Volume 5 Pages 719 - 927 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE JACQUELINE SCOTT CORLEY, MAGISTRATE JUDGE SERGIO L. RAMIREZ, on behalf of himself and all others similarly situated, ) ) ) ) Plaintiff, ) ) VS. ) ) TRANSUNION, LLC, ) ) Defendant. ) ___________________________________) NO. C 12-0632 JSC San Francisco, California Monday, June 19, 2017 TRANSCRIPT OF TRIAL PROCEEDINGS APPEARANCES: For Plaintiff: BY: BY: ANDERSON, OGILVIE & BREWER LLP 1736 Stockton Street, Ground Floor San Francisco, California 94133 CAROL M. BREWER, ESQ. FRANCIS & MAILMAN PC Land Title Building - 19th Floor 100 South Broad Street Philadelphia, Pennsylvania 19110 JOHN SOUMILAS, ESQ. JAMES A. FRANCIS, ESQ. (Appearances continued, next page) Reported By: Debra L. Pas, CSR 11916, 11916, CRR, RMR, RPR Official Reporter - US District Court Computerized Transcription By Eclipse APPEARANCES CONTINUED: For Defendant: BY: STROOCK & STROOCK & LAVAN LLP 2029 Century Park East Los Angeles, California 90067-3086 STEPHEN J. NEWMAN, ESQ. JASON S. YOO, ESQ. CHRISTINE E. ELLICE, ESQ. ERICK K. KUYLMAN, ESQ. - - - 721 PROCEEDINGS 1 2 P R O C E E D I N G S JUNE 19, 2017 8:07 A.M. 3 ---000--- 4 (Proceedings held in open court, outside 5 the presence and hearing of the jury.) 6 THE COURT: All right. Good morning. Before we turn 7 to jury instructions, is there anything else we need to 8 discuss? 9 MR. SOUMILAS: Good morning, your Honor. We have just 10 a couple of very brief household, kind of housekeeping items, 11 maybe you'd call them that. 12 One is that there is, I believe, four TransUnion witnesses 13 here today and we'd like each to be sequestered in the hallway 14 until they testify and then they come in. 15 MR. NEWMAN: 16 THE COURT: 17 MR. SOUMILAS: Is that all right? Agreed, your Honor. Okay. Second issue is that one of the 18 witnesses is Francine Cronshaw, who is an expert, and we want 19 to make sure that she abides by the same order that the Court 20 applied to all other experts about the reasonableness of 21 TransUnion's procedures. 22 Now, she's a Spanish language expert, but I think she 23 might be willing to go there and say that TransUnion's 24 procedures are reasonable -- 25 THE COURT: You had the report. She must not have 722 PROCEEDINGS 1 done that in her report. 2 MR. SOUMILAS: 3 THE COURT: 4 MR. SOUMILAS: 5 6 7 Well, you did not move. We did not move in limine on her because we only had five motions. MR. NEWMAN: We understand, your Honor, and we've instructed our witnesses to comply with your Honor's orders. 8 THE COURT: 9 MR. SOUMILAS: 10 She did. Okay. Thank you. The third issue is another witness, Ms. Prindes, is 11 someone we had in our case-in-chief and we accommodated her 12 because of child care issues, you'll recall, your Honor. 13 want to have the same scope in examining her as they did in our 14 case-in-chief with some of our witnesses. 15 16 MR. NEWMAN: Your Honor, we're not calling Ms. Prindes. 17 THE COURT: 18 MR. SOUMILAS: 19 20 21 So we Okay. That clarifies that. We have a question from the very end of Friday. I believe Mr. Newman tried to offer into evidence the expert report -THE COURT: Yeah, I misspoke. I said overruled. 22 I meant was I was overruling his attempt to offer it into 23 evidence. It was sustained. 24 MR. SOUMILAS: 25 THE COURT: What It's not in evidence. Thank you. I don't blame him for trying, but it's not 723 PROCEEDINGS 1 in evidence. 2 MR. SOUMILAS: 3 MR. NEWMAN: 4 MR. SOUMILAS: I don't blame him for trying either. That's what I'm here for, your Honor. We have -- we exchanged some slides, 5 your Honor, for possible closing argument, and we have an 6 objection to two of theirs. 7 We want to take that up. 8 THE COURT: 9 MR. NEWMAN: 10 THE COURT: 11 MR. NEWMAN: 12 They have no objections to ours. Well -I think they are quick, your Honor. Okay. Let's do it. Sure. If I can hand up a printout. (Whereupon document was tendered to the Court.) 13 MR. NEWMAN: The first slide is actually going to be 14 two images. 15 Twin Towers, and the second image is of the New York City 16 skyline without the Twin Towers, but with the Freedom Tower. 17 The purpose is to show the passage of time. 18 19 20 One image is of the New York City skyline with the THE COURT: No, no, no, no. We're not going to 9/11. No. MR. NEWMAN: Okay. Then the second objection is to 21 slide 3, which is a normal poster we have all seen a million 22 times that various government agencies publish that say, If you 23 see something, say something. 24 THE COURT: 25 No. That's not what this is about. don't think the evidence supports that. I 724 PROCEEDINGS 1 MR. NEWMAN: 2 THE COURT: 3 MR. NEWMAN: 4 MR. SOUMILAS: So we will not display those slides. Okay. Thank you, your Honor. And the final thing, other than jury 5 instructions, is we submitted a request for judicial notice 6 last night that we would like to use for a second phase of 7 closing, should we get there, concerning punitive damages which 8 we think is on all fours on punitive damages. 9 THE COURT: I did -- I did read through that. 10 Let's do the jury instructions first. 11 order, because that's something we can do last. 12 Okay. So let's do then jury instructions. 13 respect to -- so I fess up. 14 night waiting for your submissions. 15 16 Let's take it in I did not stay up until 11:00 last That's okay, your Honor. MR. NEWMAN: And with I didn't expect you to. 17 THE COURT: So I have briefly read through some of 18 them. 19 yours add in or if you have a change to one of mine. Let's go through mine, and then you can tell me where 20 MR. NEWMAN: 21 THE COURT: Yes, your Honor. So let's start with seven, which is 22 stipulations of fact. 23 agreed to certain facts which have been read to you. 24 therefore, treat these facts as having been proved. 25 Should I just say here: I don't believe there is -- Parties have You must, 725 PROCEEDINGS 1 MR. NEWMAN: 2 MR. SOUMILAS: 3 THE COURT: 4 5 Okay. Yes. That's correct? class action. And the plaintiff had submitted -- MR. SOUMILAS: 7 THE COURT: 9 Okay. So I think the first one is maybe 11, this is a 6 8 Yes. Is it 12, your Honor? Or, 12, yeah. Sorry, 12. Had submitted an instruction. MR. SOUMILAS: And, your Honor, may I just focus for a 10 moment first on the part of 12 that the Court has already 11 provided to the parties. 12 THE COURT: 13 MR. SOUMILAS: Yes. I don't know if it's a typographical 14 error or what, but I think we all agree that the class in this 15 case is 8,185 people, not 84. 16 THE COURT: 17 MR. SOUMILAS: So I'd like that correction. All right. And then we submitted a supplemental, 18 your Honor, which we call 12a because we think that it's very 19 important to instruct this jury that they cannot treat some 20 members of the class differently for purposes of their verdict. 21 That is a Rule 23 issue. 22 certification motion, the decertification motion. 23 24 25 We've briefed on it at the The Court repeatedly denied TransUnion's attempts -THE COURT: Yeah, I understand that. So one question I had raised at the beginning of the trial was whether -- and I 726 PROCEEDINGS 1 didn't get any revisions to the verdict form. 2 TransUnion, the way the verdict form reads now, there will be a 3 number that will apply to each class member. 4 MR. NEWMAN: 5 THE COURT: So I assume Correct. So I think it's probably appropriate to 6 instruct them that it would be the same for each class member. 7 However, the second sentence you have I don't think is 8 appropriate because, in fact, the number that the jury decides 9 to impose may, in fact, reflect that there are different 10 experiences. 11 actually had some real actual harm, or anyone, for example, who 12 had to call TransUnion and change it, but maybe someone who 13 didn't is different. There are some like Mr. Ramirez, who I think 14 In other words, in determining the amount of the statutory 15 damages, I think it would be error for me to instruct them they 16 couldn't consider that. 17 verdict must be the same for each class member. 18 MR. SOUMILAS: 19 MR. LUCKMAN: But I will instruct them that their Understood. Your Honor, the Marshal tells me I need 20 to get the Clerk to open our break-out room. 21 sit with the witnesses because the jury is going to come in. 22 apologize. 23 THE COURT: 24 MR. SOUMILAS: 25 THE COURT: I don't want to I That's okay. So, your Honor, thank you as to 12a. Okay. So where should I put that though? 727 PROCEEDINGS 1 MR. SOUMILAS: We were suggesting that you just read 2 it, put it as 12a because we thought that would make sense in 3 that sequence between 12 and 13 -- 4 5 6 THE COURT: I will find somewhere to put it. I would put within 12. Do you have any thoughts on that, Mr. Newman? 7 I agree, your Honor, that it would be MR. NEWMAN: 8 error to include that second sentence, and the first sentence 9 is basically fine. 10 11 12 13 14 15 THE COURT: We'll do it as 12a, okay. Or somewhere in there. Okay, let's see. MR. SOUMILAS: 13, nothing, correct? So 13, your Honor, is one that we've suggested, a supplemental charge. Your Honor will recall that we had filed a motion in 16 limine to exclude these contracts that have disclaimers and 17 language that essentially says, you know: 18 these obligations on you, buyers of our data. 19 We are imposing And your Honor denied that motion and allowed all this 20 testimony before the jury, and now we think it's important to 21 instruct the jury that those contracts do not change the 22 application of the Fair Credit Reporting Act. 23 straight out of the Third Circuit in Cortez, that I believe 24 this Court has also used in denying TransUnion's motion for 25 summary judgment. That's language 728 PROCEEDINGS 1 THE COURT: Okay. I will -- if they were to argue 2 that they didn't Violate the FCRA somehow because it was a 3 reseller, I think that would be an appropriate argument. 4 don't think they are going to make that argument. 5 it goes to willfulness, and I think it is relevant to 6 willfulness. 7 that, as will they. 8 9 I I think more You will make whatever argument you want as to I understand that they are going to argue it wasn't willful. We thought that these -- you know, these resellers -- 10 it was reasonable for us to rely on the resellers to comply 11 with the contract. 12 it's not, but I don't -- I don't know that I should instruct -- 13 I think the error with your instruction is that I would be, in 14 essence, instructing them to disregard the evidence which is 15 relevant to willfulness. 16 And you'll make your argument as to why MR. SOUMILAS: So, your Honor, we think that this 17 language comes directly out of Cortez on the willfulness 18 argument, which is that the contracts somehow excuse a 19 violation of the FCRA, and they don't. 20 So I think the jury could be very confused by saying you 21 have these contractual arrangements. 22 contracts are law. 23 TransUnion's duties to comply -- whether negligently or 24 willfully, to comply with the FCRA. 25 is a negligent one or a willful one makes no difference. Most people think And that they have some affect on And whether the violation The 729 PROCEEDINGS 1 issue is should this jury understand that the contracts do not 2 water down TransUnion's duty under the FCRA no matter what they 3 say. 4 THE COURT: It does not. And I won't instruct them 5 that it does. 6 right? 7 obligation is under the FCRA. 8 them at all that the contracts somehow water down their 9 argument. 10 11 So they are not going to get that instruction, They are just getting an instruction of what their But I don't think Cortez said it was error to admit the contracts -- 12 MR. SOUMILAS: 13 THE COURT: 14 MR. SOUMILAS: 15 18 19 So -- -- right? That's correct, your Honor. I could argue that point about the contracts. 16 17 And I'm not going to instruct THE COURT: All right. Okay. What is the next one that we should look at then? MR. SOUMILAS: So the next one that we propose, your 20 Honor, is a -- is to 19, which is "willfully" defined. 21 there is -- we have a supplemental charge that we think should 22 be added to the first two sentences of the existing charge, and 23 we very strongly believe that the third and last sentence of 24 the existing charge needs to be removed. 25 That's the sentence that reads that: And 730 PROCEEDINGS 1 "A consumer reporting agency does not recklessly 2 violate the Act when it acts in accord with an objectively 3 reasonable interpretation of the fact." 4 That is a pure legal defense. It relates to what the 5 statute and the law is and whether there is an objective 6 reading. 7 and TransUnion tried its motion under Safeco and lost. 8 9 Judges are safe -- are gatekeepers on that function We cannot possibly have a jury deliberate about what an objectively reasonable interpretation of the law is. This 10 Court did not permit any testimony on what the law was or how 11 to interpret it. 12 decision. 13 and confusing to the jury. 14 15 16 Cortez is not in evidence, the Third Circuit And we think that this will be so highly prejudicial So we think the third sentence should go and that the Court should elaborate on willfulness as we propose in 19a. MR. NEWMAN: Your Honor, we believe that what's been 17 proposed in 19a is an attempt to put the thumb on the scales in 18 terms of a lot of the context evidence that's presented in this 19 case and is not consistent with Safeco. 20 And, you know, you're basically telling the jury to 21 disregard the evidence that TransUnion has compliance people. 22 And you're asking the Court to disregard that, you know, the 23 law was evolving. 24 25 And, you know, again, state of mind and willfulness are appropriate facts to go to the jury, and the proposed 731 PROCEEDINGS 1 instruction is basically telling the jury not to consider that. 2 THE COURT: Well, what is the objectively reasonable 3 interpretation of the Act, or just that adding the word 4 "potential," or... 5 MR. NEWMAN: 6 proposed instruction language: 7 8 Well, what I'm focused on in their "This is true even if the consumer reporting agency's lawyers" -- 9 THE COURT: Yeah, I wouldn't -- so my instructions, I 10 do not comment on the evidence. 11 to do. 12 I think that's not appropriate Sometimes maybe the way something was argued, in order to 13 correct an argument I might have to do that, but I stay away 14 from that. 15 16 17 18 So I wouldn't do that. I'm more intrigued by plaintiff suggesting that we delete the last line of the instruction that's there. MR. NEWMAN: (As read) "So a consumer reporting agency does not recklessly 19 violate the Act when it acts in accord with an objectively 20 reasonable interpretation of the Act." 21 Well, you have had, you know, evidence in this case that 22 there was not a lot of guidance out there in the time, you 23 know, leading up to Cortez. They have talked a lot about, you 24 know, the pre-Cortez period. There is evidence that different 25 agencies had pushed in different directions as to how many hits 732 PROCEEDINGS 1 is too many hits. 2 instruction, which is absolutely consistent with the language 3 of Safeco that a company that acts in accord with an 4 objectively reasonable interpretation is not willful. 5 THE COURT: 6 of the Act? 7 Act. 8 9 And I think that that justifies the But what is the reasonable interpretation You didn't -- you didn't point to me what is the So, for example, we have the Ninth Circuit's recent decision -- 10 MR. NEWMAN: 11 THE COURT: Yes, your Honor. -- in which they actually held it was not 12 a recently interpretation of the Act. 13 came to the exact opposite conclusion. 14 here. 15 MR. NEWMAN: Well, right. They actually reversed, We don't have that There is no, like, legal 16 opinion that's been put into evidence that says, you know: 17 have asked me to examine these provisions of the Fair Credit 18 Reporting Act and the associated regulations and based on the 19 facts you have given me, I conclude that a reasonable Court 20 applying reasonable guidance... 21 We don't have that evidence. 22 last sentence is from Safeco. 23 THE COURT: You But the language here in the No, I understand that. But the question 24 is whether that language applies to the facts of this 25 particular case. 733 PROCEEDINGS 1 MR. NEWMAN: Well, I think you've heard witnesses say 2 that they think they were doing what the law required of them. 3 And you haven't seen -- 4 5 THE COURT: Actually, I haven't heard that. heard the witnesses say is, I was doing what I was told to do. 6 MR. NEWMAN: 7 THE COURT: Well, you've heard witnesses -Nobody even said they even read Cortez. 8 Nobody said they got any advice or anything. 9 haven't heard that, at least not yet. 10 11 What I All right. So I actually Well, I'm going to take this one under advisement. 12 MR. SOUMILAS: And, your Honor, from our point of view 13 we also have one final issue on the jury charge. 14 new proposed charge, but the Court's instruction 26 on punitive 15 damages, the very, very last line which says: 16 It's not a "The degree of reprehensibility of a defendant's 17 conduct and the relationship and any award of punitive 18 damages to actual harm inflicted on Mr. Ramirez and the 19 class." 20 I think using the word "actual" there really confuses the 21 difference between actual damages and statutory damages in this 22 case. 23 I think you're allowed to recover -THE COURT: All right. Let's deal with theirs related 24 to -- before we get to punitives, since we have bifurcated that 25 in any event. 734 PROCEEDINGS 1 MR. SOUMILAS: 2 THE COURT: 3 4 Yes, your Honor. All right. So TransUnion then -- which one should I look at, Mr. Newman, that maybe have not been -MR. NEWMAN: So since we just looked at 19, if your 5 Honor could look at our 19? 6 additional language which we requested. 7 MR. SOUMILAS: 8 MR. NEWMAN: 9 MR. SOUMILAS: 10 MR. NEWMAN: 11 You know, we have added some Could you help me, just where that is? Page 6 of our proposed instructions. Okay. We have added language: "A good faith attempt to obey the law is not reckless 12 conduct." 13 We have also added language: 14 "Evidence that the consumer reporting agency promptly 15 corrected an error after it was brought to its attention." 16 THE COURT: I'm not going to do that. 17 commenting on the evidence, right? 18 all their evidence and blah, blah, blah. 19 evidence. 20 going to instruct on it. 21 22 See that's Then I would have to go to You argue the The jury will decide what they believe. MR. NEWMAN: I'm not And we've also asked for the instruction: "The relevant time for determining whether TransUnion 23 willfully violated the FCRA is January 1, 2011 through 24 July 26, 2011. 25 on what was known and what was technologically feasible at You must assess TransUnion's conduct based 735 PROCEEDINGS 1 that time." 2 3 THE COURT: I don't like the second sentence. But the first sentence? 4 MR. FRANCIS: The first sentence is problematic as 5 well, your Honor, because the class definition is that time 6 period. 7 TransUnion could violate the law. 8 That doesn't mean that that's the only time that And, in fact, this is a major issue, that the fact that 9 during this period these reports were prepared and went out 10 doesn't mean that after the period these exact class members 11 didn't continue to suffer injury. 12 THE COURT: So -- I think the problem with that is it may 13 confuse the jury, that they can only consider evidence from 14 that time period; whereas, evidence from before and after, I 15 think, is relevant to that. 16 17 18 MR. NEWMAN: Well, I'm not sure evidence after is, but I understand -THE COURT: I think arguably it is also, what they did 19 or didn't do afterwards is somewhat relevant to the intent 20 before as well. 21 Anyway, as I told you guys, willfully statutory damages, 22 pretty much we just let it come in and see what the jury says. 23 All right. So I'm not going to do that. 24 MR. NEWMAN: 25 THE COURT: Okay. And then, obviously, I'm not going to give 736 PROCEEDINGS 1 your instruction on standing, but I understand your argument is 2 preserved. 3 MR. NEWMAN: Correct. We have also argued for what we 4 think are some pretty standard instructions about that the 5 verdict has to be anonymous as to each issue. 6 7 8 9 10 11 THE COURT: Circuit. They are not standard in the Ninth I'm giving the Ninth Circuit model jury instructions. MR. NEWMAN: Okay. And you have heard -- you have seen our comments on the quotient verdict instruction. I understand your Honor's ruling on that. We asked for a specific instruction about reseller duties 12 based on what your Honor said earlier about not commenting on 13 the evidence. 14 that, but we have made that argument. I think I know what your Honor's ruling is on 15 THE COURT: 16 MR. NEWMAN: 17 We have just gone through 19. 18 THE COURT: Okay. We've addressed standing and causation. I do want to add something on standing. 19 do actually think that the trial has shown even more so that 20 there is standing here and that there was concrete injury in 21 particular. 22 Mr. Ramirez testified that he actually -- when he got this 23 letter, he then changed plans to going to Mexico, which, of 24 course, makes sense. 25 Oh, gosh. And I didn't remember this being before. If you get this letter, you would be: Can I even leave the country? What's going to I 737 PROCEEDINGS 1 2 happen if I try to go back? So that was to him in particular. And then as to each class member, certainly each that had 3 to notify TransUnion in order to get their name off of it, 4 that's having to do something. 5 injury. 6 anxiety or anything about that. They had to spend the time to do that, and maybe some 7 MR. NEWMAN: 8 THE COURT: 9 MR. NEWMAN: 10 11 I think that's a concrete And you know our objection to that now. I do. So we have gone through-19. Next page we reiterate our request for an instruction on the definition of consumer report as: 12 "A communication which is used or expected to be used 13 or collected to serve as a factor in establishing the 14 consumer's eligibility for credit, insurance, housing or 15 employment." 16 Obviously, that's in support of our argument that the 17 class on the e(b) claim needs to be limited to those people 18 about whom data was sold. 19 THE COURT: 20 MR. NEWMAN: Okay. Okay. Overruled. Next page we reiterate our 21 arguments as to the definition of inaccuracy. 22 sentence is -- you know, really does implicate First Amendment 23 issues. 24 accuracy based solely on TransUnion's status as a consumer 25 reporting agency. And the second Plaintiff seems to be arguing for a higher standard of We've heard evidence that OFAC itself 738 PROCEEDINGS 1 permits delivery of results that are -- could be described as 2 false positives. 3 You have heard testimony there's other providers of 4 interdiction software that are out there that deliver higher 5 rates of false positives, and we suggest that the First 6 Amendment requires that the accuracy standard must be the same 7 across the board regardless of what industry you're in. 8 9 Why though? THE COURT: That would just make the FCRA meaningless. 