against a
credit reporting agency that fails to
follow "reasonable procedures to assure
maximum possible accuracy" of the
information contained in a consumer’s
credit report. sec.sec. 1681e(b), 1681o,
1681n; Henson v. CSC Credit Services, 29
F.3d 280 (7th Cir. 1994). The plaintiff,
Jerry Crabill, appeals from the grant of
summary judgment to the defendant, credit
agency Trans Union.
Jerry Crabill has a brother whose first
name is John, and the similarity in names
(including first initials) and the fact
that their social security numbers differ
by a single digit (Jerry’s ends in 9,
John’s in 8) resulted on several
occasions in Trans Union’s furnishing a
credit report on John when it had been
requested for information on Jerry’s
creditworthiness, in addition to
furnishing the requested report on Jerry.
Denied credit several times, Jerry
complained to Trans Union, which began
adding at the end of its credit reports
on Jerry the notation (in capital
letters): "do not confuse with brother
John D. Crabill."
Only one creditor who denied credit to

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Jerry received a report that mistakenly
attributed information about John to
Jerry. And he received it not from Trans
Union but from a seller of credit reports
who, having received separate reports on
Jerry and John from Trans Union,
mistakenly merged the information in the
two reports into a report that it sent
the creditor, who on the basis of the
inaccurate report decided not to extend
credit to Jerry. The inaccuracy cannot be
attributed to Trans Union. Other
creditors of Jerry, however, who
requested a report on him also received
from Trans Union John’s report
unsolicited, albeit with the notation
quoted above. The reason is that Trans
Union’s computer treated requests for a
credit report on Jerry as requests for a
credit report on John as well. If any of
these creditors missed the notation and
erroneously supposed that both reports
pertained to Jerry, the mistake was the
creditor’s. It is true that if Trans
Union had programmed its computer
differently, and as a result had not sent
the creditors John’s report along with
Jerry’s when only Jerry’s had been
requested, they could not have been
confused by receiving both reports. But
Trans Union defends its program, pointing
out that two files with similar though
not identical identifying data may
actually be referring to the same person,
the differences in data being the result
of errors in data collection or
compilation, and so it was useful for
creditors to have both Crabills’ files
and make their own judgment of whether
they were different persons. We think
this is right, and that the statutory
duty to maintain reasonable procedures to
avoid inaccuracy does not require a
credit agency to disregard the
possibility that similar files refer to
the same person.
Neither report contained any inaccurate
information, or information that though
literally correct was misleading, as in
Sepulvado v. CSC Credit Services, Inc.,
158 F.3d 890, 895-96 (5th Cir. 1998), or
Koropoulos v. Credit Bureau, Inc., 734
F.2d 37, 39-42 (D.C. Cir. 1984). (We have
left open the question whether the
statutory term "inaccurate" reaches the
second type of case. Henson v. CSC Credit
Services, supra, 29 F.3d at 285 n. 4.)
The ensemble was potentially misleading,
however, and may have triggered the

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statutory duty to reconsider an
individual’s credit report if alerted to
a potential error. Although Trans Union
was entitled to program its computer to
select any file whose identifiers closely
matched those contained in the creditor’s
request for information, once it learned
from Jerry that the two files indeed
referred to different people the
statutory duty just mentioned clicked in,
cf. id. at 286-87; see also Cushman v.
Trans Union Corp., 115 F.3d 220, 224-25
(3d Cir. 1997), and at that point the
continued sending of both files to
creditors might be viewed as a failure to
maintain reasonable procedures for
assuring accuracy. The determination of
the "reasonableness" of the defendant’s
procedures, like other questions
concerning the application of a legal
standard to given facts (notably
negligence, a failure to exercise reason
able care), is treated as a factual
question even when the underlying facts
are undisputed. It therefore cannot be
resolved on summary judgment unless the
reasonableness or unreasonableness of the
procedures is beyond question, which it
is not in this case.
Jerry has failed, however, to present
evidence that any of the creditors who
denied him credit after receiving a
report on him and his brother from Trans
Union did so because of the report on
John. Without a causal relation between
the violation of the statute and the loss
of credit, or some other harm, a
plaintiff cannot obtain an award of
"actual damages," Philbin v. Trans Union
Corp., 101 F.3d 957, 963 (3d Cir. 1996);
Casella v. Equifax Credit Information
Service, 56 F.3d 469, 473 (2d Cir. 1995);
Cahlin v. General Motors Acceptance
Corp., 936 F.2d 1151, 1160-61 (11th Cir.
1991), which is one of the remedies under
the Fair Credit Reporting Act. It does
not follow that Jerry cannot obtain any
other remedy, such as an injunction.
Guimond v. Trans Union Credit Information
Co., 45 F.3d 1329, 1333-34 (9th Cir.
1995), noting that the statute does not
contain an explicit requirement of
establishing injury, suggests that among
the other remedies might be attorneys’
fees. Jerry is seeking costs and
attorneys’ fees as well as damages both
punitive and compensatory, all of these
being statutorily authorized remedies. 15
U.S.C. sec.sec. 1681o, 1681n. He has no