10 MR. NEWMAN: 11 THE COURT: Not necessarily, your Honor. The FCRA says that credit reporting 12 agencies must use reasonable procedures to ensure maximum 13 possible accuracy. 14 the way, didn't -- didn't -- they then went and did the human 15 looking at it to make sure it was accurate. 16 understand that argument. 17 That doesn't apply to those banks, which by I don't even But I mean you want to preserve your First Amendment 18 argument to the FCRA, okay. 19 held to a different standard. 20 different standard. 21 MR. NEWMAN: TransUnion, you're right, is being The FCRA holds them to that Well, again, your Honor, we believe the 22 FCRA, you know, permits some new remedies. 23 opportunities for consumers to achieve corrections to their 24 report. 25 It provides But in terms of whether something is accurate or not 739 PROCEEDINGS 1 accurate, the First Amendment imposes -- the First Amendment 2 does not permit distinctions between a credit reporting agency 3 or Google or the New York Times. 4 I mean, if the New York Times were to publish: 5 Mr. Ramirez has a name that is a very much like two names on 6 the OFAC list, they could not be held liable for that. 7 it's -- and the First Amendment does not admit distinctions 8 based on status. That's all we're saying. 9 THE COURT: 10 MR. NEWMAN: 11 THE COURT: 12 MR. NEWMAN: 13 14 I mean, So that's your objection to the FCRA. Correct. Okay. Well, it's our objection to the instruction, your Honor. THE COURT: No. It's the objection to the FCRA. It's 15 the FCRA that applies that standard to consumer reporting 16 agencies. 17 solely on the statute that Congress passed, that because 18 consumer reporting agencies and how these reports are used, 19 you're right. 20 commercial speech. 21 22 We're not -- it's not a defamation case. It's based They did put a higher standard on this MR. NEWMAN: Understood, your Honor. Our next instruction, we renew our argument that the jury 23 should be permitted to go below $100 based on the language in 24 the statute that says the award is actual damages or. 25 THE COURT: Okay. The objection is preserved. 740 PROCEEDINGS 1 MR. NEWMAN: Next page. We do -- this is something 2 new. 3 bit of something about how our courts are structured. 4 talked about the Third Circuit, and all we are asking for is 5 simply for the judge to explain to the jury completely truthful 6 factual information as to how our courts are organized. We do believe it's worthwhile to tell the jury a little 7 THE COURT: 8 MR. NEWMAN: 9 We've Why? Why? Because it's not going to be readily apparent to them. 10 THE COURT: 11 MR. NEWMAN: Yeah, but why does it matter? Why does it matter? It -- because we 12 have -- we've put in evidence that we did not appeal further to 13 the -- 14 THE COURT: Right. Then if we're going to do, then we 15 are going to put in evidence that you don't have a right of 16 appeal to the Supreme Court; that how many cert petitions do 17 they get and they take only about 70 a year, and generally only 18 if there is a conflict in the circuit. 19 conflict in the circuits on this issue. 20 MR. NEWMAN: 21 THE COURT: 22 MR. NEWMAN: And there is no Understood, your Honor. So we're not going to do this one either. Okay. And our last request is, we do -- 23 we are still concerned about the way that plaintiff's counsel 24 questioned the witness about Cortez, and I think we just need 25 to reiterate to the jury the point that questions from counsel 741 PROCEEDINGS 1 are not evidence. 2 THE COURT: Well, I do -- that will be in my 3 instructions because I will tell them at the beginning. 4 Plaintiff understands that. 5 MR. NEWMAN: 6 THE COURT: 7 MR. NEWMAN: 8 Very good, your Honor. Yeah. And, of course, we preserve our -- if there is anything we forgot to mention. 9 THE COURT: 10 MR. NEWMAN: 11 THE COURT: 12 MR. NEWMAN: They are preserved. Thank you, your Honor. There is a lot of legal issues in this. Yes, your Honor. 13 I just want to be sure because your Honor's pretrial order 14 does require us to make sure you're aware of the issues that we 15 are preserving, and I thank you for that. 16 THE COURT: 17 MR. FRANCIS: 18 No. Absolutely, absolutely. So can I get a sense? Are we getting three witnesses today and then you're closing? 19 MR. NEWMAN: We're going to put on, you know, at least 20 two. 21 think we will be able to finish today. And we'll make a decision later as to the third, but I 22 THE COURT: Can you tell him who the two are? 23 MR. NEWMAN: So Mr. Turek and Ms. Briddell. 24 25 possibly Ms. Cronshaw, not sure. THE COURT: All right. Thank you. And 742 PROCEEDINGS 1 2 judicial notice -- 3 4 Do we want to address the request for MR. NEWMAN: THE COURT: No. is all here. 5 MR. NEWMAN: 6 MR. LUCKMAN: 7 Great. THE CLERK: 9 MR. LUCKMAN: 10 12 Fantastic. Your Honor, before I -- can I get the key to that room? 8 11 Let's do that later because the jury THE COURT: It's unlocked. I had someone -- Oh, it's unlocked. Thank you. I'm going to get my notebook. right back, and then we'll start. (Jury enters the courtroom at 8:37 a.m.) 13 THE COURT: Good morning, ladies and gentlemen. 14 Welcome back. 15 now resume with the defendant's next witness. 16 17 I will be I hope you managed to stay cool. Good morning, your Honor. MR. NEWMAN: And we will TransUnion calls Peter Turek. 18 PETER TUREK, 19 called as a witness for the Defendant herein, having been duly 20 sworn, testified as follows: 21 THE WITNESS: 22 THE CLERK: I do. Can you please state your name and spell 23 your last name for the record? 24 THE WITNESS: 25 U-R-E-K. My name Pete Turek, T as in Tom, 743 TUREK - DIRECT EXAMINATION / NEWMAN 1 THE COURT: 2 THE WITNESS: 3 Good morning, Mr. Turek. Good morning. DIRECT EXAMINATION 4 BY MR. NEWMAN 5 Q. 6 the jury. 7 A. 8 TransUnion. 9 Q. What do you do for a living at TransUnion? 10 A. Currently. 11 TransUnion in our financial services group. 12 Q. Does your job involve reseller relationships? 13 A. Yes, it does. 14 Q. How does it? 15 relationships? 16 A. 17 services through resellers to end users. 18 can be, you know, auto dealers. 19 Q. How long have you worked for TransUnion? 20 A. This December will be 30 years. 21 Q. A little more than 12, right? 22 A. Yeah, a little bit more than 12. 23 Q. You are under oath. 24 25 Please introduce yourself to the ladies and gentlemen of Hi. Good morning. My name is Pete Turek. I'm with I'm a senior V.P. and sales leader for What does it mean to be involved in reseller So just means we distribute our credit reports and Typically end users Started when I was 12. Make sure our record is really clean. Years ago do you recall any unusual ways TransUnion delivered credit reports to customers? 744 TUREK - DIRECT EXAMINATION / NEWMAN 1 A. 2 used to go to Wanamakers and pick up their credit applications 3 every Monday morning and bring them back to the office, pull 4 the credit reports, staple them to the credit applications and 5 drive them back to their office in the afternoon. 6 Q. What was your first position at TransUnion? 7 A. I was a data analyst at TransUnion. 8 job was collecting the various media that lenders in that area 9 would submit, payment information. 10 Oh, geeze. Well, in Washington D.C. where I started, we So first -- my first So if you remember like a 6250 reel of tape, like from 11 Navy Federal Credit Union, they would send it to our office. 12 And I would make sure that it was labeled properly and sent it 13 on to Chicago to be processed. 14 Q. Was accuracy important to you in your job at that time? 15 A. Absolutely. 16 Q. During your time at TransUnion, have you received 17 instructions to comply with the Fair Credit Reporting Act? 18 A. 19 procedures that we have to follow to do our jobs. 20 Q. And what about specific training? 21 A. We -- we have all kinds of training. 22 learning and compliance portal. 23 to go in and, you know, review the information, and at the end 24 there is a test that you have to pass. 25 know, 95 percent or something like that, where you have to Yes, we did. Definitely. We -- you know, we have various policies and Today we have a So on a monthly basis we have I think it's like, you 745 TUREK - DIRECT EXAMINATION / NEWMAN 1 certify that you've read the material and you acknowledge 2 everything you have to do. 3 Q. 4 reseller? 5 A. 6 and services to other end users. 7 Q. Is a reseller also a kind of consumer reporting agency? 8 A. For TransUnion we acknowledge that resellers are CRAs, or 9 credit reporting agencies. You mentioned the word "reseller" before. What is a Resellers are companies that distribute our credit reports 10 Q. 11 resellers? 12 A. 13 services more broadly. 14 you know, there is over 22,000 dealers and they use services 15 from various software platforms. 16 it makes our jobs more effective and more efficient if we 17 deliver the data through resellers. 18 Q. 19 Act? 20 A. Absolutely. 21 Q. Does TransUnion expect its resellers to use reasonable 22 procedures when passing along data it receives from TransUnion? 23 A. 24 same policies and procedures that we have to follow as well. 25 Q. Why does TransUnion permits its data to be resold by Well, for TransUnion it's mainly to distribute our For example, in -- in the auto space, And it's just -- it makes -- Are resellers also subject to the Fair Credit Reporting Yes. We contractually, you know, flow down a lot of those Does TransUnion expect resellers to follow guidance and 746 TUREK - DIRECT EXAMINATION / NEWMAN 1 instructions on the use of TransUnion's data? 2 A. Yes. 3 Q. What are the -- some ways that TransUnion presents those 4 expectations to resellers? 5 A. 6 to resellers, as well as, you know, annual audits and things 7 like that. 8 Q. Do you know what a general announcement is? 9 A. General announcements are bulletins that we send on a Contractually through all of our contracts and amendments 10 regular basis to our resellers, and today we actually deliver 11 those through portal. 12 So a long time ago it was in the mail, but now a lot of 13 our resellers and end users have access to a portal that allows 14 them to, you know, secure that information and it also gets 15 pushed to them as well. 16 Q. 17 the information in the general announcements? 18 A. Absolutely. 19 Q. Does TransUnion's expectation for resellers include using 20 the most up-to-date format for reporting information? 21 A. 22 they are ultimately on the hook for complying with that 23 information. 24 that they are delivering up-to-date information to their 25 customers, the end user is also getting the information. Are resellers expected to read and understand and apply Yeah. So a lot of the end users that use the credit data, So not only is the reseller trying to make sure 747 TUREK - DIRECT EXAMINATION / NEWMAN 1 Especially when it comes to compliance-related services. 2 At the end of the day, in this case dealers are ultimately 3 on the hook. 4 desire to make sure that it's accurate. 5 Q. 6 language that should be included within a credit report, does 7 TransUnion expect the resellers to transmit that language 8 correctly? 9 A. But, yeah, they -- they absolutely have a high If TransUnion provides specific information or specific Yes. Absolutely. I mean, it's -- it's no different than 10 delivering the credit report, right? 11 deliver the credit report and all the services and all the 12 requirements that we have, you know, accurately and timely. 13 Q. 14 required to describe Name Screen results as potential matches 15 rather than matches? 16 A. Yes. 17 Q. Were they required to include that language? 18 A. Yes. 19 Q. Except for the report obtained by Dublin Nissan, are you 20 aware of any reseller report sold after the end of 2010 that 21 dropped the word "potential" from the document? 22 A. No. 23 Q. Have you ever heard of an organization called Open Dealer 24 Exchange, or ODE? 25 A. We're expecting them to Do you know if at the end of 2010 and later resellers were Open Dealer Exchange is a reseller. They are jointly 748 TUREK - DIRECT EXAMINATION / NEWMAN 1 owned by Reynolds and Reynolds and ADP. 2 MR. NEWMAN: May we please have on the screen Page 5 3 of Exhibit 75? 4 BY MR. NEWMAN 5 Q. 6 it on your screen as well. And you will also see that in your book and you will have 7 8 MR. NEWMAN: And can we please zoom in on the highlighted material? 9 (Document displayed) 10 BY MR. NEWMAN 11 Q. 12 Acquisition G via ODE/Dublin Nissan" signify? 13 A. 14 delivered to Dublin via ODE. 15 way that we do that is so that when consumers get copies of 16 their credit reports, they understand which organization 17 actually was the end user. 18 Q. 19 transaction? 20 A. That's the reseller, ODE. 21 Q. Was Dealertrack the reseller of the data here? 22 A. No. 23 Q. If Dealertrack had been the actual reseller in this 24 situation, would it have been displayed here on Exhibit 75? 25 A. Do you know on this document what the entries for "Dublin This is an inquiry that states that the credit report was And it's -- it's basically the Does this document also state who the reseller was in this Absolutely. 749 TUREK - DIRECT EXAMINATION / NEWMAN 1 MR. NEWMAN: 2 Exhibit 41? 3 BY MR. NEWMAN 4 Q. 5 screen. 6 Could we please have on the screen And turn to 41 in your book. You'll also see it on your (Document displayed) 7 Q. Are you familiar with documents of this kind? 8 A. Yes. 9 Q. What services does Dealertrack provide to auto 10 dealerships? 11 A. 12 range of services to dealers through various integrations, but 13 in this case it allows dealers to submit a credit application 14 to more than one lender to obtain credit approval. 15 also allow dealers to pull credit reports prior to that. 16 Q. 17 "credit aggregator." 18 A. Dealertrack is a credit aggregator, and they provide a And is Dealertrack -- you said -- you used the term 21 22 Is that the same as a reseller? No, it's not. 19 20 MR. NEWMAN: Could we please see Page 4 of the exhibit? And can we zoom in on the checked box that says "ADP"? Could you please highlight that? 23 There we go. 24 (Document displayed) 25 But they Thank you. 750 TUREK - DIRECT EXAMINATION / NEWMAN 1 BY MR. NEWMAN 2 Q. What does the reference to ADP signify on this document? 3 A. In this particular case the dealer is using ADP systems. 4 And there's -- again, the data is delivered through multiple 5 systems, but in this case there is an integration agreement 6 between Dealertrack and ADP. 7 ADP system, it -- the Dealertrack -- because of the agreement, 8 ADP is required to use ODE's credentials. 9 And since the dealer is using an So ODE, again, is jointly owned by Reynolds and Reynolds 10 and ADP, but since they are using their system, they want to 11 make sure that they use their reseller, which is ODE. 12 Q. 13 directly from TransUnion? 14 A. 15 somewhere in that contract that says that they will only use 16 ODE credentials. Would the dealer have any ability to get credit reports Not in this case. 17 18 MR. NEWMAN: Can we please have Exhibit 42 on the screen? 19 20 They actually sign another waiver And can we please zoom in a little bit on the title of the document? 21 (Document displayed) 22 BY MR. NEWMAN 23 Q. Do you know what this document signifies? 24 A. It looks like the agreement between ADP and Dublin Nissan. 25 MR. NEWMAN: And if we can turn to Page 8 of the 751 TUREK - DIRECT EXAMINATION / NEWMAN 1 document? 2 3 And if we can zoom in on the second paragraph where it says "This agreement shall be deemed." 4 (Document displayed) 5 BY MR. NEWMAN 6 Q. It is a little blurry, so I will read it, if I could. 7 "This agreement shall be deemed a contract between 8 the dealer services division of ADP, Inc. (ADP) and 9 client" -- and earlier in the document client is referred 10 to as Dublin Nissan -- "and client with respect to credit 11 reports and other ancillary services provided by Experian 12 and Equifax and a contract between Open Dealer Exchange 13 LLC (ODE) and client with respect to credit reports and 14 other ancillary services provided by TU." 15 Do you know why both ADP and ODE are referenced in this 16 document? 17 A. 18 contractual requirements, each CRA has with ADP or ODE. 19 Q. 20 not move through the ODE channel, correct? 21 A. 22 just referring to it there from a contractual perspective. 23 Q. The reason they are referenced there is the reseller And so information provided by Experian and Equifax would Potentially I think it's still the same. I see, okay. 24 25 I think they are MR. NEWMAN: exhibit? And could we please go to Page 11 of the And if we can zoom in on G, "OFAC Service Additional 752 TUREK - DIRECT EXAMINATION / NEWMAN 1 Terms." 2 (Document displayed) 3 BY MR. NEWMAN 4 Q. Are you familiar with contractual provisions of this kind? 5 A. Yes. 6 with all of our customers, and this is the language that ADP is 7 flowing down to the end user. 8 MR. NEWMAN: 9 10 This is the OFAC language. TransUnion has contracts And could we please replace this with a demonstrative that makes this a little easier to read? And just zoom in on G-1 please. 11 (Document displayed) 12 BY MR. NEWMAN 13 Q. What is the importance of this language? 14 A. This language is there to articulate to the reseller and 15 end users that OFAC services are being provided, but they can't 16 be used to deny anyone credit. 17 Q. 18 receives from the reseller ODE? 19 A. 20 going to use the OFAC services to deny anyone credit. 21 Q. Why is that agreement important? 22 A. It's the law, right? 23 through their own due diligence process. 24 Q. 25 from the end users of data obtained from resellers? What has the dealer agreed to do with the OFAC data it Here the end user is agreeing to that; that they are not I mean, they can't. They have to go Does TransUnion expect this legally compliant behavior 753 TUREK - DIRECT EXAMINATION / NEWMAN 1 A. Yes. 2 Q. Does TransUnion do anything else to ensure that Name 3 Screen data alone is not used to deny credit or otherwise take 4 any adverse action against any consumer solely on the basis of 5 a Name Screen results? 6 A. Correct. 7 Q. And what does TransUnion do? 8 A. We -- we take, just like all of our other language, we -- 9 we put in contractual language for the resellers and we require 10 the resellers to flow down that language to end users as well. 11 MR. NEWMAN: May we please see Exhibit 72? 12 And can we please zoom in on the highlighted material? 13 (Document displayed) 14 BY MR. NEWMAN 15 Q. Is this a reseller agreement like we just mentioned? 16 A. It is, yeah. 17 Q. And is that language -- did that language there, is that 18 designed to achieve the purpose you just mentioned? 19 A. It is, yes. 20 Q. Why is it important for TransUnion to impose that 21 requirement on resellers? 22 A. 23 are complying with the laws and regulations, and we want to 24 make sure that our resellers do as well. 25 long time, you know, reseller that we've been partners with for That's the one. Because it's part of our obligations to make sure that we You know, ADP is a 754 TUREK - CROSS EXAMINATION / BREWER 1 a long time. 2 any changes, things like this, and making sure that it's flowed 3 down to their end users. 4 5 And they have been very, very responsible with I have no further questions at this time, MR. NEWMAN: Mr. Turek. 6 THE WITNESS: 7 THE COURT: 8 9 Thank you. All right. Ms. Brewer. CROSS EXAMINATION BY MS. BREWER 10 Q. 11 the attorneys for the plaintiff and the class. 12 A. Good morning. 13 Q. Mr. Turek, you don't dispute that the credit report that 14 Dublin Nissan obtained through Dealertrack and ODE is a genuine 15 TransUnion credit report, do you? 16 A. 17 what happened between ODE and Dealertrack. 18 Q. 19 Exhibit 1 in this case, TransUnion does not dispute that that 20 is, in fact, a TransUnion credit report, correct? 21 A. Yes. 22 Q. Dealertrack just used ODE's system to get the TransUnion 23 credit report to Dublin Nissan, is that right? 24 A. Say that again? 25 Q. Dealertrack used ODE's system to get the TransUnion credit Good morning, Mr. Turek. I'm Carol Brewer and I'm one of That is a credit report we delivered to ODE. Not sure But the end result, the actual credit report that's Sorry. 755 TUREK - CROSS EXAMINATION / BREWER 1 report to Dublin Nissan. 2 A. 3 system used ODE's credentials to pull it through their 4 technology. 5 Q. 6 wouldn't you agree? 7 A. I don't know. 8 Q. It's not in this case. 9 A. I -- I don't know that. 10 Q. Okay. 11 A. I don't know that. 12 Q. Okay. 13 parties into this case, right? 14 A. I don't know that. 15 Q. And TransUnion could have brought those parties into this 16 case if TransUnion had thought that either of those parties had 17 any liability here, right? In this case, my understanding is that Dealertrack's Okay. Well, Dealertrack is a third party to this case; And ODE is not in this case either, is that right? Well, TransUnion didn't bring either of those 18 MR. NEWMAN: 19 THE COURT: Objection. Sustained. 20 BY MS. BREWER 21 Q. 22 auto dealers to TransUnion, is that right? 23 A. 24 the same general announcements that a lot of other software 25 platforms provide, but in this particular case our -- our Dealertrack provides a secure channel that connects the Dealertrack is a credit aggregator. They, you know, get 756 TUREK - CROSS EXAMINATION / BREWER 1 contractual obligations were with ODE. 2 Q. 3 Ramirez's credit report, which is Exhibit 1 -- But you do not dispute that the raw data on Sergio 4 MR. NEWMAN: 5 BY MS. BREWER 6 Q. Your Honor, can -- -- did come from TransUnion? 7 MR. NEWMAN: Excuse me, your Honor. If she's going to 8 be questioning the witness on Exhibit 1, can we please display 9 it so the witness has it? 10 MS. BREWER: Sure. 11 Mr. Reeser, can you blow up the top part of that please? 12 (Document displayed) 13 BY MS. BREWER 14 Q. 15 dispute that this is a genuine TransUnion credit report, 16 correct? 17 A. It -- it certainly looks like a credit report there. 18 Q. Okay. 19 TransUnion's header and -- and that new header was the header 20 that changed "match" to "potential match." 21 that? 22 A. No. 23 Q. You -- your testimony was that the -- 24 25 Mr. Turek, you don't dispute that -- TransUnion does not You testified that you asked your resellers to use MS. BREWER: Do you remember If you would take the next section, where it says "Special Messages"? 757 TUREK - CROSS EXAMINATION / BREWER 1 (Document displayed) 2 BY MS. BREWER 3 Q. 4 says "Input name matches name on OFAC database." 5 that? 6 A. Yeah. 7 Q. And your testimony was that someone was supposed to change 8 "Input name matches" to "Input name potentially matches." 9 that your testimony? Okay. In reference to Mr. Ramirez's credit report, it Do you see Is 10 A. Yes. 11 Q. And who do you contend was supposed to make that change? 12 A. In this particular case ODE is the entity that should have 13 had "potential" in there. 14 Q. 15 TransUnion the new format before TransUnion allowed ODE to sell 16 reports, right? 17 A. 18 them to have that language in there. 19 the same way we did with every other reseller. 20 understanding is this is the only one that -- that it's never 21 had "potential." 22 Q. Did -- 23 A. I've never seen it. 24 Q. Did -- 25 A. Never seen it like that before. Okay. So TransUnion could have required ODE to give So we have a contract with ODE, amendment that required We followed our processes And my 758 TUREK - CROSS EXAMINATION / BREWER 1 Q. 2 the new format before it started selling these reports? 3 A. 4 time. 5 And just like any of the other changes and all the other 6 resellers, we expected them to follow the procedures that was 7 delivered to them. 8 typically do it. 9 Q. Did TransUnion ever check to make sure that it was using So we have been selling the reports through ODE for a long And when that came through, they received the bulletin. And, you know, that's -- that's how we But you don't usually check to make sure that they 10 actually follow them? 11 A. 12 understanding is this is the only one that -- you know, the 13 only case I've ever seen. 14 Q. 15 Nissan are supposed to agree to a contractual provision -- and 16 here you showed a couple of different contractual provisions; 17 that no transaction will be denied and that no adverse action 18 will be taken against a consumer based just on a potential 19 match to the OFAC Name Screen data. 20 You just rely on the contract? We rely on the contract for a lot of our services, and my Okay. TransUnion says that its subscribers like Dublin Is that a fair characterization of what TransUnion's 21 requirement is? 22 A. 23 especially with OFAC, not to deny credit based solely on 24 matches. 25 Q. Yeah. We require customers that use our data to -- You don't know whether TransUnion subscribers actually 759 TUREK - CROSS EXAMINATION / BREWER 1 read those contracts, do you? 2 A. We expect they do. 3 Q. But you don't check to make sure they do? 4 A. In this case we have contractual requirements with ODE, 5 and we expect ODE to have reasonable procedures that when they 6 sign up a dealer. 7 all the training and they sign all the agreements and they go 8 through all of that with each dealer. 9 Q. And I've seen them do it. They go through And you wouldn't be surprised to learn that Dublin Nissan 10 doesn't communicate that contractual information to its 11 employees, would you? 12 A. 13 expect that any business that would have their own policies and 14 procedures and their own legal staff to ensure that they are 15 complying with the law. 16 Q. 17 contract to all of their employees and salesmen; is that 18 TransUnion's expectation? 19 A. 20 where, you know, procedures and policies specifically related 21 to law, especially something like this, would be communicated. 22 23 24 25 I'm not sure what Dublin Nissan would do, but we would And you would expect auto dealers to distribute that That's typically how it works across several industries, MS. BREWER: Mr. Reeser, would you please pull up Exhibit 42? (Document displayed) 760 TUREK - CROSS EXAMINATION / BREWER 1 BY MS. BREWER 2 Q. 3 Would you turn to Exhibit 42, please, Mr. Turek. (Witness complied) 4 Q. 5 what it is? 6 A. 7 How many pages is that contract -- would you first tell me Is this on the screen, too? Is this in front of me? This looks like Page 1 to the ADP agreement between ADP 8 and Dublin Nissan. 9 Q. All right. 10 A. I'm not sure how big their agreement is. 11 the cover page. 12 13 MS. BREWER: MR. NEWMAN: the screen. 16 17 This looks like Do we have an exhibit that's the entire contract? 14 15 How many pages is that agreement? Yes. Right there. THE WITNESS: A. 18 It's also in your book. Oh. It's not only on Under Tab 42. Oh. This looks like it's 24 pages. MS. BREWER: Mr. Reeser, could you quickly flip 19 through the contract on the screen? 20 just to see how long it is? 21 (Document displayed) 22 MS. BREWER: Not enough to read it, but Thank you. 23 BY MS. BREWER 24 Q. 25 would understand this contract, do you? Mr. Turek, you don't think that Dublin Nissan's employees 761 TUREK - CROSS EXAMINATION / BREWER 1 MR. NEWMAN: 2 THE COURT: Objection. Overruled. 3 A. 4 have with other customers, and we expect that any business that 5 is going to enter into an agreement would take that and educate 6 their employees on what that contract means and kind of tailor 7 it into their own policies and procedures. This contract is, you know, consistent with contracts we 8 There's 22,000 dealers, and each dealer is an independent 9 business, and they decide how they want to run their business. 10 I'm sure all of them, at least the ones that use ADP, have 11 signed this particular contract. 12 their sales process, the way that they train their employees 13 and everything is up to them, as long as they are complying 14 with the contract. 15 BY MS. BREWER 16 Q. 17 the Fair Credit Reporting Act, right? 18 A. 19 But the way that they handle Mr. Turek, you agree that OFAC information is covered by It is -- that's a good question. It's delivered with the credit report and it is part of 20 TransUnion's credit report services -- 21 Q. So -- 22 A. -- service to the credit report. 23 So we -- just like FICO scores and other things, we 24 constantly are looking for ways to help lenders and dealers 25 make more efficient decision, so yes. 762 TUREK - CROSS EXAMINATION / BREWER 1 Q. 2 that OFAC information is covered by the Fair Credit Reporting 3 Act, right? 4 A. Yeah. 5 Q. Okay. 6 would in any way excuse -- Exhibit 42, would in any way excuse 7 TransUnion from complying with the Fair Credit Reporting Act, 8 right? 9 A. Correct. 10 Q. And TransUnion's expert said that if someone is on the 11 OFAC list, banks are prohibited from extending credit to them, 12 right? 13 A. 14 offering a service, a name match service. 15 more of a way for lenders to quickly assess whether or not 16 instead of having 100, checking the OFAC registry on 100, maybe 17 they only have to check them on a handful. 18 So my question was a little different. TransUnion agrees And TransUnion doesn't contend that its contract Well, in this particular case our contracts, you know, are But it's a service that says: And, again, it's Hey, this is a potential 19 match and you should follow your own policies and procedures to 20 verify it. 21 Q. 22 list, banks can't extend credit to them, right? 23 A. 24 yes. 25 Q. That really wasn't my question. If someone is on the OFAC If the bank has checked the Department of Treasury's list, And car dealers aren't supposed to sell cars to consumers 763 TUREK - CROSS EXAMINATION / BREWER 1 whose names are on the OFAC list, right? 2 A. Correct. 3 Q. And there are huge fines and penalties if they do that, 4 right? 5 A. Yes. 6 Q. Is TransUnion familiar with the Cortez case? 7 A. I am not personally, no. 8 Q. Does -- is TransUnion aware that the Cortez Court said: 9 We are not persuaded that TransUnion's private contractual -- 10 MR. NEWMAN: 11 THE COURT: 12 BY MS. BREWER 13 Q. MR. NEWMAN: 15 BY MS. BREWER 16 Q. THE COURT: The witness said he wasn't aware of the case. 19 MS. BREWER: Okay. All right. The witness is representing TransUnion. 21 THE COURT: 22 the case. 23 BY MS. BREWER 24 Q. 25 Objection. -- emphasized that -- 17 20 Sustained. That the Court -- 14 18 Objection. I know. But he said he wasn't aware of I have no further questions. THE COURT: Thank you. Anything further? 764 TUREK - RECROSS EXAMINATION/ BREWER 1 REDIRECT EXAMINATION 2 3 MR. NEWMAN: Can we please have Exhibit 1 again, the last page of the document? 4 And can we zoom in on the highlighted text? 5 (Document displayed) 6 BY MR. NEWMAN 7 Q. 8 right? 9 10 Now, this is a report that was supposedly sold in 2011, And the document says "Copyrighted TransUnion 1994." Is there anything unusual about that? A. That doesn't look like our report. 11 MR. NEWMAN: 12 Thank you. RECROSS EXAMINATION 13 BY MS. BREWER 14 Q. 15 reason to believe that this wasn't a genuine TransUnion report. 16 Have you changed your mind? 17 A. 18 report. 19 Mr. Turek, your testimony earlier was that you had no No. That's -- that report is what we call a print image It's a teletype format. It's kind of old technology. And the top of that credit report did look like a 20 TransUnion credit report, but that bottom, we don't -- that's 21 something that -- copyright 1994, that's not something we would 22 have put out there. 23 delivered in, whatever, 2011. 24 Q. 25 in Exhibit 1 is from TransUnion, is that correct? That's not something we would have But TransUnion has no reason to believe that the raw data 765 TUREK - RECROSS EXAMINATION/ BREWER 1 A. 2 things are delivered through dealers and aggregators, I can 3 tell you that we have credentials with ODE via Dublin Nissan 4 and we deliver that. Yes. So, again, I mean, the ecosystem, the way that 5 But if they are going to put those credentials in a 6 software program, like Dealertrack, we can't -- we can't 7 guarantee that they are managing that data. 8 9 Our contract was with ODE. Dealertrack is. We're confident that ODE is delivering authentic TransUnion credit reports. 10 Q. 11 Exhibit -- the information contained in Exhibit 1 about 12 Mr. Ramirez is from TransUnion, correct? 13 A. 14 makes me question what's in between the top and the bottom. 15 Q. 16 Exhibit 1 came from TransUnion? 17 A. 18 of the credit report looks like our print image header. 19 don't -- at the bottom of the credit report, that's not 20 something we would have -- we would have sent along. 21 Q. 22 consumers when it -- when it transmits credit reports, does it? My question was: It certainly looks like it, but that last sentence there So you're saying it's a question about whether or not It looks like it. MR. NEWMAN: 24 THE COURT: A. It absolutely looks like it. The top But we Well, Dealertrack doesn't insert information about 23 25 TransUnion has no reason to believe that Objection, foundation. Overruled. Not that I'm aware of. 766 TUREK - RECROSS EXAMINATION/ BREWER 1 BY MS. BREWER 2 Q. And neither does ODE, correct? 3 A. No. 4 MS. BREWER: 5 THE COURT: 6 7 Thank you. All right, Mr. Turek. Thank you. THE WITNESS: Thank you, your Honor. 8 (Witness excused.) 9 THE COURT: 10 11 All right. Defendant prepared to call your next witness? Yes, your Honor. MR. NEWMAN: 12 Denise Briddell. 13 can give us a moment to get her. 14 You may step down. Our next witness is I believe she's out in the hallway. If you And Mr. Luckman will conduct the examination, your Honor. 15 DENISE BRIDDELL, 16 called as a witness for the Defendant herein, having been duly 17 sworn, testified as follows: 18 THE WITNESS: 19 THE CLERK: 20 21 22 Yes. Can you please state your name and then spell your last name for the record. THE WITNESS: Denise Briddell. B-R-I-D-D-E-L-L. 23 THE CLERK: Thank you. 24 THE COURT: Good morning. 25 Last name You may be seated. 767 BRIDDELL - DIRECT EXAMINATION / LUCKMAN 1 DIRECT EXAMINATION 2 BY MR. LUCKMAN 3 Q. Good morning, Ms. Briddell. 4 A. Good morning. 5 Q. Ms. Briddell, can you please tell the jury by whom you're 6 employed? 7 A. TransUnion. 8 Q. And where is your office? 9 A. Crum Lynne, Pennsylvania, which is about 10 miles outside Welcome to San Francisco. 10 of Philadelphia. 11 Q. 12 title is. 13 A. Vice-President, Contact Center Services. 14 Q. And what was the last part? 15 A. Contact Center Services. 16 Q. Thank you. 17 entails? 18 A. 19 and quality services. 20 business unit has policies and procedures, that those policies 21 and procedures are documented; training new and existing 22 associates, as well as then performing quality checks on those 23 policies and procedures. 24 any of the procedures that we have established. 25 Q. Okay. Can you tell the jury please what your current And can you describe, please, what your job So my area of responsibility is policy management training What that entails is ensuring that the So making sure agents are adhering to When you say the business unit, am I correct the business 768 BRIDDELL - DIRECT EXAMINATION / LUCKMAN 1 unit was formally called Consumer Relations? 2 A. Correct. 3 Q. And how long have you held your current title? 4 A. Since February of this year. 5 Q. Congratulations. 6 A. Thank you. 7 Q. And how long have you been with TransUnion? 8 A. 24 years, since June 7th. 9 Q. 24 years since? 10 A. June 7th. 11 Q. Okay. 12 whole period of time? 13 A. 14 but two years I worked in the Corporate Compliance Department 15 as an analyst that was responsible for the compliance of 16 Consumer Relations. 17 Q. 18 detail, but briefly about your tenure with TransUnion, both 19 Compliance and Consumer Relations? 20 A. 21 24 years. 22 a person that at that time I was responsible to review written 23 correspondence from consumers, determine what they were 24 requesting as far as what items they were disputing, reviewing 25 that correspondence, initiating investigation. No. And it's now called Contact Center Services. And were you with Consumer Relations during that I was with Consumer Relations for most of my tenure, Can you tell the jury, please, briefly, not too much Okay. So I had a lot of positions in TransUnion over the I started out as a dispute investigator, so that is So reaching out 769 BRIDDELL - DIRECT EXAMINATION / LUCKMAN 1 to the data furnisher and then processing the request. 2 they want any changes made to, like, personal information that 3 would be done as well. 4 So if I also worked in the Call Center as a call center rep, a 5 trainer for a few years. 6 of the agents that would check the work of our other agents. 7 Manager, team leader of Training and Quality and Compliance. 8 Quality for a few years. I was a compliance analyst. I was one My responsibility was to 9 ensure that the Consumer Relations business unit was following 10 all of the corporate policies and procedures and any state and 11 federal mandates that we were required. 12 And part of that also was consultation with the business 13 unit. 14 business unit was undertaking, I would be consulted to see, you 15 know, are we in compliance with this. 16 recommendations if we needed to seek out legal counsel for 17 different things. 18 Q. 19 the jury what, if any, training you have had in regard to your 20 job, in regard to the Fair Credit Reporting Act? 21 A. 22 years ago, was typically side-by-side, but it has matured over 23 the years. 24 Q. What is side-by-side? 25 A. Side-by-side. So if there was any projects or initiatives that the And I would make During the course of the 20 years, can you describe for So training varied. Back then most of the training, 24 You sit with an experienced person that 770 BRIDDELL - DIRECT EXAMINATION / LUCKMAN 1 knows the process and you observe them and they train you on 2 what they are doing. 3 then you process yourself. 4 5 And then you take notes and you learn and And then as the years progress, the training is classroom type of training I have been in. 6 And then for FCRA, I'm certified through the CDIA, which 7 is the Consumer Data Industry Association, and that's the trade 8 association for the credit reporting industry. 9 Q. Tell the jury how the associates were trained in 2011, 10 say, 2011? 11 A. 12 training varies, depending on which department the associate is 13 headed for. 14 nine weeks of training. 15 So in 2011 we had classroom training. And the classroom So that training can vary anywhere from six to It's blended. So they are in the classroom for a good portion of that 16 training, where it's instructor led. 17 know, how to understand a credit report. 18 the report. 19 How to send letters to consumer and respond to their questions. 20 Then they have a period where we call it OJT, which is How to dispute the FCRA. They are going over, you All the contents of Any other regulations. 21 on-the-job training. 22 floor, in kind of like a nested environment where they have a 23 lot of coaching and assistance from my team, either the 24 training or the QA department or their own internal group, 25 seniors or experienced people. So we actually have them process on the 771 BRIDDELL - DIRECT EXAMINATION / LUCKMAN 1 Q. 2 have worked in all the departments, but can you tell the jury, 3 please, exactly what Consumer Relations does, which is now 4 called Contact Center? 5 A. Contact Center Services. 6 Q. Sorry. 7 department does? 8 A. 9 have me saying it. Okay. And you maybe previewed this by saying that you Can you tell the jury just what that -- what your So Consumer Relations is responsible -- sorry. Now you Contact Center Services is responsible for 10 assisting and communicating with consumers directly. 11 consumer wants a copy of their credit report, we are 12 responsible to ensure that they receive their copy of their 13 report. So if a 14 If a consumer wants to file a dispute, we handle that. 15 If they would like to add a fraud alert to their file, we 16 would do that. 17 victim of fraud, we also do that as well. 18 A security freeze, if they believe they are a So anything dealing with the consumer directly, that's 19 what consumer relations does. 20 Q. 21 consumers dispute information. 22 please, what that means and how it works? 23 A. 24 their credit report, they can then file a dispute. 25 find that something is inaccurate or needs to be updated, they Now, you mentioned something, the dispute process, when Can you explain to the jury, So the dispute process, once a consumer receives a copy of So if they 772 BRIDDELL - DIRECT EXAMINATION / LUCKMAN 1 would contact us to initiate a dispute, and we do that free of 2 charge. 3 Q. And how can they contact TransUnion? 4 A. Various ways. 5 Send us a letter, mail, or they can call us. 6 Q. 7 process follows that? 8 A. 9 dispute, then we initiate the process. They can do it online, at our website. And once that contact is made from the consumer, what How does it work? So once we receive the request from the consumer for a So the first thing we 10 would do is make -- pull up the consumer's file. 11 personal information. 12 we would take all of that into account. 13 documentation for their dispute. 14 verification to the furnisher of the information. 15 example, a bank. 16 Look at the If they provided us with documentation, So supporting We would send out a dispute So if the consumer were saying: So, for ABC Bank, I was never 17 late. 18 bank indicating that information. 19 could then do their investigation and respond back either to 20 change it, to remove or to update it. 21 Q. 22 information was sent in to resolve the dispute? 23 A. 24 from the consumer directly, so supporting documentation, we 25 don't even need to reach out to the data furnisher. We would ensure a dispute verification was sent to that So then that data furnisher What, if anything, would the associate do if sufficient So there are times that if we receive certain information 773 BRIDDELL - DIRECT EXAMINATION / LUCKMAN 1 So for that example that I referenced about ABC Bank, if 2 the consumer had a letter from the bank indicating that they 3 were never late and that letter was authentic, we could take 4 that and make the update, and then we would not even contact 5 ABC Bank. 6 Q. 7 either the change is made or the reinvestigation with the bank 8 is completed? 9 A. And what happens after the process is complete, after What's the next step? So after the responses have been received and any updates 10 made, then a written notice of results is sent to the consumer. 11 Q. 12 satisfied or happy with the outcome? 13 A. 14 information or they could contact the company directly. 15 And what if the consumer responds back they are not Yes. Do they have any rights? So at that point the consumer could re-dispute the So using my same example, like ABC Bank. They could go to 16 them directly to dispute the information or they can add a 17 consumer statement to their file, which is basically a brief 18 statement that would contain any feedback that they would want, 19 any kind of statement about something in particular in their 20 file, and it would remain on their file and be part of their 21 credit report until such time that they request us to remove 22 it. 23 Q. 24 TransUnion do if a consumer disputes an OFAC Name Screen? 25 A. Okay. And with regard to the OFAC Name Screen, what does So for the OFAC Name Screen process, it's a little 774 BRIDDELL - DIRECT EXAMINATION / LUCKMAN 1 different than the dispute process because it's not a -- we're 2 not going out to a third party or data furnisher. 3 internal within TransUnion for that process. 4 That's all So within our systems we have an OFAC dispute button in 5 the system. 6 initiate a dispute by clicking on that button, if they provide 7 the appropriate identifying information that's requested. 8 Q. 9 actually? So when a consumer disputes that, we would So we're clear, when you say a "button," what is it What does the associate see that they can dispute 10 the OFAC screen? 11 A. 12 relations system. 13 Q. 14 screen? 15 A. Uh-huh. 16 Q. So they could -- 17 A. Yes. 18 Q. -- pull it down or something? 19 A. Yes. 20 Q. Not a button on a desk, right? 21 A. No, no. 22 Q. Now, with regard to all disputes, do you know how many 23 disputes are received by TransUnion a month currently? 24 A. Currently, about 1.3 million a month. 25 Q. And how about back in 2011, do you know a number for that Oh, there is an OFAC dispute button that's in our consumer So the -- the associate is looking at that on their Yes, they could see it. It's on the screen. It's in the computer system. 775 BRIDDELL - DIRECT EXAMINATION / LUCKMAN 1 monthly for that period of time? 2 A. 3 about 300-, 320,000 a month at that time. 4 Q. 5 clinic"? 6 A. Yes. 7 Q. What is that? 8 A. So a credit repair clinic is a company that charges 9 consumers to initiate a dispute on their behalf. It was a lot lower. Okay. So it was about 300-, 320- -- yeah, And are you familiar with the term "credit repair So they 10 charge consumers a fee for initiating a dispute and then they 11 submit all of the disputes for the consumer to us directly. 12 In my experience and from my 24 years, they do not 13 necessarily -- they are trying to trick the system. 14 mean by that is we get inundated a lot with credit repair 15 disputes because their intent is to, hopefully, have the data 16 furnisher mess up as far as the timelines and then the 17 information would have to be removed. 18 Q. 19 disputes that currently TransUnion receives by mail, say, from 20 credit clinics, credit repair clinics? 21 A. 22 definitely credit repair. 23 Q. 24 that number? 25 A. Okay. So what I And then are you aware of the percentage of all Oh, about 45 to 50 percent of our mail volume is And how about back in 2011, do you have an estimate for The mail volume? It was high, but not as high. I would say about 30 to 776 BRIDDELL - DIRECT EXAMINATION / LUCKMAN 1 35 percent at that time. 2 Q. 3 clinic? 4 A. Yes, absolutely. 5 Q. Currently how many associates does TransUnion employ in 6 consumer contact services? 7 A. 870. 8 Q. Okay. 9 A. A little less than 600. 10 Q. (Indicating.) 11 A. A little less than 600. 12 Q. Thank you. It was every three letters, one was from a credit repair And do you know the number for 2011? 13 Now, we went overtraining of the associates. 14 any, quality control or quality assurance services does 15 TransUnion have in the consumer contact department? 