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compensatory damages, cannot possibly
obtain punitive damages, and is not seek
ing injunctive relief, but Guimond is
authority that he may be entitled to
costs and fees anyway.
Cahlin v. General Motors Acceptance
Corp., supra, 936 F.2d at 1160-61,
however, upheld the grant of
summaryjudgment to the defendant for want
of a causal connection between the
statutory violation and the plaintiff’s
injury, though so far as appears the
plaintiff was seeking only damages. And
Hyde v. Hibernia National Bank, 861 F.2d
446, 448-49 (5th Cir. 1988), states that
the plaintiff must show injury to obtain
a remedy under the Act, though the issue
was merely whether the plaintiff could
wait to sue until he was injured (the
court said he could). These are the only
cases under the Fair Credit Reporting Act
that address the issue, but cases
interpreting the very similar Truth in
Lending and Fair Debt Collection
Practices Acts, see 15 U.S.C. sec.sec.
1640(a), 1692k(a) (one court has pointed
out that the provisions of the three
statutes relating to the recovery of
attorneys’ fees are "virtually
identical," Jesus v. Banco Popular de
Puerto Rico, 918 F.2d 232, 233 (1st Cir.
1989)), hold that proof of liability
without more entitles the plaintiff to an
award of costs and attorneys’ fees, in
the absence of bad conduct by the
plaintiff or other unusual circumstances.
Purtle v. Eldridge Auto Sales, Inc., 91
F.3d 797, 802 (6th Cir. 1996); Graziano
v. Harrison, 950 F.2d 107, 113-14 (3d
Cir. 1991); Pipiles v. Credit Bureau of
Lockport, Inc., 886 F.2d 22, 28 (2d Cir.
1989); Emanuel v. American Credit
Exchange, 870 F.2d 805, 809 (2d Cir.
1989). We have repeated this several
times with reference to the Fair Debt
Collection Practices Act, Zagorski v.
Midwest Billing Services, Inc., 128 F.3d
1164, 1166 and n. 3 (7th Cir. 1997) (per
curiam); Mace v. Van Ru Credit Corp., 109
F.3d 338, 345 nn. 3-4 (7th Cir. 1997);
Tolentino v. Friedman, 46 F.3d 645, 651-
53 (7th Cir. 1995), and although Johnson
v. Eaton, 80 F.3d 148 (5th Cir. 1996),
reached the opposite result under the
Fair Debt Collection Practices Act, we
declined in Mace v. Van Ru Credit Corp.,
supra, 109 F.3d at 345 n. 4, to follow
Johnson.

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These cases (all but Johnson of course)
say that a "successful" action within the
meaning of these statutes is merely one
that establishes liability. That the
plaintiff has no or merely nominal
damages is irrelevant. E.g., Mace v. Van
Ru Credit Corp., supra, 109 F.3d at 345
n. 3; Zagorski v. Midwest Billing
Services, Inc., supra, 128 F.3d at 1166;
Purtle v. Eldridge Auto Sales, Inc.,
supra, 91 F.3d at 802. This is
unconventional. But nowhere is it graven
in stone that attorneys’ fees shall be
awarded only to plaintiffs who prove they
were injured by the defendant’s conduct
or can otherwise plausibly claim damages
or seek injunctive relief.
What is true is that if no injury is
alleged (or, if the allegation is
contested, proved, Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992)), and
as a result there is no case or
controversy between the parties within
the meaning of Article III of the
Constitution, the plaintiff cannot base
standing on a claim for attorneys’ fees.
Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 107-08 (1998);
Lewis v. Continental Bank, 494 U.S. 472,
480 (1990); Diamond v. Charles, 476 U.S.
54, 70-71 (1986); Rhodes v. Stewart, 488
U.S. 1 (1988) (per curiam); Sanfield,
Inc. v. Finlay Fine Jewelry Corp., No.
99-4234, 2001 WL 767150, at *3-*4 (7th
Cir. July 10, 2001). Otherwise the
limitation of federal jurisdiction to
cases and controversies would be empty.
But we cannot stop here, despite
Crabill’s failure to prove injury to him
self. Many statutes, notably consumer-
protection statutes, authorize the award
of damages (called "statutory damages")
for violations that cause so little
measurable injury that the cost of
proving up damages would exceed the
damages themselves, making the right to
sue nugatory. It is the same theory that
underlies the class action, the core
function of which is to enable the
litigation of claims too small to warrant
the costs of prosecuting a separate suit
for each claim. The award of statutory
damages could also be thought a form of
bounty system, and Congress is permitted
to create legally enforceable bounty
systems for assistance in enforcing
federal laws, provided the bounty is a
reward for redressing an injury of some
sort (though not necessarily an injury to