16 A. 17 where we check the work that is processed by the agents. 18 typically do up to 5 percent of all processed work; so the 19 disputes, phone calls, disclosure requests, et cetera. 20 a team. 21 Q. 22 quality assurance? 23 A. Uh-huh. 24 Q. And then is it any different when an associate is new to 25 the job? So we have quality assurance. What, if That's one of my teams, We We have You're looking at 5 percent of all the disputes for Correct. Yes. 777 BRIDDELL - DIRECT EXAMINATION / LUCKMAN 1 A. 2 learning the process, we do an increased amount. 3 are in actual training in the classroom, we QA 100 percent of 4 that work. 5 three months while they are in their nesting or training 6 period, and then it goes down to the 5 percent. 7 Q. 8 analysis have you done with -- about the number of disputes 9 that -- I'll say then, Consumer Relations received in 2011 and Yes. So for trainees, of course, because they are still So when they Then we knock it down to about 20 percent for about And with regard to the OFAC Name Screen, what, if any, 10 2012? 11 A. 12 the disclosure volume, as well as the calls that we received to 13 the dedicated phone line that we had set up. 14 at the hit rate, the amount of disputes in relation to the hit 15 rate. 16 So we looked at the number of OFAC hits in comparison to And just looked And then we also looked at, with the telephone report, 17 like, where those consumers were calling from. 18 that information, as far as state wide. 19 at that so we can get an idea on volumes. 20 Q. You said "we" looked at. 21 A. So for the analysis, my team did a lot of that, working in 22 conjunction with our technology team. 23 Q. Okay. 24 A. Uh-huh. 25 Q. Yes? Because we had We were just looking Who actually did the work? And you supervised the team that did the work? Yes. And where did the information come from? 778 BRIDDELL - DIRECT EXAMINATION / LUCKMAN 1 A. Our CRS system. 2 Q. And could you tell the jury what is your CRS system? 3 A. So our CRS system is our Consumer Relations System. 4 is where we enter all of the Consumer Relations activity. 5 if a disclosure is requested, it would be logged in that 6 system. 7 information that was pulled, the time of the contact, the time 8 that the agent did it, the agent's name. 9 subsequently came in, you would be able to see that. This So You could see the date that it was requested, the If a dispute then So any 10 type of activity, there would be an audit trail within the 11 Consumer Relations System. 12 So because of those audit trails, we are able to pull 13 metrics and stats as it relates to any of that activity. 14 that's how we were able to do the OFAC analysis. 15 Q. 16 are all kept in the ordinary course of TransUnion business? 17 A. Oh, yes. 18 Q. And they are created contemporaneously with the event that 19 they are keeping track of? 20 A. Correct, yes. 21 Q. And can you take a look Exhibit 69 in the book in front of 22 you, please? 23 So And the records and the stats you're talking about, they Absolutely. (Witness complied.) 24 A. Okay. 25 Q. Do you recognize that document, ma'am? 779 BRIDDELL - DIRECT EXAMINATION / LUCKMAN 1 A. Yes. 2 Q. What is it? 3 A. It's an OFAC Activity Report that my team created. 4 Q. That's what we were just discussing? 5 A. Yes. 6 MR. LUCKMAN: 7 MS. BREWER: 8 THE COURT: 9 Move to admit Exhibit 69. No objection. 69 admitted. (Trial Exhibit 69 received in evidence.) 10 BY MR. LUCKMAN 11 Q. 12 screen? 13 A. Yes. 14 Q. Okay. 15 columns are, what the information you actually have on here? 16 A. 17 January 2011 to December 2011. 18 of calls that we receive to the OFAC information line. 19 had a number, a dedicated OFAC number set up for consumers. 20 And this shows the number of calls that we received each month. 21 22 Can you see that okay, either in front of you or on the Yes. Can you describe, please, for the jury what the So this shows the OFAC activity month-to-month from The first line are the number And then to the far right you'll see the totals. So we And then the average per month. 23 The next row is the number of names checked for OFAC -- 24 Q. 25 do consumers get that number? Just to interrupt you, where is that number located? How 780 BRIDDELL - DIRECT EXAMINATION / LUCKMAN 1 A. Which number? 2 Q. The number that you said people call to the OFAC line. 3 A. Oh, that was on the OFAC letter that was sent to them. 4 if a consumer was a hit or a potential match to the OFAC list 5 and they got a letter, there was a phone number at the bottom 6 of the letter. 7 Q. And what did that phone number provide? 8 A. The phone number provided additional -- 9 MS. BREWER: 10 THE COURT: 11 MR. LUCKMAN: Objection, hearsay. I don't understand the question. I could ask it differently. I'm not 12 asking for hearsay. 13 BY MR. LUCKMAN 14 Q. Were you involved in setting up the phone system? 15 A. Phone number. 16 Q. The phone number which was involved with that? 17 A. Yes. 18 Q. Are you aware of what occurred when someone called the 19 number? 20 A. Correct. Yes. 21 MS. BREWER: 22 THE COURT: Objection. Overruled. 23 BY MR. LUCKMAN 24 Q. 25 happened when a person called that number? And could you describe for the jury, in essence, what So 781 BRIDDELL - DIRECT EXAMINATION / LUCKMAN 1 MS. BREWER: 2 THE COURT: Objection again. Overruled. It's not hearsay. Go ahead. 3 A. 4 additional information about what the OFAC Name Alert was and 5 how to dispute that information. 6 BY MR. LUCKMAN 7 Q. 8 information, correct? 9 A. So if someone called the number, they would receive They wouldn't dispute it on that call, but it gave them Correct. It provided them with information they would 10 have to submit to us in order to initiate the dispute. 11 Q. 12 does that mean? 13 A. 14 disclosure request. 15 Q. Okay. 16 A. For a copy of their credit report. 17 Q. Does that mean in January 2011 that there are 549,920 18 people had an OFAC alert on their disclosure? Okay. And what is the next "Names Check for OFAC," what So the number of names checked for OFAC, that is the Meaning, people that ask for -- 19 MS. BREWER: 20 THE COURT: 21 MS. BREWER: 22 THE COURT: Objection. Leading? Yes. Sustained. 23 BY MR. LUCKMAN 24 Q. 25 say about whether they had an OFAC hit on their disclosure? What, if any, does that -- what, if anything, does that 782 BRIDDELL - DIRECT EXAMINATION / LUCKMAN 1 A. 2 the disclosures. 3 were bumped against the OFAC database. 4 Q. 5 hit. 6 A. Correct. 7 Q. And what's the next line? 8 A. This is the actual number of OFAC hits. 9 Q. Okay. This was the number of names that were checked. So it was So we -- any disclosures that were processed Does that -- it does not mean there was an OFAC screen It means there was an OFAC screen? So of the -- just taking January 11th of the 10 549,000 disclosures that were screened against OFAC, am I 11 correct that -- if I can read that -- 2,398 were -- actually 12 had alert information on them? 13 A. Correct. 14 Q. And that goes again throughout end of the year and has the 15 totals? 16 A. Correct. 17 Q. And what's the next number down? 18 A. This is the number of disputes of the OFAC alert. 19 Q. What does that mean, ma'am? 20 A. So for that row above, that 2,398 hits in January, for 21 example, only one person disputed the alert. 22 Q. 23 Relations System that tracks and records all this information 24 automatically? 25 A. Okay. And that information comes from the Consumer Correct. 783 BRIDDELL - DIRECT EXAMINATION / LUCKMAN 1 Q. 2 hits? 3 A. 4 of OFAC hits as it relates to the number of names checked. 5 then the last line is the percent of disputes to hits. 6 Q. Why is that zero percent? 7 A. Because it was less than .01 percent. 8 Q. Okay. 9 A. Yes. 10 Q. And I'm not going to go over each of them, but that's the 11 same information for each month during January 2011, correct? 12 A. Correct. 13 Q. And to your knowledge, ma'am, that was after TransUnion 14 started disclosing the OFAC information when consumers asked 15 for the consumer disclosure? 16 A. 17 18 Okay. Right. And what is the next number, percentage of OFAC So that's just a formula just showing the percent And Correct. Objection. MS. BREWER: I don't believe there is evidence on that. 19 THE COURT: Well, I think that there is. 20 you do it in a non-leading way. 21 started... 22 MR. LUCKMAN: Why don't Are you aware when they Sure. 23 BY MR. LUCKMAN 24 Q. 25 information to consumers? Are you aware of when TransUnion started disclosing OFAC 784 BRIDDELL - DIRECT EXAMINATION / LUCKMAN 1 A. 2 ready at the end of 2010, but in 2011. 3 Q. Started January 2011? 4 A. Yes. 5 Q. Okay. 6 January 12th. 7 Yes. In 2011. We started, you know, getting the process And the next page, please, which is -- starts (Document displayed) 8 Q. 9 exact same information but for 2012? Without going through each and every one, is this the 10 A. Correct. 11 Q. Do you -- do you know, ma'am, when TransUnion started 12 sending the OFAC information in one envelope instead of two? 13 Do you know when that occurred? 14 A. I believe it was September. 15 Q. Of which year? 16 A. 2011. 17 Q. Right. 18 A. If I remember. 19 Q. Okay. 20 was disclosing the OFAC information in a single envelope with 21 the file? 22 A. Yes. 23 Q. When I say "file," I mean what we have been calling the 24 credit report to the consumer. 25 A. So in 2012, am I correct, ma'am, that TransUnion Correct. 785 BRIDDELL - DIRECT EXAMINATION / LUCKMAN 1 Q. 2 which TransUnion was making the disclosures with -- in a single 3 package? 4 A. Correct. 5 Q. Okay. 6 the number of disputes of OFAC in 2011 as opposed to 2012 when 7 it was being disclosed in the single envelope? 8 A. 9 in 2012. Okay. And so these are the numbers for 12 months during All together. And what, if any, difference are you aware of in Well, the number, as you can see, was higher in 2011 than So when it was a separate letter, we saw more 10 disputes versus when it was all together. 11 Q. 12 Okay. Thank you. Ms. Briddell, are you familiar with the history of 13 TransUnion's handling of consumer contacts about the OFAC 14 disputes? 15 A. Yes. 16 Q. Okay. 17 A. Correct. 18 Q. And can you tell me prior to 2010 if TransUnion disclosed 19 information about OFAC to consumers? 20 A. No, we did not. 21 Q. Do you know when that practice changed? 22 A. The practice changed in -- oh, it was in 2010, was when we 23 started disclosing that information. 24 Q. Okay. 25 A. It was a result of a legal mandate. And that's handled by your department, correct? And do you know why? 786 BRIDDELL - DIRECT EXAMINATION / LUCKMAN 1 Q. Legal mandate from where? 2 A. It was a case. 3 Q. Do you know the name of the case? 4 A. Cortez. 5 Q. Okay. 6 A. Just meetings and discussions internally. 7 Q. Were you -- did you participate in those meetings and 8 discussions internally? 9 A. Yes. 10 Q. And who attended those meetings and discussions? 11 A. So it was all of us in Operations, Legal, Compliance, our 12 technology folks. 13 Q. A cross-functional team? 14 A. Uh-huh. 15 Q. What does that mean in non-corporate speak? 16 A. Sorry. 17 different groups. 18 unit, but other business units across the company. 19 Q. Was it your job to read the Cortez decision? 20 A. No. 21 Q. Was it your job to implement the decisions made about how 22 to respond to the Cortez decision? 23 A. Can you ask that again? 24 Q. Was it your job to implement changes that the company 25 decided to make because of the Cortez decision? And how do you know that? So it was a cross-functional team. Cross-functional team is different departments, So not necessarily within just our business 787 BRIDDELL - DIRECT EXAMINATION / LUCKMAN 1 A. Yes. 2 Q. Okay. 3 processes did Consumer Relations have regarding OFAC or 4 questions about OFAC that were received? 5 A. 6 2006, just to make them aware of the OFAC product so they can 7 be prepared to answer any questions that consumers might call 8 us and ask as it relates to that. 9 Q. 10 Now, prior to the Cortez decision, what, if any, So we did have communication out to our agents as early as Ma'am, can you look at -- I think you have to switch binders -- Exhibit 28? 11 (Witness complied) 12 Q. Do you recognize that document? 13 A. Yes. 14 Q. And do you know who was responsible for creating it? 15 A. Yes. 16 Q. Who? 17 A. Me and my team. 18 Q. Why -- why was that created? 19 A. This is an internal bulletin, what we call internal 20 bulletin. 21 have to ensure that's communicated out to all of the agents. 22 So this is one of those documents. 23 the OFAC Name Screen Alerts. So any type of major policy or procedure change, we 24 MR. LUCKMAN: 25 MS. BREWER: And for this one it's for I want to move to admit Exhibit 28. No objection. 788 BRIDDELL - DIRECT EXAMINATION / LUCKMAN 1 THE COURT: 28 admitted. 2 (Trial Exhibit 28 received in evidence.) 3 (Document displayed) 4 BY MR. LUCKMAN 5 Q. 6 Are you familiar with that language? 7 A. Yes. 8 Q. And can you describe for the jury what was being conveyed 9 to the associates by that language? I'm going to direct your attention to the first paragraph. 10 A. 11 Name Screen Alert is. 12 that it's a product for our customers who have to be in 13 compliance with this Patriot Act. 14 if that alert is seen by the customer, then they have to take 15 additional steps to verify the identity of the consumer. 16 Q. 17 associates in connection with the bulletin? 18 A. For this -- 19 Q. I'm talking about the bulletin. 20 bulletin notice? 21 A. So this is explaining to associates what exactly the OFAC Like, why it came into play. As well as And it's telling them that Was there any -- what training, if any, was done with the Is it an internal Yes, internal bulletin is what we call it. 22 With this, since it's just a communication, typically what 23 happens is the team leaders would do what we would call pull-up 24 meetings. 25 it with them, make sure that they don't have any questions. So they would huddle their groups together, review 789 BRIDDELL - DIRECT EXAMINATION / LUCKMAN 1 And then that would be the extent of it for this. 2 Q. 3 the OFAC to the consumer? 4 A. Correct. 5 Q. So why were they -- why was TransUnion educating their 6 associates about OFAC? 7 A. 8 prepared to answer any questions that a consumer may have 9 because it could be information that's provided to the consumer Am I correct, ma'am, in 2006 TransUnion was not disclosing Because we still want to ensure that our associates are 10 by the customer. 11 Q. 12 notices regarding OFAC that you're aware of? 13 A. Yes. 14 Q. Can you turn to Exhibit 29 in the book? 15 Were there any other internal bulletins or internal (Witness complied) 16 Q. Did you find it? 17 A. Yes. 18 Q. Are you familiar with that document? 19 A. Yes. 20 Q. What is that, ma'am? 21 A. So this is an addendum to that original bulletin, where we 22 here are establishing some procedures to address consumer 23 concerns or -- as it relates to the name alert. 24 Q. Am I correct, ma'am, this adds a dispute component? 25 A. Yes, correct. 790 BRIDDELL - DIRECT EXAMINATION / LUCKMAN 1 Q. Ma'am? 2 A. I'm sorry. 3 Q. Yes, it does? 4 A. Yes, it does. 5 Q. Okay. 6 A. So if a consumer contacted us, then we would have a 7 process where we would leave a comment in our Consumer 8 Relations System and then information would be relayed to our 9 corporate group that handled the OFAC Name Screen Alert. Yes. Can you tell the jury what that procedure was? So 10 then they could do their investigation and have it removed. 11 Q. Was there training associated with this internal notice? 12 A. Yes. 13 Q. And do you know why the blocking process was put in place? 14 A. To my recollection, we had a few consumers that they 15 were -- there were a few escalated situations around the OFAC 16 Name Screen Alert, which is what prompted us to create a 17 process. 18 Q. 19 received by TransUnion back in 2006, '07, '08, '09? 20 something you recall? 21 A. Very, very, very few. 22 Q. So you do recall, and you recall it was very few? 23 A. Yeah. 24 Q. What's "very few" to you, because you were saying some 25 very large numbers before. Okay. Do you -- do you recall how many disputes were Is this It was maybe a handful at the time. What is "very few" to you? 791 BRIDDELL - DIRECT EXAMINATION / LUCKMAN 1 A. Five to ten, maybe. 2 Q. How often five to ten? 3 A. At that time maybe every two or three months. 4 very -- it was very small. 5 Q. 6 disputes that we were looking at earlier? 7 A. Absolutely. 8 Q. I'm going to ask you to take a look at Exhibit 30. 9 It was Would it be a small percentage compared to the overall (Document displayed) 10 Q. Are you familiar with that document? 11 A. Yes. 12 Q. Who prepared that? 13 A. Me and my team. 14 Q. You and your team? 15 A. Yes. 16 Q. Was that created after the Cortez meetings you talked 17 about earlier? 18 A. Correct. 19 Q. Okay. 20 this is. 21 A. 22 disclose the OFAC alert to consumers all of the system changes 23 that were made to our CRS system. 24 that needed to go out to the consumer. 25 submit proof to us. And explain, please, for the jury just exactly what So this outlines the dispute process that was created to So we created new letters If they needed to Because in order to properly do the 792 BRIDDELL - DIRECT EXAMINATION / LUCKMAN 1 dispute, we needed proof of their identity to do that. 2 letter was created. 3 So that This shows you the FIN Comment that was added to the 4 system. 5 OFAC hit. 6 bottom paragraph on the first page. 7 Q. So this is how the agent would know that there was an This would show up in the system. And that's that How about the second paragraph? 8 MR. LUCKMAN: 9 (Document displayed) Go to the second page, please. 10 BY MR. LUCKMAN 11 Q. 12 think you did actually. 13 A. 14 this is the button that was added to our audit trail screen. 15 Can you tell me what -- did you cover all those areas? So previously I talked about the OFAC dispute button. I So So audit trail is where all of the history of the various 16 transactions with consumers are recorded, and this explains 17 what happens when that button is selected. 18 Following that, the different reports that were created by 19 the CRS system so we could track -- 20 Q. The warehouse reports or what shows up on the analysis? 21 A. Correct. 22 Yes. MR. LUCKMAN: And if you could, Shoma, please go up to 23 where it says "Other" -- 24 A. 25 "Other Changes"? 793 BRIDDELL - DIRECT EXAMINATION / LUCKMAN 1 BY MR. LUCKMAN 2 Q. 3 that we highlighted? 4 Yes. If that could describe for the jury what those are (Document displayed) 5 A. 6 created a toll-free telephone number. 7 questions about the OFAC Name Screen Alert when they received 8 it, they could call that number to get that additional 9 information and get the procedures on what they needed to Yes. So some of the other changes that happened is we So if consumers had 10 submit to file a dispute. 11 Q. Is that the number you were talking about earlier, ma'am? 12 A. Yes. 13 Q. And what's this dedicated P.O. Box? 14 A. So we also set up a dedicated post office box for that 15 correspondence that we requested of the consumer. 16 didn't want it to get mixed in with the regular dispute volume 17 at the time. 18 Q. Okay. 19 A. So Special Handling is a department in Crum Lynne, where I 20 sit, and they handle things that are more of a sensitive or 21 escalated nature and things that we deem out of scope for our 22 other agents, for, like, our tier one agents. 23 Q. 24 people in Special Handling receive? 25 A. Because we And what is Special Handling Department? And do people -- what, if any, special training do the So Special Handling receives training, just like all the 794 BRIDDELL - DIRECT EXAMINATION / LUCKMAN 1 other agents, on disclosures, disputes, calls. 2 additional training. 3 longer than the regular Call Center agent because they deal 4 with these escalated types of situations. 5 But they get So their training is typically a little So they are training, for example, like with OFAC. Since 6 they are the ones that processed that, they would get training 7 in the OFAC dispute process or fraud processes and other 8 things. 9 Q. Okay. And I think we've seen three or four different 10 names of places: 11 Philadelphia. 12 TransUnion's office in Pennsylvania? 13 A. Crum Lynne, Pennsylvania. 14 Q. And where is Woodlyn, if you know? 15 A. Woodlyn is not even -- gosh, it's a stone's throw away. 16 Probably, like, maybe a mile, mile and a half. 17 to Crum Lynne. 18 Q. That's where the post office is? 19 A. Yes. 20 Q. And that's where the post office box is? 21 A. Yes, correct. 22 Q. And Chester is where in relation to Crum Lynne? 23 A. Chester is probably three miles, three or four miles. 24 Q. And the next -- 25 Woodlyn, Crum Lynne, Chester. You mentioned Where is Crum Lynne's office -- where is MR. LUCKMAN: It's right next Show them it says the "OFAC Procedures." 795 BRIDDELL - DIRECT EXAMINATION / LUCKMAN 1 Highlight that, please. 2 (Document displayed) 3 BY MR. LUCKMAN 4 Q. 5 procedures are and why they are put in place? 6 A. 7 Handling Department. 8 that they need to take once the consumer has received an OFAC 9 notification letter. If you could describe for the jury, ma'am, what these Yes. So the OFAC procedures are the ones for the Special So this is instructing them on the steps 10 And the bottom section also says once we've received the 11 documentation or if they refuse to send in the documentation, 12 because we have had situations where consumers did not want to 13 submit the documentation. 14 Q. What is the documentation? 15 A. So a valid U.S. government identification. 16 Q. Driver's license? 17 A. So driver's license, passport; something that shows their 18 full name and date of birth. 19 Q. 20 there is not an existing OFAC comment. 21 to do? 22 A. 23 inform the consumer that they are unable to confirm that they 24 have an OFAC hit. 25 credit report. And it looks like there is two choices here. One is if What are the associates So if there's not an existing OFAC comment, they have to And they will need to get a copy of their 796 BRIDDELL - DIRECT EXAMINATION / LUCKMAN 1 Q. And what does the next line say, ma'am? 2 A. On that same paragraph? 3 Q. The same paragraph. 4 A. If their name is on the OFAC list, they will receive a 5 letter within five to seven business days. 6 Q. 7 Handling or associates given regarding that line? 8 A. 9 they ask. Well, what, if any, training are the people in Special They are told to tell the consumer that information. If 10 Q. That's part of their training? 11 A. Yes. 12 Q. And FIN -- I believe FIN Comment has been discussed 13 previously, but could you describe for the jury what a FIN 14 Comment is? 15 A. 16 Number. 17 Identification Number is assigned to the consumer, and that's 18 their number that they can then reference in future 19 transactions with us so we can easily access their file. 20 So a FIN Comment -- FIN stands for File Identification So when consumers contact Consumer Relations, a File A FIN Comment is an internal comment within the system 21 that agents can leave or sometimes they are system generated 22 that provide additional information to the agents. 23 Q. 24 were -- what, if any, other things were created, like letters 25 or form letters? And in connection with the processing of OFAC disputes 797 BRIDDELL - DIRECT EXAMINATION / LUCKMAN 1 A. 2 were letters that were created for this process as well. 3 Q. 4 documents created for the associates? 5 A. 6 user guides, procedures. 7 Q. 8 book? 9 Yes. Okay. Yes. Okay. So, like, as referenced on the first page, there And in connection with the training, were there any We had to create training manuals and what we call Could you turn to Exhibit 88 in the -- the other (Brief pause.) 10 Q. I didn't mean for it to be such a chore. 11 A. Okay. 12 Q. Could you describe for the jury what that document is 13 please? 14 A. 15 created for the OFAC dispute process that was referenced in the 16 last bulletin we were talking about. 17 Q. Who prepared this? 18 A. This is my team. 19 as policy management and training. So this is our Special Handling User Guide that was This is part of my team's responsibility 20 MR. LUCKMAN: We move to admit Exhibit 89. 21 MR. FRANCIS: No objection. 22 THE COURT: 23 MR. LUCKMAN: 24 THE COURT: 25 MR. LUCKMAN: Is it 88 or 89? I said 89, but I meant 88. Okay. I don't know what 89 is. 798 BRIDDELL - DIRECT EXAMINATION / LUCKMAN 1 THE COURT: 2 All right. 88 admitted. (Trial Exhibit 88 received in evidence) 3 MR. LUCKMAN: 4 (Document displayed) Thank you. 5 BY MR. LUCKMAN 6 Q. Can you read the first line of 88 please? 7 A. (As read) 8 "The guidelines below outline the basic steps for 9 processing an OFAC dispute. Please keep in mind that each 10 consumer contact is unique and will not always follow this 11 exact path." 12 Q. 13 the associates that? 14 A. 15 guidelines and they should handle -- it should cover most 16 situations, but not all situations, because there could be 17 certain situations that they come across that they are going to 18 have to use their discretion. 19 Q. 20 Why are you telling -- why are you and your team telling Well, we always inform our agents that these are Okay. Thank you. Ma'am, to your knowledge, was a disclosure sent to 21 Mr. Ramirez? 22 A. Yes. 23 Q. And that was the disclosure we talked about earlier, a 24 letter, OFAC letter and a disclosure in two envelopes? 25 A. Correct. 799 BRIDDELL - DIRECT EXAMINATION / LUCKMAN 1 Q. Okay. 2 A. Yes. 3 Q. And what is the Bill of Rights in your -- in your words? 4 A. So the Bill of Rights are a summary of rights to consumers 5 which explains to them if they feel that something is 6 inaccurate in their report, what steps that they can take. 7 Q. 8 OFAC comment or OFAC screen? 9 A. Yes. 10 Q. Okay. 11 And was a Bill of Rights sent to Mr. Ramirez? And do you know whether Mr. Ramirez made a dispute of his I ask you to take a look at Exhibit 54. (Document displayed) 12 A. Okay. 13 Q. You can read it? 14 A. Yeah. 15 Q. Can you tell me Mr. Ramirez's address, please? 16 A. No. 17 Q. Can you tell me the name of the person that sent this 18 letter? 19 20 I can see it on the screen. MR. LUCKMAN: If you can make it a little smaller and see the whole thing? 21 (Document displayed) 22 BY MR. LUCKMAN 23 Q. Tell me the person's name who sent this? 24 A. Well, the -- 25 Q. By looking at it? Just by looking at it? 800 BRIDDELL - DIRECT EXAMINATION / LUCKMAN 1 A. No. 2 Q. Okay. 3 A. Correct. 4 Q. So how would a trained TransUnion associate know what to 5 do with this note? 6 A. 7 Number that I referenced earlier. 8 Q. That starts at 234? 9 A. Correct. 10 Q. And how does that help the associate? 11 A. They would be able to enter that number into the CRS 12 system and then pull up any activity that we have with this 13 consumer just based on the File Identification Number. 14 Q. 15 Relations and training, can you tell me how the Consumer 16 Relations associate actually responded to the letter? 17 they do here? 18 A. 19 the Consumer Relations System. 20 there was the supporting documentation received from the 21 consumer, which is that U.S. Government I.D. 22 provided, then they would click on that dispute OFAC button. 23 If not, they would send a letter to the consumer to request 24 that information. 25 Q. The signature is illegible. And there is no address, correct? The file number. So that's that File Identification So based on your experience of TransUnion's Consumer What do So in this case the associate would pull up the file in And you -- They would check to see if If that was 801 BRIDDELL - DIRECT EXAMINATION / LUCKMAN 1 A. That's the process. 2 Q. Are you aware of what happened in this circumstance? 3 the item deleted or not? 4 A. Yes. 5 Q. It was blocked? 6 A. Yes. 7 Q. Did TransUnion create a record of whether Mr. Ramirez was 8 notified that the record was blocked? 9 A. Yes. 10 Q. Okay. 11 12 The OFAC was removed. That's documented in our CRS system. If you could take a look Exhibit 61, please? We can't put it on the screen yet. to dig it up. 13 Was You're going to have Need help? (Witness complied) 14 A. Okay. 15 Q. Can you identify, ma'am, for the jury what is Exhibit 61? 16 A. This is a printout of our audit trail showing that a 17 letter was sent out on Tuesday, March 22nd, 2011. 18 OFAC Name Screen Alert removal notification letter. 19 Q. To Mr. Ramirez? 20 A. Yes. 21 Fremont, California. Sergio Ramirez, at that 36910 Bolina Terrace, 22 MR. LUCKMAN: 23 MS. BREWER: 24 THE COURT: 25 That was the Move to admit Exhibit 61. No objection. 61 admitted. (Trial Exhibit 61 received in evidence) 802 BRIDDELL - DIRECT EXAMINATION / LUCKMAN 1 Q. Can you tell me who is Melissa Teears? 2 A. So Melissa Teears works in our Special Handling 3 Department. 4 Q. Where? 5 A. In Crum Lynne, Pennsylvania, where I am located. 6 know Melissa. 7 Q. Okay. 8 Thank you. MR. LUCKMAN: 9 Yeah, I You can take that off. Thanks. (Document removed from display.) 10 BY MR. LUCKMAN 11 Q. 12 oversees consumer reporting agencies such as TransUnion? 13 A. 14 now it's the Consumer Financial Protection Bureau, also known 15 as CFPB. 16 Q. 17 it? 18 A. Yes. 19 Q. To your knowledge, since May of 2010 has the FTC or the 20 CFPB ever complained about or cited TransUnion in connection 21 with the OFAC disclosure or dispute compliance procedures? 22 A. Not to my knowledge. 23 Q. Would you know if it happened? 24 A. Yes. 25 Q. Why is that? Ma'am, are you aware of which federal regulatory agency Yes. Previously it was the Federal Trade Commission, but I was going to ask you that. CFPB, that's what they call 803 BRIDDELL - CROSS EXAMINATION / BREWER 1 A. 2 Center Services. 3 policies, procedures and training, if there was a mandate that 4 came down from our regulatory agency, I would be involved. 5 Q. That would be your job? 6 A. Yes. Based on my role in Consumer Relations, a/k/a Contact Since I'm responsible for implementing 7 MR. LUCKMAN: No further questions, ma'am. 8 THE WITNESS: Okay. 9 MR. LUCKMAN: But you have stay there. 10 THE COURT: All right. 11 we will take our morning break. 12 MR. LUCKMAN: 13 THE COURT: 14 15 Thank you. But I think what we'll do is All right? Okay. So we will take our 20-minute break. Ladies and gentlemen, please, as always -- we're getting close, but please do not discuss the case. 16 Thank you. 17 (Whereupon there was a recess in the proceedings 18 from 9:57 a.m. until 10:18 a.m.) 19 THE COURT: 20 Thank you, ladies and gentlemen. Ms. Brewer. 21 MS. BREWER: 22 Thank you, your Honor. CROSS EXAMINATION 23 BY MS. BREWER 24 Q. 25 for the plaintiff and the class in this case. Ms. Briddell, I'm Carol Brewer. I'm one of the attorneys 804 BRIDDELL - CROSS EXAMINATION / BREWER 1 You've testified about TransUnion's OFAC dispute process 2 and training over a number of years, and that's part of your 3 area of expertise, right? 4 A. Correct. 5 Q. And you testified about the number of people who disputed 6 OFAC information over a several-year period, right? 7 A. Correct. 8 Q. When did TransUnion first start disclosing OFAC alerts to 9 consumers? 10 A. 2011. 11 Q. And that was January 2011? 12 A. Yes. 13 Q. And when did it start disclosing OFAC alert information to 14 consumers who -- who got their information online as opposed to 15 in print? 16 MR. LUCKMAN: 17 THE COURT: Objection, relevance. Overruled. 18 A. 19 BY MS. BREWER 20 Q. It wasn't January 2011, though, was it? 21 A. I don't believe so. 22 Q. Was it more like September 2011? 23 A. Possibly. 24 Q. Now, the number of people who have disputed information 25 between January 2011 and -- the number -- I'm sorry. I'm not exactly sure. I don't recall exactly. I think it was a few months later. 805 BRIDDELL - CROSS EXAMINATION / BREWER 1 The number of people who got an OFAC alert between 2 January 2011 and July 2011 are the people who make up this 3 class, is that your understanding? 4 A. Correct. 5 Q. And all of those people got their consumer disclosure in 6 print, in hard copy, right? 7 A. To my understanding, yes. 8 Q. And you didn't testify about the number of people who were 9 an OFAC hit, but who looked at their consumer disclosure 10 online, right? 11 A. I'm not sure of the question. 12 Q. Okay. 13 people who were OFAC hits. 14 potential matches to people on the OFAC list, right? 15 A. Yes. 16 Q. And then they disputed saying: 17 the OFAC list, so please take my name off the OFAC list, right? 18 A. Correct. 19 Q. Okay. 20 were all people who got their disclosure in print? 21 words, not online, right? 22 A. Correct. 23 Q. Okay. 24 25 You had testified earlier about the number of TransUnion, I'm not -- on But you -- those people that you testified about MS. BREWER: Exhibit 10. In other words, their names were In other I would like to pull up, please, And I'd like to direct your attention to Page 5 of 806 BRIDDELL - CROSS EXAMINATION / BREWER 1 Exhibit 10. 2 3 If you could blow that up just a little bit? There you go. 4 (Document displayed) 5 BY MS. BREWER 6 Q. 7 "Disclosure Web Service"? 8 A. Yes, I could see that. 9 Q. Okay. You see where it says "CRS Mailed Disclosures" and then So it has month-by-month. For example, in 10 February 2011, when Mr. Ramirez had his disclosure mailed, 11 there were 1,723 hits. 12 A. Yes. 13 Q. But in the same month it shows that in February of 2011 14 there were 3,599 OFAC hits online. 15 A. 16 their report online. 17 Q. 18 mailed disclosures, but 3,228 hits on the web, right? 19 A. Correct. 20 Q. But TransUnion was not providing any of its customers who 21 got their disclosure on the web any information about OFAC, 22 correct, in either February 2011 or July 2011? 23 A. 24 receive the letter, regardless if it was mailed or online. 25 Q. Yes. Okay. Do you see that? Via our web service. Is that right? So that means they requested And in July 2011 it shows there are 1,577 hits in If the consumer was a hit to the OFAC list, they would Your testimony is that they -- that all the people who 807 BRIDDELL - CROSS EXAMINATION / BREWER 1 received an OFAC hit online also received a letter? 2 A. Correct. 3 Q. Okay. And is that letter the same form as Exhibit 3? 4 MS. BREWER: 5 (Document displayed) If you could bring that up, please, Ken? 6 BY MS. BREWER 7 Q. If you could look at Exhibit 3? 8 A. Correct. 9 Q. And this is the letter that says that people are a This is the OFAC alert letter. 10 potential match to the OFAC list, right? 11 A. Yes. 12 Q. And you had testified earlier that this is how customers 13 can request to get their name off, right? 14 A. 15 the bottom that's where they are provided with the contact 16 number so they know to call us if they have questions and would 17 like to dispute it. 18 Q. 19 part of a consumer disclosure, right? 20 A. No. 21 Q. And the letter doesn't say that consumers have a right to 22 dispute the OFAC information, right? 23 A. 24 them that in their Bill of Rights. 25 Q. This letter is telling them what the OFAC is. And then at But that letter doesn't say that the OFAC information is The letter does not say that. But the consumer receives the Bill of Rights and it tells But the Bill of Rights is not contained in the letter, 808 BRIDDELL - CROSS EXAMINATION / BREWER 1 correct? 2 A. 3 received by the consumer. 4 Q. 5 mailing, isn't that right? Not in this letter. Not in the same envelope, but it is It's received by the consumer in an entirely separate 6 MR. LUCKMAN: 7 THE COURT: 8 A. 9 BY MS. BREWER Objection, your Honor, argumentative. Overruled. Correct. 10 Q. 11 instructions about how to dispute the information, correct? 12 A. 13 additional questions or concerns, where to contact us at. 14 Q. 15 can contact a number. 16 they have a right to dispute the OFAC hit, correct? 17 A. Not specifically in that paragraph, no. 18 Q. You suggested that the number of disputes about OFAC 19 declined after July 2011, is that fair? 20 A. Correct. 21 Q. And why would you say that the number declined? 22 A. Because it was not in a separate letter anymore. 23 was all together as part of the disclosure. 24 together, not separate. 25 Q. And that letter doesn't have -- Exhibit 3 doesn't have any Well, it does instruct the consumer, if they have Yes. It does say: If you have questions or concerns, you But it doesn't tell the consumer that Now it It was all But you didn't testify about the format of the disclosure 809 BRIDDELL - CROSS EXAMINATION / BREWER 1 that TransUnion was sending consumers after July 2011, correct? 2 A. Correct. 3 Q. And TransUnion continued to have problems after July 2011 4 with its OFAC disclosure, correct? 5 MR. LUCKMAN: 6 THE COURT: 7 A. 8 BY MS. BREWER 9 Q. 10 It's vague. Well, if she can answer, she can. What do you mean by "problems"? You had complaints about TransUnion's disclosures not being in compliance with the Fair Credit Reporting Act. 11 12 Objection, your Honor. MR. LUCKMAN: Objection, your Honor. It's confusing and vague. 13 THE COURT: Overruled. She can answer, if she can. 14 A. 15 BY MS. BREWER 16 Q. 17 credit disclosures that it was sending to consumers that gave 18 the OFAC information, the information was contained in a 19 document that was only inserted after the language "end of 20 credit report," isn't that correct? I'm not sure. Specifically, TransUnion was receiving complaints that the 21 MR. LUCKMAN: 22 THE COURT: Objection, your Honor. Overruled. 23 A. 24 prior to that we were not. 25 She can answer, if she can. So we did in 2011 start disclosing the information, but 810 BRIDDELL - CROSS EXAMINATION / BREWER 1 BY MS. BREWER 2 Q. Okay. 3 A. Is that what your question was? 4 Q. No. 5 reason that the -- the dispute rate went down after July 2011 6 was because TransUnion was able to get the OFAC alert in the 7 same document as the consumer disclosure, is that right? 8 A. Yes, that's correct. 9 Q. And that's -- you're saying -- TransUnion is saying that's What I'm saying is that you have suggested that the 10 the reason. 11 because TransUnion put the OFAC information in the consumer 12 disclosure at the very end of the consumer report after it said 13 "end of consumer report," where the information would be 14 buried? And I'm suggesting that an additional reason was 15 MR. LUCKMAN: 16 THE COURT: 17 MR. LUCKMAN: 18 THE COURT: Objection, your Honor, argumentative. Overruled. It's testifying. Overruled. 19 A. 20 additional information that's not the traditional credit 21 information. 22 or inquiring information. 23 The "Additional Information" section has information -- So it's not a typical trade line, public record So "Other Additional Information," that's the section we 24 would put any of the other types of information not specific to 25 the traditional credit data. 811 BRIDDELL - CROSS EXAMINATION / BREWER 1 BY MS. BREWER 2 Q. 3 information in a different place other than in the consumer 4 disclosure? 5 A. 6 in the same section as the trade lines and the public records 7 because we felt that would be confusing to the consumer. 8 Q. 9 subscribers, it puts that OFAC information right up front, 10 So your testimony is that TransUnion inserted that OFAC No. It's part of the consumer disclosure. Okay. Well, when TransUnion sends credit reports to its correct? 11 MR. LUCKMAN: 12 THE COURT: 13 A. 14 report. MS. BREWER: Overruled. Mr. Reeser, could you put up Exhibit 1, please? 17 18 Objection, your Honor, foundation. I'm not exactly sure where it falls on the customer 15 16 It's just not If you could blow up the top two sections? I don't know if that's possible. 19 (Document displayed) 20 BY MS. BREWER 21 Q. 22 TransUnion, is that right? 23 A. Correct. 24 Q. And the very top section is his identifying information? 25 A. Correct. Ms. Briddell, this is Sergio Ramirez's credit report from 812 BRIDDELL - CROSS EXAMINATION / BREWER 1 Q. And the very next section is the OFAC alert? 2 A. Correct. 3 Q. Okay. 4 its OFAC disclosures to its subscribers right up front? The "Special Messages" section. So would you agree with me that TransUnion does put 5 MR. LUCKMAN: 6 THE COURT: 7 A. 8 BY MS. BREWER 9 Q. Yes. Objection, your Honor, foundation. Overruled. So "Special Messages" are up front. Ms. Briddell, is it TransUnion's contention that 10 TransUnion was able to accurately get OFAC alerts into file 11 disclosures after July 2011? 12 MR. LUCKMAN: Objection, your Honor. 13 A. 14 BY MS. BREWER 15 Q. 16 file disclosures into consumer reports? 17 That I can't answer. You don't know whether they were accurately able to get THE COURT: I guess I don't quite understand the 18 question. 19 BY MS. BREWER 20 Q. 21 got these letters from January to July -- The OFAC alert -- well, the class consists of people who 22 MR. LUCKMAN: 23 THE COURT: 24 25 testimony. Your Honor -- It seems beyond the scope of her And she's not a 30(b)6, correct. MS. BREWER: She testified about -- 813 BRIDDELL - CROSS EXAMINATION / BREWER 1 2 MR. LUCKMAN: Your Honor, may we have a side bar instead of sharing whatever this argument is? 3 THE COURT: Just lay a foundation. Why don't you just 4 lay a foundation? 5 BY MS. BREWER 6 Q. 7 lists at -- all through 2011 and into 2012, right? 8 A. 9 disputes. You testified about the disputes by people who got OFAC Correct. The volumes, uh-huh, of disputes. The OFAC 10 Q. 11 volume of disputes went down is because TransUnion was sending 12 the OFAC disputes in the same letter with -- was including the 13 OFAC alert in the consumer disclosure, right? And it's TransUnion's contention that the reason the 14 MR. LUCKMAN: 15 THE COURT: 16 of that. 17 contention. 18 19 Objection, your Honor. Sustained. There certainly was evidence I don't know that she testified that was their I believe it was. MS. BREWER: I believe it was her contention, but -- 20 MR. LUCKMAN: 21 THE COURT: Your Honor. The jury, as I have instructed you at the 22 beginning, attorney argument or statements are not evidence. 23 You decide the case based solely on the evidence in the case. 24 25 All right. You may move on, Ms. Brewer. 814 BRIDDELL - CROSS EXAMINATION / BREWER 1 BY MS. BREWER 2 Q. 3 disclosing OFAC communications to online consumers, is that 4 correct? 5 A. Correct. 6 Q. Is it -- is it TransUnion's contention that the -- that it 7 was accurately sending OFAC alerts to consumers after 8 July 2011? 9 And you were not certain about when TransUnion began I don't remember the exact time frame. MR. LUCKMAN: 10 THE COURT: 11 MS. BREWER: Your Honor -- Sustained. Okay. 12 One second. 13 (Discussion held off the record between plaintiff's 14 counsel.) 15 BY MS. BREWER 16 Q. 17 Exhibit -- I believe it's 68, that you testified about earlier. Ms. Briddell, I wanted to turn your attention to 18 MR. LUCKMAN: 19 MS. BREWER: 20 Did you say 68? I don't think we've -- I may have gotten it wrong. I'm sorry. 21 And can you blow up the top, please, Ken? 22 (Document displayed) 23 BY MS. BREWER 24 Q. 25 Exhibit 69. It's really, really hard to read, but there seems to be -MS. BREWER: Can you possibly blow it up so we can see 815 BRIDDELL - CROSS EXAMINATION / BREWER 1 the dispute statistics in September and October of 2011? 2 (Document displayed) 3 MS. BREWER: 4 This is 2012. We're looking for 2011. I think it's the first page. 5 (Document displayed) 6 BY MS. BREWER 7 Q. 8 disputes? 9 A. From which month? 10 Q. October of 2011. 11 A. October. 12 disputes. 13 Q. 14 in the number of disputes for October of 2011. 15 A. Yes. 16 Q. Why did that happen? 17 A. Honestly, I don't recollect why there was a sharp increase 18 because then it dropped right back down. 19 sure. 20 Q. 21 disclosures? Can you tell which of the columns is the number of I know the information is over here. Right. For October 2011, it looks like 59 OFAC Okay. So they -- this seems to be a sharp uptick 23 said she didn't know. THE COURT: A. I'm sorry. I'm not Was it because of the format of TransUnion's OFAC MR. LUCKMAN: 25 Is that right? The number did go up. 22 24 You said September. Objection, your Honor, foundation. Overruled. That could be possible. She 816 PROCEEDINGS 1 MS. BREWER: Thank you. 2 THE COURT: Mr. Luckman? 3 MR. LUCKMAN: 4 you, Mrs. Briddell. 5 THE COURT: 6 THE WITNESS: No further questions, your Honor. Thank you. (Witness excused.) 8 THE COURT: 10 11 MR. NEWMAN: 13 MR. NEWMAN: MR. NEWMAN: 16 THE COURT: 19 Can you give me just a few minutes to I will give you 30 seconds. 30 seconds. (Discussion held off the record between defense counsel.) 15 18 Does defendant have another consult with Mr. Luckman? THE COURT: 17 All right. witness? 12 14 You are excused. Thank you. 7 9 Thank All right. Your Honor, we rest. Okay. Ladies and gentlemen, that, I believe, concludes the evidence in the case. So what we are going to do then is we are going to take a 20 brief adjournment, and then we are going to proceed and I'm 21 going to instruct you. 22 and then the lawyers will give their closing arguments. 23 probably won't finish them before lunch. 24 25 I'll give you some of the instructions We Well, actually, what I want to do is I want to confer with the lawyers now about scheduling, but you are going to get the 817 PROCEEDINGS 1 case today. 2 decide how long you want to stay today to deliberate, depending 3 on how long the arguments take. 4 with them a bit. 5 now and then we'll resume. All right. And then it will be up to you to That's what I need to check So we will take about a 10-minute break right 6 Thank you. 7 (Jury exits the courtroom at 10:40 a.m.) 8 THE COURT: All right. 9 closing, give or take? 10 MR. SOUMILAS: 11 Mr. Soumilas, how long is your Give or take, I need an hour. need another 15 to 20 minutes for rebuttal. 12 THE COURT: 13 MR. NEWMAN: Okay. Your Honor, before I forget, we do renew 14 our motion for judgment as a matter of law or in the 15 alternative to decertify the class. 