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the bounty hunter); otherwise, as the
Court explained in Vermont Agency of
Natural Resources v. United States ex
rel. Stevens, 529 U.S. 765, 771-74
(2000), there would be the bootstrapping
problem of the Steel Co. case.
Might the consumer-protection cases that
we have cited be interpreted to hold that
Congress created a bounty system in the
Truth in Lending and Fair Debt Collection
Practices Acts and, following Guimond,
the Fair Credit Reporting Act, a sister
of the FDCPA and cousin of the TILA, as
well? On this view, the attorneys’ fees
are the bounty (or part of the bounty--a
qualification that will become clear in
the next sentence), their award to the
plaintiff who proves a violation being
intended to deter future violations and
by deterring them to avert injury, just
as in an explicit bounty system. This is
actually a more persuasive interpretation
of the FCRA than of the other two
statutes because they authorize statutory
damages, see 15 U.S.C. sec. 1640(a)
(2)(A) (TILA), sec. 1692k(a)(2)(A)
(FDCPA), and the FCRA does not; its only
"bounty" is costs and attorneys’ fees.
The attorney for the plaintiff is made a
private attorney general, compensated for
bringing suits that while they may not
yield a tangible recovery for the client
operate to deter violations by imposing a
cost on the defendant even if his
misconduct imposed no cost on the
plaintiff. A number of the cases describe
all three statutes in just this way. See
Tolentino v. Friedman, supra, 46 F.3d at
651-52 (FDCPA); Begala v. PNC Bank, 163
F.3d 948, 950 (6th Cir. 1998) (TILA);
Jesus v. Banco Popular de Puerto Rico,
supra, 918 F.2d at 234 (TILA); Rodash v.
AIB Mortgage Co., 16 F.3d 1142, 1144
(11th Cir. 1994) (TILA); Bryant v. TRW,
Inc., 689 F.2d 72, 79 (6th Cir. 1982)
(FCRA).
There are several problems with this
approach, however. One is that attorneys’
fees are not really a bounty. They are
intended not to reward the plaintiff who
brings a successful suit but merely to
defray the expense of doing so.
Attorneys’ fees are--attorneys’ fees, and
we know from Steel Co. that the prospect
of an award of attorneys’ fees does not
create a justiciable controversy if
nothing else is at stake in the
litigation. In addition, the Supreme

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Court appears to have limited the right
to create a bounty system enforceable in
federal courts to the situation in which
the bounty deters the defendant from
inflicting a future injury on the
particular plaintiff bringing the suit,
Friends of the Earth, Inc. v. Laidlaw
Environmental Services (TOC), Inc., 528
U.S. 167, 185-86 (2000), unless the
plaintiff can be viewed as a kind of
assignee of the prospective victims, as
suggested in Vermont Agency of Natural
Resources v. United States ex rel.
Stevens, supra. Neither template fits
this case or the other consumer-
protection cases in which attorneys’ fees
are sought despite the absence of past or
prospective harm to the plaintiff.
Most important, the pertinent judicial
landscape has changed with the Supreme
Court’s decision this past term in
Buckhannon Board & Care Home, Inc. v.
West Virginia Dept. of Health & Human
Resources, 121 S. Ct. 1835 (2001).
Rejecting the "catalyst" theory under
which successful plaintiffs receive
attorneys’ fees for causing defendants to
change their behavior even if no judgment
was entered, the Court held that
attorneys’ fees may be awarded only if
the plaintiff was "awarded some relief by
the court." Id. at 1839. "[A] litigant
who left the court emptyhanded" gets no
fees. Id. at 1844 (concurring opinion).
See also Farrar v. Hobby, 506 U.S. 103,
111 (1992); Hewitt v. Helms, 482 U.S.
755, 760 (1987). That is Jerry Crabill’s
situation. It is true that Buckhannon did
not involve a consumer-protection
statute, but rather the civil rights
attorneys’ fee statute, 42 U.S.C. sec.
1988. But the Court emphasized the
similarity of most federal fee-shifting
statutes and even equated "prevailing"
with "successful" party, 121 S. Ct. at
1839 and nn. 4-5, the former being the
term in the civil rights attorneys’ fee
statute and the latter the term in the
Fair Credit Reporting Act. One of the
consumer-protection cases that we cited
earlier says that "the goal of the fee
provision here [i.e., in the Truth in
Lending Act] mirrors that of section
1988," Jesus v. Banco Popular de Puerto
Rico, supra, 918 F.2d at 234, and the
other that "the policies informing . . .
[section 1988] apply with equal force to
the FCRA," Bryant v. TRW, Inc., supra,
689 F.2d at 80--our statute. We cannot

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find anything in the text, structure, or
legislative history of the Act to suggest
that its attorneys’ fee provision has a
different meaning from the provision at
issue in Buckhannon. Compare Fogerty v.
Fantasy, Inc., 510 U.S. 517, 523-25
(1994). Of course, this is not a catalyst
case, like Buckhannon. The significance
of the Buckhannon decision for our case
lies rather in its insistence that a
plaintiff must obtain formal judicial
relief, and not merely "success," in
order to be deemed a prevailing or
successful party under any attorneys’ fee
provision comparable to the civil rights
attorneys’ fee statute. Buckhannon read
with Bryant thus makes clear that Crabill
is entitled to no relief at all, not even
attorneys’ fees. The implications for
other consumer-protection statutes remain
for consideration in future cases.
Affirmed.

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