16 THE COURT: 17 MR. NEWMAN: 18 Okay. your Honor. THE COURT: 20 MR. SOUMILAS: All right. THE COURT: 23 MR. SOUMILAS: 25 Great. So let's do -- Your Honor, may I ask you a question, too? 22 24 Both are noted and overruled. I have about 45 minutes for my closing, 19 21 And I Yes. Does the jury get your charge in written form? THE COURT: They do. 818 PROCEEDINGS 1 MR. SOUMILAS: 2 THE COURT: 3 4 5 6 Is it okay if I say that? Sure. I mean, I'm going to say that to them actually, so you can say it. MR. SOUMILAS: And they get all the exhibits except the class list, correct, your Honor? THE COURT: They get all the exhibits that were 7 admitted into evidence, except the parties have agreed they 8 will not get the class list. 9 MR. SOUMILAS: So that's correct. But we would like 10 just some one-line instruction as to why they are not getting 11 the class list so they don't think that there is something 12 funny going on. 13 going to say, but I think we want to explain why they are not 14 getting that one exhibit. 15 something the matter with it. 16 MR. NEWMAN: If we would say -- I don't know what we are I don't want them to think there is I think it would be appropriate to say 17 that the reason they are not getting the full class list is 18 because it contains personal information. 19 THE COURT: Right. So what I usually do is I give all 20 the substantive objections and then you do your closings. 21 then I give them starting with instruction 22, Duty to 22 Deliberate, Use of Notes and Communication With the Court, and 23 Return of Verdict. And 24 When I give the Duty to Deliberate, I will tell them again 25 that they will get the exhibits and instructions, but they will 819 PROCEEDINGS 1 not get -- it's Exhibit 8-B, is that it? 2 3 It's Exhibit B to the interrogatory MR. NEWMAN: that's inside Exhibit -- 4 MR. FRANCIS: 5 THE COURT: 6 8-B, right, your Honor. That they will not be getting that and only because it contains personal identifying information. 7 MR. SOUMILAS: 8 THE COURT: 9 MR. SOUMILAS: 10 make sure we do this properly. We're fine with that, your Honor. So that will be after your closing. And one final item. I just want to 11 Assuming the jury returns a verdict for the class, I'll 12 have an opportunity after that to admit a couple more things 13 into evidence, or do I need to do it -- 14 THE COURT: 15 MR. SOUMILAS: 16 THE COURT: 17 while they are deliberating. With respect to -- Yes. 18 MR. SOUMILAS: 19 THE COURT: 20 23 And a lot of that we can address Thank you. We can address that phase in case it's needed while they are deliberating. 21 22 Punitive damages. MR. SOUMILAS: Okay. So let's see. If we were to begin -MR. LUCKMAN: Your Honor, because I don't understand 24 the potential use of the -- my closing statement in the Cortez 25 case in 2007, I would want to address that before arguments. I 820 PROCEEDINGS 1 have no clue -- 2 THE COURT: 3 MR. LUCKMAN: 4 Before the punitive damages arguments? I don't understand how it could be used at all. 5 THE COURT: They were only seeking to admit it for 6 punitive damages, which is why I said we can address it during 7 deliberations. 8 9 MR. NEWMAN: So, your Honor, is going to charge the jury now? 10 THE COURT: 11 MR. NEWMAN: 12 THE COURT: Yes. And then we will -I think we will do plaintiff's opening. 13 Then we will take -- well, I mean, we could be sort of be done 14 by 1:30 and let the jury decide what they want to do. 15 could do take our lunch break, do defendant's and rebuttal. 16 17 MR. SOUMILAS: THE COURT: 19 MR. SOUMILAS: 20 THE COURT: 21 minutes. 22 by 12:00. 24 25 So how long are your Honor's opening instructions? 18 23 Or, we You know, they are short. Ten minutes? They are not very long. You will be able to start at 11:00. Ten to 15 You will be done We would then take a 45-minute lunch break. MR. SOUMILAS: lunch break. That would be my preference. Take a Then you close, rebuttal and then we give it to 821 JURY INSTRUCTIONS 1 the jury. 2 3 THE COURT: They were planning on staying until at least 3:00 today anyway. 4 MR. SOUMILAS: 5 break before we start up again? 6 7 THE COURT: You may. MR. SOUMILAS: 9 MR. NEWMAN: 11 Sounds good. Thank you, your Honor. (Whereupon there was a recess in the proceedings from 10:44 a.m. until 10:54 a.m.) 12 13 I need to go get the instructions. 8 10 Could I have just a two-minute bathroom THE COURT: All right. Thank you, ladies and gentlemen. 14 JURY INSTRUCTIONS 15 THE COURT: Now that you have heard all the evidence 16 in the case it is my duty to instruct you on the law that 17 applies to this case. 18 available in the jury room for you to consult if you find it 19 necessary. 20 A copy of these instructions will be It is your duty to find the facts from all the evidence in 21 this case. To those facts you will apply the law as I give it 22 to you. 23 you agree with it or not, and you must not be influenced by any 24 personal likes or dislikes, opinions, prejudices, or sympathy. 25 That means you just decide the case solely on the evidence You must follow the law as I give it to you whether 822 JURY INSTRUCTIONS 1 before you. 2 the beginning of the case. 3 You will recall that you took an oath to do so at In following my instructions you must follow all of them 4 and not single out some and ignore others. 5 equally important. 6 instructions or anything that I may say or do or have said or 7 done that I have an opinion regarding the evidence or what your 8 verdict should be. 9 10 They are all And, please, do not read into these The evidence that you are to consider in deciding what the fact are consists of: 11 The sworn testimony of any witness. 12 The exhibits that have been admitted into evidence. 13 Any facts to which the lawyers have agreed and any facts 14 15 that I have instructed you to accept as true. In reaching your verdict you may consider only the 16 testimony and exhibits received into evidence. 17 are not evidence and you may not consider them in deciding what 18 the facts are. 19 Certain things I will again list them for you here. Arguments and statements by lawyers are not evidence. The 20 lawyers are not witnesses. 21 opening statements, will say in their closing arguments, and at 22 other times have said is intended to help you interpret the 23 evidence, but is not evidence. 24 them differ from the way lawyers have stated them, your memory 25 of them controls. What they have said in their If the facts as you remember 823 JURY INSTRUCTIONS 1 Questions and objections by lawyers are not evidence. 2 Attorneys have a duty to their clients to object when they 3 believe a question is improper under the Rules of Evidence. 4 You should not be influenced by the objection or by the Court's 5 ruling on it. 6 Testimony that is excluded or stricken or that you have 7 been instructed to disregard is not evidence and must not be 8 considered. 9 Anything you may have seen or heard when the court was not 10 in session is not evidence. 11 on the evidence received at the trial here in the courtroom. 12 You are to decide the case solely Now, if you recall, received may be direct or 13 circumstantial. 14 such as testimony by a witness about what that witness 15 personally saw or heard or did. 16 proof of one or more facts from which you can find another 17 fact. 18 makes no distinction between the weight to be given to either 19 direct or circumstantial evidence. 20 much weight to give to any evidence. Direct evidence is direct proof of a fact, Circumstantial evidence is You should consider both kinds of evidence. The law It is for you to decide how 21 By way of example, if you wake up in the morning and see 22 that the sidewalk is wet, you may find from that fact that it 23 rained during the night. 24 turned on garden hose, may provide a different explanation for 25 the presence of water on the sidewalk. However, other evidence, such as a Therefore, before you 824 JURY INSTRUCTIONS 1 have decide that a fact has been proven by circumstantial 2 evidence, you must consider all the evidence in the light of 3 reason, experience, and common sense. 4 There are Rules of Evidence that control what can be 5 received into evidence. 6 offered an exhibit into evidence and the lawyer on the other 7 side thought that it is not permitted by the Rules of Evidence, 8 that lawyer may have objected. 9 the question was answered or the exhibit received. When a lawyer asked a question or If I overruled the objection, If I 10 sustained the objection, the question could not be answered and 11 the exhibit could not be received. 12 objection to a question, you must ignore the question and must 13 not guess what the answer might have been. 14 Whenever I sustained an From time to time during the trial it became necessary for 15 me to talk with the attorneys out of the hearing of the jury, 16 either by having a conference at the bench when the jury was 17 present in the courtroom or by calling a recess. 18 understand that while you were waiting, we were working. 19 the purposes of these conferences not to keep relevant 20 information from you, but to decide how certain evidence is to 21 be treated under the Rules of Evidence and to avoid confusion 22 and error. 23 Please And Of course, we have done what we could to keep the number 24 and length of these conferences to a minimum. I did not always 25 grant an attorney's request for a conference. Do not consider 825 JURY INSTRUCTIONS 1 my granting or denying a request for a conference as any 2 indication of my opinion of the case or what your verdict 3 should be. 4 The parties have agreed to certain facts which were read 5 to you. 6 proved. 7 You must therefore treat these facts as having been A deposition is the sworn testimony of a witness taken 8 before trial. 9 truth and lawyers for each party may ask questions. The witness is placed under oath to tell the The 10 questions and answers are recorded. 11 unavailable to testify at trial, the deposition of that person 12 may be used at the trial. 13 individuals were used at trial: 14 Robert Lytle, and Bharat Acharya. When a person is The depositions of the following Annette Coito, Brent Newman, 15 Insofar as possible, you should consider deposition 16 testimony presented to you in court in lieu of live testimony 17 in the same way as if the witness had been present to testify. 18 If the testimony was read into the record, as it was by -- for 19 Ms. Coito, do not place any significance on the behavior or 20 tone of voice of any person reading the questions or answers. 21 And I believe Mr. Acharya, as well, was also read to you. 22 Evidence was presented to you in the form of answers of 23 one of the parties to written interrogatories submitted by the 24 other side. 25 before the trial in response to questions that were submitted These answers were given in writing and under oath 826 JURY INSTRUCTIONS 1 under established court procedures. 2 answers insofar as possible in the same way as if they were 3 made from the witness stand. 4 You should consider the In deciding the facts in this case, you may have to decide 5 which testimony to believe and which testimony not to believe. 6 You may believe everything a witness says, or a part of it, or 7 none of it. 8 9 10 In considering the testimony of any witness you may take into account: The opportunity and ability of the witness to see or hear 11 or know the things testified to. 12 The witness's memory. 13 The witness's manner while testifying. 14 The witness's interest in the outcome of the case, if any. 15 The witness's bias or prejudice, if any. 16 Whether other evidence contradicted the witness's 17 18 19 testimony. The reasonableness of the witness's testimony in light of all the evidence. 20 And any other factors that bear on believability. 21 Sometimes a witness may say something that is not 22 consistent with something else he or she said. 23 different witnesses will give different versions of what 24 happened. 25 they remember. Sometimes People often forget things or make mistakes in what Also, two people may see the same event but 827 JURY INSTRUCTIONS 1 remember it differently. 2 but do not decide that testimony is untrue just because it 3 differs from other testimony. 4 You may consider these differences, However, if you decide that a witness has deliberately 5 testified untruthfully about something important, you may 6 choose not to believe anything that witness said. 7 hand, if you think the witness testified untruthfully about 8 some things but told the truth about others, you may accept the 9 part you think is true and ignore the rest. On the other 10 The weight of the evidence as to a fact does not 11 necessarily depend on the number of witnesses who testify. 12 What is important is how believable the witnesses were and how 13 much weight you think their testimony deserves. 14 Experts may give opinions on those subjects in which they 15 have special skills, knowledge, experience, training or 16 education. 17 and give it whatever weight it deserves. 18 all the facts. 19 expert relied on certain facts and you decide that any of those 20 facts were not true, then you are free to disregard the 21 opinion. 22 You should consider each expert opinion in evidence Remember, you decide If, in reaching an opinion, you find that an The law allows expert witnesses to be asked questions that 23 are based on assumed facts. 24 hypothetical questions. 25 the expert's opinion that is based on the assumed facts, you These are sometimes called In determining the weight to give to 828 JURY INSTRUCTIONS 1 2 should consider whether the assumed facts are true. As I told you at the beginning of this case, this lawsuit 3 is proceeding as a class action. 4 that has been brought by one or more plaintiffs on behalf of 5 the larger group of people who have similar legal claims. 6 of these people together are called a class. 7 representative who brings this action is Sergio Ramirez. 8 9 The class action is a lawsuit The class In a class action the claims of many individuals can be resolved at the same time instead of requiring each member to 10 sue separately. 11 on behalf of a class of 8,185 people. 12 All Here Mr. Ramirez is suing defendant TransUnion If you find it appropriate, you may apply the evidence at 13 this trial to all class members. 14 be bound by the result of this trial. 15 is proceeding as a class action does not mean any decision has 16 been made about what your verdict should be. 17 All members of the class will The fact that this case The class in this case consists of all natural persons in 18 the United States and its territories to whom TransUnion sent a 19 letter similar in form to the March 1st, 2011 TransUnion sent 20 to plaintiff regarding OFAC, Office of Foreign Assets Control, 21 database from January 1, 2011 through January 26, 2011. 22 Your verdict in this case, whatever it may be -- 23 MR. NEWMAN: 24 THE COURT: 25 July 26, 2011. Your Honor, it should be July. Thank you. January 1, 2011 through 829 JURY INSTRUCTIONS 1 Your verdict in this case, whatever it may be, must be the 2 same for every class member, because I've already found that 3 the important issues in the case are common to all class 4 members. 5 The Fair Credit Reporting Act, otherwise known as the 6 FCRA, requires that consumer reporting agencies adopt 7 reasonable procedures for meeting the needs of commerce for 8 consumer credit personnel, insurance and other information in a 9 manner which is fair and equitable to the consumer with regard 10 to the confidentiality, accuracy, relevancy, and proper 11 utilization of such information. 12 TransUnion's reporting of OFAC information such as the OFAC 13 alerts at issue in this case. 14 The FCRA regulates Plaintiff, Sergio L. Ramirez, and the members of the 15 certified class are consumers as defined in the FCRA. 16 Defendant TransUnion, LLC is a consumer reporting agency as 17 defined in the FCRA. 18 Mr. Ramirez and the class bring three claims against 19 TransUnion under the FCRA. 20 Section 1681e(b); a claim under 15 U.S.C. Section 1681g(a); and 21 a claim under 15 U.S.C. Section 1681g(c)(2)(A). 22 describe each of these to you. 23 A claim under 15 U.S.C. I will now First, the 15 U.S.C. Section 1681e(b) claim. The FCRA 24 requires that when any consumer reporting agency prepares a 25 report, it must, quote: 830 JURY INSTRUCTIONS 1 "Follow reasonable procedures to ensure maximum 2 possible accuracy of the information concerning the 3 individual about whom the agency report relates." 4 To find for Mr. Ramirez and the class on their first 5 claim, you must find that TransUnion willfully violated this 6 provision. 7 8 9 The second claim, 15 U.S.C. 1681g(a), the FCRA also requires that: "When any consumer requests his or her file from a 10 consumer reporting agency, such as TransUnion, the agency 11 shall clearly and accurately disclose to the consumer all 12 information in the consumer's file at the time of the 13 request." 14 To find for Mr. Ramirez and the class on their second 15 claim, you must find that TransUnion willfully violated this 16 provision. 17 18 19 Third claim, 15 U.S.C. Section 1681g(c)(2)(A), the FCRA also requires that: "With each written disclosure a consumer reporting 20 agency, such as TransUnion, must provide to the consumer a 21 summary of rights identified by the Federal Trade 22 commission." 23 To find for Mr. Ramirez and the class on their third 24 claim, you must find that TransUnion willfully violated this 25 provision. 831 JURY INSTRUCTIONS 1 An act is done willfully if it is done knowing that it 2 will violate the Fair Credit Reporting Act or with a reckless 3 disregard of a statutory duty under the Fair Credit Reporting 4 Act. 5 "Reckless disregard" means an action entailing an 6 unjustifiably high risk of harm that is either known or so 7 obvious that it should be known. 8 does not recklessly violate the Act when it acts in accord with 9 an objectively reasonable interpretation of the Act. 10 A consumer reporting agency Mr. Ramirez and the class have the burden of proving their 11 claims, including that one or more violations of the FCRA was 12 willful by a preponderance of the evidence. 13 the greater weight of the evidence. 14 A preponderance is To say it differently, if you were to put the evidence 15 favorable to Mr. Ramirez and the class and the evidence 16 favorable to TransUnion on opposite sides of the scales, 17 Mr. Ramirez and the class would have to make the scales tip 18 somewhat on their side. 19 verdict must be for TransUnion. 20 If they fail to meet this burden, the If you find after considering all the evidence that any 21 claim or fact is more likely so than not so, then that claim or 22 fact has been proved by a preponderance of the evidence. 23 the evidence on that claim appears to be equally balanced or if 24 you cannot say upon which side it weighs more heavily, then you 25 must find in favor of the defendant on that claim. If You should 832 CLOSING ARGUMENT / SOUMILAS 1 base your decision on all of the evidence regardless of which 2 party presented it. 3 If you find that TransUnion willfully violated the FCRA 4 with respect to any of the three claims brought by Mr. Ramirez 5 and the class here, then you must award each member of the 6 class statutory damages of no less than $100 and no more than 7 $1,000. 8 and circumstances of this case. It is up to you to set the amount based upon the facts 9 And I have a few more instructions for you after the 10 closing arguments, but we will now begin with the plaintiff's 11 closing argument. 12 CLOSING ARGUMENT 13 MR. SOUMILAS: 14 gentlemen of the jury. 15 Your Honor, thank you. Ladies and The evidence is in and the case will soon be in your 16 hands. 17 to decide who wins and who loses. 18 trial where I get to argue why my client, Mr. Ramirez, and the 19 class should win. 20 What that means in plain English is that you're going This is the part of the And I'm going to do my best in a moment. But first I want to thank you for your service. We know 21 that your time is valuable and that you have other places to be 22 and other things to do. 23 your service. 24 25 Everyone in this courtroom appreciates Also, I wish to thank Judge Corley and her staff, because we know that jury trials are taxing on everyone. 833 CLOSING ARGUMENT / SOUMILAS 1 Now, as you heard at the beginning of the case, this is a 2 civil dispute. 3 have heard on TV about proving a case beyond a reasonable doubt 4 doesn't apply here. 5 most important thing I could say about civil cases is that 6 there they are decided -- civil cases, I should say, have two 7 components to them, before I get to the standard. 8 It's not a criminal case. And what you may Put that out of your mind. The components are my first thought. The single They are both 9 liability and damages. So they are different from criminal 10 cases in that respect. Liability is a question of was the 11 civil law violated, and damages are what happens when the law 12 is violated. 13 this case. 14 is the preponderance of the evidence, as the Court just 15 instructed you. 16 You get to decide both liability and damages in And the standard by which you do it in a civil case Now, preponderance of evidence just simply means the 17 greater weight of the evidence. 18 Justice with a sword in one hand, blindfolded because she's 19 impartial, and scales in the other, we're focusing on those 20 scales in her left hand. 21 of the evidence presented to you in any manner and considering 22 whether Mr. Ramirez and the class have slightly weightier 23 evidence to tip the balance on their side, or TransUnion has 24 slightly weightier. 25 evidence, so little evidence, wins this case. So if you think of Lady And you're considering all the weight And whoever has a little bit more 834 CLOSING ARGUMENT / SOUMILAS 1 You may think of preponderance also as an election bar 2 chart. 3 And if you think of the weight of the evidence as 100 percent, 4 you decide a civil case, the weight of the evidence, assuming 5 the total is 100 percent, is established by 51 percent by one 6 side. 7 established at least 51 percent of the weight of the evidence 8 is on our side, and we think a lot more than that. 9 We see this on TV all the time when results come in. And we think in this case, ladies and gentlemen, we've Now, what will it mean to decide this case? And it's a 10 very, very specific thing. 11 the answers to those four questions will be your verdicts. 12 first three questions go to liability. 13 And the fourth question goes to damages. 14 questions and that is your verdict. 15 You will get four questions, and The Was the law violated? You answer all four I'm going to take one question at a time as we go through 16 this presentation. 17 which asks you to consider whether TransUnion, LLC -- 18 And we will begin with question number one, "Did TransUnion, LLC willfully fail to follow 19 reasonable procedures to ensure the maximum possible 20 accuracy of the OFAC information it associated with 21 members of the class?" 22 And I would suggest to you, ladies and gentlemen, that the 23 answer to that question is a yes. 24 regard. 25 TransUnion failed in this The duty comes straight out of the Fair Credit Reporting 835 CLOSING ARGUMENT / SOUMILAS 1 Act. That's the law that applies in this case. 2 law. Every TransUnion witness told me that they know about it. 3 It's no other Mr. Walker, who has been here throughout the trial, told 4 you that TransUnion employees learn about it from day one. 5 it is a very high standard for TransUnion. 6 follow reasonable procedures that assure. 7 virtually a guarantee. 8 is the absolute highest level of accuracy. 9 possible level of accuracy. 10 11 And It requires them to And assure is It's synonymous with guarantee. And it The maximum It's not the old college try. It's getting it right. Also, it's not a Google search. It's not about putting 12 your name and seeing what comes up. 13 on a government website and typing in Donald Trump and 14 adjusting the fuzzy name logic and seeing what comes back. 15 It's about assuring the maximum, the absolute maximum It's also not about going 16 level of accuracy. 17 reports are important. 18 companies that warehouse information on all of us in databases, 19 and from those databases reports are sold to banks, car 20 dealerships, mortgage companies, insurers, employers. 21 are very, very important transactions. 22 those reports must be accurate. 23 And why is that? It's because credit Everyone told you. These are big These The information on Now, TransUnion concedes this point. It's all over their 24 material. 25 I'd like to point out to you just one letter where they You have the exhibits and you can review them. But 836 CLOSING ARGUMENT / SOUMILAS 1 communicate this, in this case to Mr. Ramirez. And they say: 2 "As a trusted leader in the consumer credit 3 information industry, TransUnion takes the accuracy of 4 your credit information very seriously." 5 And they should. 6 "We are committed to providing the complete and 7 reliable credit information that you need to participate 8 in everyday transactions and purchases." 9 And we need to hold them to that standard that they 10 11 promised to consumers and to their customers. Now, let me just speak for a moment as to what this case 12 is not about. 13 and tell us -- he told us about FINRA, and about the Federal 14 Reserve, and the Securities and Exchange Commission, and the 15 standards that his very high-end banking clients and 16 broker-dealers, as he calls them, which I think are stock 17 brokers, must follow. And we agree that the banking and broker 18 industry is regulated. But that's not the law that applies to 19 this case. You had Mr. Sadie, TransUnion's expert, come in 20 And people who could afford Mr. Sadie at $750 an hour to 21 go and tell them what the banking examiners require should do 22 that. 23 the Fair Credit Reporting Act that applies to credit bureaus, 24 like TransUnion. And Mr. Sadie conceded that he doesn't know a 25 thing about that. He doesn't ever work for a credit reporting But the law that we're going to apply in this case is 837 CLOSING ARGUMENT / SOUMILAS 1 industry. 2 case in which he was engaged for that. 3 know it. 4 5 Does not know the standards. And this was the first And he still doesn't So let's focus on the actual standard that applies to this case, and let's go back to question one. 6 "Did TransUnion willfully fail to follow reasonable 7 procedures to assure the maximum possible accuracy of the 8 OFAC information it associated with members of the class?" 9 And let's break that down. Okay. First, there is no 10 question that the information that TransUnion associated did 11 not assure any accuracy. 12 not Osama bin Laden. 13 wasn't born in the '50s. 14 doesn't live in Cali, Colombia. 15 Mexico. 16 Mr. Ramirez is not El Chapo. He is no one on that OFAC list. It's all wrong. He wasn't born in the '60s. He is He He I doesn't live in Tijuana, Everything is inaccurate. Not a single member of the class, of the 8,185 people in 17 the class had accurate information associated with them. 18 TransUnion had any evidence of an actual accurate association, 19 it would have been the first thing they told you. 20 single witness told you anything about that. 21 Instead, what did they concede? If Yet, not a Mr. O'Connell, who is the 22 man in charge of this product from 2002 through the present 23 says: 24 single confirmed case where we got it right. 25 I have never seen an actual true hit. Ms. Gill, the same thing. We do not have a 838 CLOSING ARGUMENT / SOUMILAS 1 2 3 No TransUnion witness told you that they have ever seen an actual true hit for their OFAC product. Ladies and gentlemen, no procedure that always leads to 4 false results can be reasonable. 5 unreasonable. That's the very definition of 6 And we know why that is. 7 it's that name only matching logic. 8 9 As I told you in the opening, This is the procedure that says that every Sergio Ramirez in the United States is a match to the government's terror list 10 provided by OFAC. 11 that's regardless of middle name. 12 Regardless of address. 13 That's the problem. And not only every Sergio Ramirez, but Regardless of date of birth. And not only every Sergio, but every single person who 14 uses the initial S as part of their name. 15 Simon, or it could be Samuel, or it could be some other first 16 name with S. 17 but according to the testimony you heard from both 18 Mr. O'Connell and Brent Newman, who runs the logic at Accuity. 19 Also, every Rivera, Sergio Rivera. 20 A through Z, and every Aguirre as well. 21 They are a hit, too. So it could be And not only the Ramirezes, Regardless of middle name, Ladies and gentlemen, credit reporting is just too 22 important for this type of guesswork. 23 procedure is unreasonable. 24 point, but I think it's such an obvious point really. 25 TransUnion uses federal procedures for other things. The name only matching And I don't want to harp on this But 839 CLOSING ARGUMENT / SOUMILAS 1 What did Ms. Gill tell you and Mr. O'Connell as well? 2 That they used multi-factor matching for things like other 3 public records and credit cards and car loans. 4 name and Social Security number and date of birth and address 5 or some combination. 6 So they use the But when it comes to terrorist alerts, they use only the 7 name, and not even the complete name? 8 sense to have a lower standard for terror alerts than for 9 credit cards when it comes to assuring accuracy. 10 It makes absolutely no Now, TransUnion has suggested to you during this trial 11 that the technology was just not there for them to be able to 12 get the terror alerts associated accurately with class members. 13 Not there in 2011. 14 know? 15 And that argument rings hollow. How do we Well, on the exact same day that TransUnion said 16 Mr. Ramirez was a match to the OFAC list, its main competitor, 17 Experian, produced a report with an OFAC screen conveyed 18 through the same electronic channel, Dealertrack, and it says 19 "name does not match the OFAC list." 20 So Experian had a procedure in place that yielded an 21 accurate result at that time in 2011. 22 but Dealertrack as well. 23 And not only Experian, They had their own software. You remember Mr. Hector Vale flew here from New York and 24 explained to you that this was one of their documents. And 25 they screen for OFAC independently as well. Same Same day. 840 CLOSING ARGUMENT / SOUMILAS 1 transaction. 2 it accurate back in 2011. 3 No match found. The procedure was there to get Just TransUnion didn't follow it. What did Mr. Ferrari tell you? Now, Mr. Ferrari knows his 4 stuff. 5 if you'll recall, since 2006 in this area. 6 that every financial institution, every business that he has 7 consulted with and who he has advised uses multi-factor 8 identifiers. 9 else. Mr. Ferrari knows OFAC. And he has been giving advice, And he told you Of these two things he said, name and something Because there is always something else on the OFAC list: 10 An address, a Social Security number, a date of birth; 11 something. 12 the name only in his entire career. 13 So other people are getting it right. 14 there. 15 it. 16 And he said he has never ever given advice to use The technology is there. So why? The procedures are TransUnion is not following Well, Mr. O'Connell, the man in charge, came in 17 here and told you they wanted to go with Accuity. 18 Accuity is the very, very best. 19 you anything about who the other options were, and why they 20 were not so really good. 21 you, but he didn't tell you. 22 And then he said: 23 24 25 OFAC hit record. And he said I don't remember him telling He had a chance to explain that to Well, Accuity results in the lowest The lowest rate. And Mr. Francis, my colleague, asked him: Well, tell me what the OFAC hit rate is for your competitor, Experian? 841 CLOSING ARGUMENT / SOUMILAS 1 He said: 2 How about Equifax, what's their hit rate? 3 Mr. O'Connell says: 4 Well, how could he come here and tell you that they're Well, I don't know. I don't know. 5 using a product that has the lowest OFAC hit rate when he 6 doesn't know what his two main competitors are doing and what 7 their hit rate is. 8 9 That's not credible. Here is what we do know about Accuity, is that they are cheap. The testimony from Brent Newman establishes this. For 10 data sold to TransUnion about this product the high end of the 11 price is a penny and a half per transaction per screening. 12 when the volume gets so high, Mr. Newman said the price drops 13 to one-tenth of one penny. 14 And That's why TransUnion uses Accuity. Now, when TransUnion gets this data back from Accuity 15 you'll notice they had a lot of information in it. 16 where the other -- the SDNs came from and then their date of 17 birth and their full names. 18 had any L. name associated with them whatsoever. 19 None of them used an initial L. or Yet, what did TransUnion do? It simply passed it along 20 without even comparing it to its own data. 21 Mr. Ramirez's full name in its database. 22 Exhibit 1, shows it. 23 of birth. 24 25 It had It had The credit report, It's Sergio L. Ramirez. It had his address. It had his date It had his prior address. They didn't look at any of those things to say: what? Hold on. You know Before we send this over to a car dealership, 842 CLOSING ARGUMENT / SOUMILAS 1 let's compare to it our own data. 2 Another lost opportunity to get it right. 3 No procedure used there. Ladies and gentlemen, TransUnion just failed to follow 4 reasonable procedures to assure accuracy for every single 5 member of the OFAC list. 6 So now let's turn to the final part of this analysis, 7 because you must find not only that they failed to follow 8 reasonable procedures to assure accuracy, but that failure was 9 willful. And I'll suggest to you that every single piece of 10 evidence in this case, every single piece of evidence shows 11 willful non-compliance. 12 As I mentioned in my opening statement, this is no 13 accident. 14 someone wasn't paying attention for a moment. 15 business decisions that are all done deliberately. This is no fender bender on the highway where This is a set of 16 Willfulness, the Court has already instructed you -- and 17 you will have, I believe, the charge back in the deliberation 18 room with you -- is an act done knowing that it will violate 19 the Fair Credit Reporting Act or with reckless disregard of 20 whether action will violate the Fair Credit Reporting Act. 21 recklessness is action containing an unjustifiably high risk of 22 harm that is either known or so obvious that it should be 23 known. 24 25 And And that's what we got here. Now, let's break this down. I want to focus for a moment on that six-year history leading up to the Ramirez transaction, 843 CLOSING ARGUMENT / SOUMILAS 1 from 2005 all the way up to 2011. 2 knew and what it did concerning OFAC. 3 Six years of what TransUnion You will recall that we start in 2005 because Sandra 4 Cortez brought her lawsuit in 2005. 5 you part of the stipulation that we read into the record. 6 is undisputed evidence of what happened. 7 And I'm now displaying to This In October 2005, plaintiff Sandra Cortez filed a lawsuit 8 in the Federal Eastern District of Pennsylvania against 9 TransUnion for violations of the Fair Credit Reporting Act, 10 alleging that TransUnion confused Ms. Cortez's identity with 11 the identity of someone with a similar name who was on the OFAC 12 Specially Designated Nationals list. 13 That's the exact same claim that Mr. Ramirez and the class 14 bring here. 15 TransUnion failed to follow reasonable procedures to assure 16 that it was not associating them with the OFAC list. That they are not on the OFAC list and that 17 And that case also alleged that TransUnion failed to 18 correct the problems with her credit report and failed to 19 disclose to her any information about OFAC in her credit 20 disclosure. 21 moment. 22 Also similar to here. I'll get to that in a "TransUnion defended the case on the grounds, among 23 others, that its OFAC product was not governed by the Fair 24 Credit Reporting Act and, therefore, TransUnion did not 25 include it in its disclosures to consumers or allow 844 CLOSING ARGUMENT / SOUMILAS 1 consumers to dispute the information." 2 What does that tell you? That tells you that they knew. 3 They got sued for this exact claim and they said: 4 defend this. 5 this. 6 We've got to We disagree with you, but we've got to defend We know. So what else is going on? The jury comes back in that 7 case and they get a little bit more knowledge. 8 told you this is a significant moment in this case. 9 jury -- and, again, these are stipulated facts, uncontested 10 April 2007. I Because a facts. 11 "A jury found in favor of Ms. Cortez and against 12 TransUnion. 13 TransUnion liable for its failure to treat its OFAC 14 product as governed by the FCRA, including maintaining 15 reasonable procedures for achieving maximum possible 16 accuracy in consumer reports, disclosing OFAC information 17 to consumers and for disputing OFAC information." 18 So now this is a nice clear loud message. Based upon the Court's ruling, the jury found 19 the jury saying you got it wrong. 20 2007. 21 They know. The Court and They know from And what does Ms. Gill, who is the product manager for 22 this case, tell you? 23 Philadelphia. She tells you: I attended the trial in 24 And let's see a little bit of her testimony. 25 "QUESTION: We went through the process earlier, but when 845 CLOSING ARGUMENT / SOUMILAS 1 products or solutions are developed, they go through Legal 2 Compliance for approval, I take it? 3 the Name Screen? 4 "ANSWER: 5 "QUESTION: 6 decide it was governed or not governed? 7 "ANSWER: 8 by FCRA, and it didn't require disclosures, and a separate 9 addendum would need to be signed in order for a customer Did that happen with Yes, it did. Okay. And what was the result? Did they The decision was it wasn't going to be governed 10 to buy the solution or product." 11 And this is from Mr. Luckman, TransUnion's own lawyer. 12 "QUESTION: 13 So the lawyers got it wrong. 14 "ANSWER: 15 TransUnion had gotten it wrong. 16 ruled that it was FCRA data." 17 This is the product manager knows this. And that turned out to be all wrong, right?" Right. 18 tell you? 19 and a half years. 20 made by the business. 21 Apparently, after Cortez, you know, The Court eventually And what did she She went back to Chicago and did nothing for three This was no accident. And they had more knowledge. This was a decision Remember Exhibit 29. I 22 think this was brought into evidence through Mr. Walker. 23 this is a bulletin that's around in 2006, mid-2000s still, that 24 is distributed internally at TransUnion about frequently asked 25 questions about OFAC. And 846 CLOSING ARGUMENT / SOUMILAS 1 Well, I think even Mr. Walker had to concede that you 2 don't have a bulletin on frequently asked questions if you 3 don't get those questions frequently asked. 4 They know that there is a problem, mid-2000s. 5 Nothing. 6 So more knowledge. Ms. Briddell today, I think, testified. What do they do? She said we had a 7 bunch of escalated situations, is what she said, in her 8 department that she needed to deal with concerning disputes 9 about OFAC. 10 Yet, do they change the name only matching logic? Do they do anything? 11 No. Nothing. So you might recall another exhibit that was entered into 12 evidence in this case, and that's this letter from October 2010 13 from the Department of the Treasury going to the highest levels 14 of the corporation, the general counsel. 15 references meetings from July 2007 concerning TransUnion's 16 useful the OFAC products and false positives. 17 correspondence from May 2008. 18 And this letter And then, also, Now, the 2010 communication, which is the one we have 19 here, talks about the rate of false positives. 20 false positives is what we have in this case. 21 information because of the name only matching logic. 22 So the government is telling TransUnion: 23 problem here. 24 2009, 2010. 25 all. They know. And the rate of It's false We've got a They know in 2005, 2006, 2007, 2008, They know and they are doing nothing. Nothing at 847 CLOSING ARGUMENT / SOUMILAS 1 You also heard that in the same time frame of 2010 they 2 lose their appeal in the Cortez case. 3 that the Court of Appeals, by stipulation, they agree to this. 4 Upheld the jury's verdict. 5 And what that means is So the government is writing to them. The appeals court 6 goes against them and they decide they need to do something. 7 It's been six years. 8 9 So what do they do? Well, they never consider for a moment stopping the sale of this product. 10 have to sell it. 11 it. 12 we've got a problem. 13 out. 14 two things in late 2010. 15 Mr. O'Connell says: It's voluntarily. And they could say: No. Here is what they do. 17 a procedure to assure accuracy. 20 They do I sent an email to Accuity and I say stop sending us the Synonyms table. 19 Everybody is saying Let's just stop this until we figure it They don't do that. All right. Government doesn't require You know what? 16 18 Remember, they don't As if sending an email is Ladies and gentlemen, the Synonyms table has zero to do with this case. Nothing. Mr. Ramirez was not a hit on the OFAC list because of a 21 Synonyms table. 22 It's because of name a Sergio and a last name Ramirez. 23 Synonyms has nothing to do with him or any members of the 24 class. 25 nice. Nothing. It's because of a name only matching logic. It's always the name. They got rid of it. The Synonyms table, But it does not at all affect the 848 CLOSING ARGUMENT / SOUMILAS 1 2 problem procedure, at all. And what else do they do? Well, they farm out a project 3 to CapGen. 4 and he does a half day of analysis and he does another half day 5 of computer programming. 6 OFAC list to two words, "potential match." 7 testimony is. 8 cleaned up. 9 That's the place that Mr. Bharat Acharya works for, Change the word. Undisputed. It's a match to the That's what the Half a day of program to get that The email and the half day of programming is not the 10 absolute maximum you can do in this case to assure accuracy. 11 It's really the minimum. 12 notice. 13 The minimum after six years of And let's consider that, that part of the change. All 14 right. 15 Because what they need to do is follow procedures that assure 16 maximum possible accuracy. 17 So does the word "potential" really do anything? A procedure is not changing a word. A procedure is the 18 method, a new formula, a new approach. 19 vendor, using different matching criteria, matching logic, date 20 of birth, an address, something. 21 "potential" has, again, nothing to do with this case. 22 It's using a new Some method. The word Ladies and gentlemen, let me be clear about this. 23 very, very important. 24 "potential" or lack of the word "potential." 25 terrorist alerts. This is The inaccuracy is not the word That's the problem. It's the Those alerts shouldn't 849 CLOSING ARGUMENT / SOUMILAS 1 be there. 2 or anyone in this class. 3 alerts. 4 "potential"? 5 They have absolutely nothing to do with Mr. Ramirez That's the inaccuracy. It's the OFAC Who are they kidding when they talk about the word And then what's the evidence on whether it actually even 6 makes a difference that they use the word "potential"? 7 did Mr. Ferrari tell you? 8 9 He says: What I represent a lot of small clients, and when they see a potential match they freak out. You know what, they 10 just paid for a product to do OFAC screening, and what they 11 don't want to do is roll the dice and gamble that they are 12 going to go to jail or pay a huge fine because they do business 13 with a terrorist. 14 going to run away. 15 So what are they going to do? They are And that's exactly what happened to Mr. Ramirez. It's 16 completely consistent. 17 said: 18 would we take that risk? 19 credit to anyone on this list, and we're not going to take the 20 risk that he's not actually on it. 21 The car dealership saw this report and I'm not doing business with him. Are you kidding? Why The law requires that we not extend So why are we spending so much time -- why are they 22 spending so much time with the word "potential"? 23 important part of this is that they didn't even bother to make 24 sure that the one change that they made was actually carried 25 through. I think the Half a day of programming and no follow up. 850 CLOSING ARGUMENT / SOUMILAS 1 Now, we know that it wasn't carried through in 2 Mr. Ramirez's case. 3 evidence, the thing that was delivered to Dublin Nissan car 4 dealership on February 27th, 2011. 5 We talked about it ad nauseam. 6 it to the report from 2005 for Sandra Cortez. 7 Exhibit 4. 8 9 You're going to have the exhibits in I think that's Exhibit 1. And you will be able to compare That's Take a look at it. The language is the same. TransUnion format. Both says "match." It's in the It's got a TransUnion copyright at the end 10 of it. 11 TransUnion copyright on this report if it's not their report. 12 Anybody else besides TransUnion cares to put a Mr. Vale came here from Dealertrack and said: We just 13 conveyed information. 14 don't change dates or names around. 15 it from TransUnion and we sell to the car dealerships, along 16 with other data that they want. 17 We don't have a horse in this race. What do we care? We We buy That's our service. And that's, in fact, what happened. It happened with 18 Cortez in 2005. 19 later. 20 make sure that this one minor modification that they did was 21 carried through. 22 It happened with Ramirez in 2011, six years No change because nobody even bothered to follow up to Now, if TransUnion wanted to come in here with a stack of 23 credit reports three feet tall to show you that all the other 24 cases that used the word "potential," they could have done 25 that. It's a credit bureau. It's their credit reports. 851 CLOSING ARGUMENT / SOUMILAS 1 Instead, they bring Mr. Turek to very, very carefully tell you 2 today that he's not aware of any other cases where the word 3 "match" as opposed to "potential match" was used. 4 they just bring in the documents to show it to you? 5 Why didn't Ladies and gentlemen, this just shows a complete lack of 6 care that the one change which really wouldn't have made any 7 difference to either Mr. Ramirez or the class was actually 8 carried through. 9 Because the problem is the alerts. It's the terrorist 10 alerts. 11 must find a risk of harm that is either known or so obvious 12 that it should be shown. 13 much about this. 14 And what is -- remember, for a willful violation you And I hope I don't have to say very I mean, this is obvious. They knew about it. They knew about it from the Cortez 15 lawsuit, from the jury verdict, through the hundreds of 16 disputes, through the Department of Treasury. 17 it. 18 They knew about They knew about it from 2005, 2011. Yet, what did they do to the procedure that actually 19 caused this? 20 from the boss, Mr. O'Connell. The name only matching logic. Let's hear again 21 "QUESTION: 22 TransUnion continued to use the name matching logic? 23 "ANSWER: 24 "QUESTION: 25 2011 and up through 2013, when you testified in this case, After February 7th of 2011, am I correct that That's correct. Am I correct that at least after February of 852 CLOSING ARGUMENT / SOUMILAS 1 TransUnion never began using dates of birth in accordance 2 with the OFAC product? 3 "ANSWER: 4 "QUESTION: 5 receiving this letter from having the -- the OFAC letter 6 from Treasury, never began using addresses to help screen 7 or reduce false positives? 8 "ANSWER: 9 "QUESTION: We never put it in production, no. Okay. And am I correct that TransUnion, after That's correct. Okay. And at no point after February 2011 and 10 up through December 2013 did TransUnion ever use another 11 vendor for OFAC compliance, correct? 12 "ANSWER: 13 He continues: 14 "QUESTION: 15 you employed no additional matching criteria other than 16 name? 17 "ANSWER: 18 "QUESTION: 19 "ANSWER: 20 "QUESTION: 21 employ any other matching criteria other than name? 22 "ANSWER: 23 So they sat around for two years, two additional years, We did not." Sir, isn't it true that as of December 2013, Since then? As of 2013 -- Yes. -- and from 2011 isn't it true that you didn't The matching criteria, yes, that's true." 24 2011 through 2013, and they waited for Accuity to answer their 25 email. 853 CLOSING ARGUMENT / SOUMILAS 1 They knew that the name only procedure never delivered a 2 confirmed hit. 3 able to identify because of a particular letter that was sent 4 to them, but for no one, ever. 5 considered stopping the sale of this product, even though they 6 knew they had a major problem with it. 7 buying it cheap. 8 9 10 Not just of the class members here who we were They never Because they were Buy low, sell high. They kept on profiting while consumers got falsely associated with the OFAC list. Ladies and gentlemen, every act in this case is knowing 11 and intentional. 12 Nobody conceded any mistakes. 13 They did nothing. There were no accidents. No mistakes. This was willful. So TransUnion did willfully fail to follow reasonable 14 procedures to assure the maximum possible accuracy. 15 to question number one is yes. 16 The answer You're going to be happy to know that we're going to get 17 through questions two and three together. 18 little quicker. 19 they both relates to the disclosure claim. 20 telling consumers about OFAC. 21 to answer as part of your verdict are numbers two and three. 22 "Did TransUnion, LLC willfully fail to clearly and It's going to be a So I'm going to put them up together because What is information And the questions you will need 23 accurately disclose OFAC information in the written 24 disclosures it sent to members of the class?" 25 And then the next question: 854 CLOSING ARGUMENT / SOUMILAS 1 "Did TransUnion LLC willfully fail to provide class 2 members a summary of rights with each written disclosure 3 made to them?" 4 I would submit to you, ladies and gentlemen, that the 5 answer to both of those questions is also yes. 6 Yes to two. 7 Yes to one. Yes to three. Now, question two is the exact same issue as the Cortez 8 case back in 2005 and 2007. 9 It is the only opportunity that consumers know what information And this is an important standard. 10 is being bought and sold about them. 11 know. 12 If they are going to sell information about me, let me 13 know what you're selling. 14 home and tell me what's in it. 15 This is a basic right to Give me my personal credit report at This is very fundamental to credit reporting, and 16 TransUnion again knows this. 17 witnesses testified that they know this. 18 that this information comes in the file disclosure, as the 19 question asks, which is known as the personal credit report. 20 That's the thing that we all get at home when we ask for our 21 credit report. 22 like. 23 All of their Consumer Relations Everybody knows that. And they all said They know what they look We've seen them in this case. We have a comparison here of the personal credit report 24 sent to Mr. Ramirez by TransUnion in the 2011 -- late February, 25 early March 2011 time frame. It's Exhibit 75. You'll have it 855 CLOSING ARGUMENT / SOUMILAS 1 back there with you -- to the Cortez personal credit report 2 provided to that consumer in 2005. 3 them. 4 the same. 5 They look the same. You will be able to compare They are the same format, exactly Nothing has changed in six years. And the important part of this is that the same thing that 6 was missing in Cortez is missing in Ramirez. 7 OFAC. 8 around, take a look at it. 9 put in it there and they didn't. 10 Nothing. Look through every single page, turn it It's not there. This is the file disclosure. 11 about OFAC. 12 information. 13 about this. Not a word about They could have Six years later. It does not say anything And the question is whether they disclosed all Well, they didn't. I don't know what else to say This is a slam-dunk issue. It's just not there. 14 The Cortez jury found TransUnion in willful violation of 15 this provision on behalf of the FCRA for not showing the OFAC 16 alert in her disclosure. 17 thing six years later -- actually, 10 years later, because that 18 jury came back in 2007. 19 yes. 20 Your verdict should be the exact same The answer to question number two is Question number three, I'll remind you, is: 21 "Did TransUnion willfully fail to provide class 22 members a summary of rights with each written disclosure 23 made to them?" 24 And the "with each" language is not in there by accident. 25 It's in there because the law requires it. It's in 856 CLOSING ARGUMENT / SOUMILAS 1 Judge Corley's jury charge because that's the law of this case. 2 It's the Fair Credit Reporting Act. 3 And this is not a case about swing sets and whether 4 instructions for swing sets come in one box or two boxes, like 5 Mr. Walker testified. 6 that the U.S. Congress said must be provided to consumers so 7 that they know what's being sold about them and how to correct 8 it when errors are made. 9 This is a case about vital information It's about informing consumers in plain English about how 10 to dispute or to block inaccurate information, including 11 inaccurate OFAC alerts. 12 13 It's this FCRA Bill of Rights that you've heard from several witnesses. 14 And here is what Mr. Walker said about that. 15 "QUESTION: 16 before -- and I wrote it down. 17 provides something called a Federal Bill of Rights. 18 "ANSWER: 19 "QUESTION: 20 And would I be correct in stating that at least some of 21 those essential rights that the FTC requires is the right to 22 dispute information? All right. Now, I think you mentioned You mentioned that the FTC That's what we refer to it as. 23 "ANSWER: 24 "QUESTION: 25 "ANSWER: That's what you call it, right? Yes. The right to block information? I believe so, yes." 857 CLOSING ARGUMENT / SOUMILAS 1 All right. They know about this, too. They know what 2 they have to tell consumers about this very important right 3 that. 4 That's question number three. So what we know is that question number three relates to 5 Exhibit Number 3. 6 You'll have that as well. 7 Mr. Ramirez was sent subsequently on March 1st, 2011. 8 the only communication that has anything to do with OFAC that 9 goes to consumers during the entire period in question here. 10 11 Exhibit Number 3 is up on the screen now. It is that one-page letter that And that's the case for every single member of this class. In fact, that's how we were able to identify class 12 members, because they were sent this letter. 13 thing that they were sent. 14 It is And it's the only Just one piece of paper. And then I'd like you to consider what TransUnion, at the 15 very highest level, its general counsel's office, is telling 16 the U.S. government about this and what they actually tell 17 consumers in this letter. 18 So you'll recall the Treasury Department writes to 19 TransUnion in August -- I'm sorry, it's October 2010. 20 TransUnion takes about three months to get back to them. 21 months. 22 It's well thought out. 23 corporation, Denise Norgle, the general counsel of the company. 24 And she is responding to a letter that says: 25 about false positives ensnaring innocent consumers. So this isn't some hurried response. And Three It's deliberate. It comes from the highest levels of a We are concerned 858 CLOSING ARGUMENT / SOUMILAS 1 2 3 Take a look at it. Exhibit 34. You will have it. It's going to be Read that letter. And this is the one, Exhibit 35. That goes back in 4 February 2011. 5 Mr. Ramirez that the car dealership goes down. 6 frame. 7 Exact same month that they are sending this to Here is what she says. Exact same time She says: "The notification that we sent to consumers is 8 accompanied by instructions on how the consumer can obtain 9 further information from TransUnion about our OFAC Name 10 Screen service and how to request TransUnion block the 11 return of a potential match message on future 12 transactions." 13 Well, that language is not there by mistake. Another 14 intentional act. 15 because it's required by law. 16 you, we have to inform consumers of their rights, including the 17 right to dispute and block inaccurate information. 18 The reason why that language is there is So that's why TransUnion is telling the Treasury, we're 19 doing that. 20 consumers how to do that. 21 22 23 Every TransUnion witness told We're instructing them. We're instructing But this statement, ladies and gentlemen, is just not good. It's just not good. Take a look at Exhibit 3, which is the only notification 24 to consumers. 25 word "dispute." Go look for the word "block." Go look for the Go look for the word "instruction." It's not 859 CLOSING ARGUMENT / SOUMILAS 1 there. 2 consumers. 3 No. None of those things are communicated to Instead they say: We're sending this to you as a courtesy 4 and we're totally in favor of courtesy. 5 courtesy. 6 because that's the point of this letter. 7 This is in your file. 8 9 But you should also be told what your rights are, Doesn't say that. says: Everybody should have In plain English. Take a look at Exhibit 3. Your file is being sent to you separately. Instead it Well, if 10 it's being sent to you separately, then it must be the other 11 thing, right? 12 The thing that looks like a file. By the way, it says it's being mailed to you separately. 13 I would submit to you, ladies and gentlemen, the online 14 disclosures never were accompanied by this letter because they 15 were never mailed. 16 And the numbers that you look at, Exhibit 10, just don't 17 add up. 18 Ms. Briddell just simply got that wrong. 19 They were not disclosing anything. I think But we know that every member of the class got this 20 letter. 21 to request -- how to make a dispute or how to block. 22 And not a single person was given instructions on how And Mr. Ramirez's experience is completely consistent with 23 that reality. 24 called them on February 28. 25 reason why he called TransUnion on February 28 is because what Mr. Ramirez called TransUnion. You will hear he The record is clear. And the 860 CLOSING ARGUMENT / SOUMILAS 1 happened at the car dealership. 2 letter. 3 he would have called because the letter informed him what to 4 do. 5 It wasn't because of this This letter is dated March 1st. And then what happened? It's impossible that Then he scrambled around. He 6 called up TransUnion and said: 7 gets something. It's not in his file. 8 very confusing. He doesn't know what to do, and he calls my 9 office. Oh, it's not in your file. He gets a letter. He It's And then he writes his dispute to TransUnion about how 10 to figure out how to get it blocked and removed so it doesn't 11 happen again and again and again. 12 TransUnion would like to tell you, again, that it's a 13 technology problem. 14 and paste everything in a single document, in plain English, 15 that tell people: 16 everything else, and you have the right to dispute it if you 17 think it's inaccurate and get it blocked. 18 That it's just not possible to just cut This is everything in your file, OFAC and Well, what's the testimony about whether it was possible 19 to send a single document with both the credit information and 20 the OFAC information to its paying customers? 21 since the very beginning, 2002, we were able to do it with our 22 customers. 23 The answer was, Cortez in 2005, there is no question about it. It's a 24 single integrated document with both personal information, the 25 OFAC information and the credit information. All in one 861 CLOSING ARGUMENT / SOUMILAS 1 document. 2 3 Being sold to L.A. Subaru in 2005. Dublin Nissan, 2011, same thing. All in the single document. 4 But when it comes to giving it away free to consumers 5 because the law requires, as Mr. Walker said, that these 6 disclosures be made to consumers for free, because they had the 7 right to know everything that's being sold about them, the 8 technology was just primitive. Stone Ages. 2011 was like the 9 Dark Ages about putting documents together. Your choice as to 10 whether you're going to believe that defense. 11 I'll tell you another reason why this technology defense 12 rings hollow. 13 didn't get around the trying to figure it out until 2011. 14 was printer problems. 15 They are calling trying to get it all together. 16 That every witness for TransUnion told you they A lot of printers. Well, why are they waiting so long? It North Carolina. They lost this issue 17 in Cortez in 2007 and they went home and did nothing. 18 they really thought, heck, this might be a difficult project, 19 we might need to get our best people on this to figure out it 20 out. 21 Why didn't they do it in 2007, 2008, 2009, or 2010? Sometimes, ladies and gentlemen, if a job is hard, really 22 hard, maybe you should get to work early. 23 getting to work early. 24 25 So if They didn't bother And you know what else they didn't bother doing? stop selling this product. Just This is completely voluntarily. 862 CLOSING ARGUMENT / SOUMILAS 1 They sell it to make money. 2 by the government. 3 safe or anything like that. 4 That's it. They are not required They have no role in keeping the country I'm not here to question TransUnion's patriotism. 5 Questioning their ability to comply with the law. 6 willingness to comply with the law. 7 selling this product and say: 8 important. 9 vendors. 10 11 They could just stop You know what? Let's get it right. Their This is Let's talk to our print Let's get this right, and then we'll start rolling it out again. They don't bother. Because what they are interested in is 12 sales. 13 because TransUnion was able to comply with the law. 14 just not willing to do it. 15 violations. 16 They are not interested in complying with the law, It was That's why these are also willful As with the claim on the OFAC alerts going -- on the 17 association of OFAC alerts to class members, I'll submit to 18 you, ladies and gentlemen, that every piece of evidence on the 19 disclosure claims indicates willful noncompliance. 20 series of business decisions, thoughtful, deliberate decisions. 21 No mistakes. 22 putting profits ahead of the reputations of consumer rights for 23 ordinary people like Mr. Ramirez and members of the class that 24 we represent. 25 No fender benders. It's a This is just a case of The answer to both questions two and three should be yes. 863 CLOSING ARGUMENT / SOUMILAS 1 2 Which takes us to the final question, question four. And this is a question on damages. 3 Now, as Judge Corley has already instructed you, I 4 believe, if you check a "yes" on any of the first three 5 questions, any of the liability questions, you are entitled to 6 go to damages and award the full statutory damages of $1,000. 7 You don't have to check "yes" to all three. 8 do so because that's a correct verdict in this case. 9 And what are the statutory damages? I'm urging you to What amount of 10 statutory damages of not less than 100 or more than 1,000 do 11 you award to each member of the class? 12 Well, like most laws there is a consequence for violating 13 them. 14 the FCRA, the consequence is this, 100 to 1,000. 15 100, no more than 1,000. 16 with. 17 And for a case like this, a certified class action under No less than It's not something we just came up It's in the statute. Congress wrote it. I told you in the opening I wish that number were higher 18 because I would like to ask you for more money to compensate 19 class members, but the top is a fact. 20 Other laws work this way. When you put people at a risk 21 of harm, for example, because you're speeding on the highway, 22 there is a consequence. 23 ticket. 24 Sometimes there is a range depending on how fast you're going. 25 The consequence is you get a speeding And it's some fixed amount of money, $200 or $300. And the same is true here. There is a consequence of 864 CLOSING ARGUMENT / SOUMILAS 1 violating every law, and in this case the consequence is 100 to 2 $1,000. 3 Now, I asked you for 1,000 at the get-go and I'm going to 4 ask for it again. 5 violation here. 6 credit information not being disclosed to consumers or being 7 incorrectly associated with consumers. 8 card balance. 9 could have on a credit report. 10 And that's because of the nature of the We are not talking about some minor item of This isn't your credit This is the most damning information that you It's whether you're associated with the government's watch 11 list of terrorists, money launderers, drug traffickers, king 12 pins. 13 damages provision. 14 is violating them in multiple ways as to thousands of people. 15 And the risk of harm is obvious and known to TransUnion. The nature of the information here requires the maximum These are important rights, and TransUnion 16 Look what happened to Mr. Ramirez, as one example. 17 is a decent, hard working man, who is just trying to raise his 18 family. 19 sitting in the back a couple of days. 20 wife a car at Dublin Nissan that she was primarily going to 21 drive. 22 23 24 25 Mr. Ramirez You might have noticed his teen-age daughter was He tried to go get his He was there with his father-in-law and the salesman comes out and says: You're on the terror list. That's not right. He was embarrassed. That shouldn't happen. He was shocked. He was scared. He canceled his vacation 865 CLOSING ARGUMENT / SOUMILAS 1 to Mexico because he wasn't sure what was going to happen. 2 These are natural reactions when someone informs you of that. 3 It's the risk that TransUnion knows about from Cortez in 2005 4 through the disputes through the years, through the Treasury 5 Department letters. 6 And then they also didn't help him correct this problem. 7 Let's be clear about this. 8 problem was corrected. 9 which so clearly told him what his rights are and how to block 10 it. 11 they told him. 12 He called my office and then the It wasn't through TransUnion's letter, That's what TransUnion told the Treasury. Mr. Ramirez has taken a week off of work. 13 getting paid. 14 himself. 15 has fought for justice for the last six years. 16 because it's been easy. 17 yielded an inch. 18 law. 19 And he's here. That's not what He's not And he's here not just for He's here on behalf of complete strangers. This man It's not It's not because TransUnion has He deserves the maximum penalty under the And so does every single other member of this class. The judge told you at the beginning and she told you again 20 that your verdict must be the same for every class member. 21 Again, we don't make this up. 22 That is because this is a certified class action. 23 that word several times. 24 just empty talk. 25 That's what the law requires. You heard And that means something. It's not It means that there is a determination that Mr. Ramirez is 866 CLOSING ARGUMENT / SOUMILAS 1 the appropriate representative to be here, to speak for this 2 group of people. 3 typical. 4 issues are the same for every class member. 5 He's not unusual. And the claims are common. He's not atypical. He is The important legal That's what it means to have a certified class action. 6 doesn't mean that we come in here with 8,000 people and stay 7 here until the end of next year so you can hear every single 8 story. 9 decide liability and damages. 10 The Court certifies the class action and you get to There are by stipulation uncontested evidence, 8,185 11 people that are similarly situated in this case. 12 are common. 13 you otherwise. 14 Mr. Ramirez is typical. Their claims Don't let TransUnion tell That's the only group in this case. Mr. Ramirez and members of the class were unfairly and 15 falsely linked by TransUnion to a government watch list of 16 terrorists and other criminals. 17 with them about what was in their file or how to fix it. 18 no good could come from that. 19 It Then TransUnion was not honest And Yet, the man in charge, Mr. O'Connell, came here last week 20 and he told you that in TransUnion's view they benefited these 21 people. 22 I want to remind you of what he said. 23 "QUESTION: 24 stack that I just placed in front of you" -- the document 25 which was the last list was displayed -- "represents the Mr. O'Connell, I will represent to you that the 867 CLOSING ARGUMENT / SOUMILAS 1 class of over 8,000 people in this case. 2 testimony that TransUnion's enhancements and products 3 benefited those 8,000 people? 4 "ANSWER: 5 Is his answer. 6 "QUESTION: 7 Again he says it. 8 "ANSWER: 9 "QUESTION: Is it your Absolutely." Absolutely?" Absolutely. Is your testimony that the members of this 10 class who were identified as being a hit on the OFAC list 11 were benefited by TransUnion's practices? 12 "ANSWER: 13 Let that sink in for a moment. Yes." TransUnion thinks that it 14 did nothing wrong and that it -- that it, in fact, benefited 15 the thousands of people that it falsely called terrorists. 16 Ladies and gentlemen, it's very rare that citizens get to 17 participate in government. 18 is even more rare that you participate in a jury. 19 more rare that you get to deliberate and decide an important 20 case. 21 We all vote every so often. This is an important case. You know it. And it And even And you have the 22 power to decide it today. 23 over the country -- D.C., New York, Chicago, Pennsylvania -- 24 because it doesn't matter. 25 relate to one of the big three credit reporting agencies in People did not fly here from all It matters. Your verdict will 868 PROCEEDINGS 1 this country that deals with millions of consumers. 2 important decision. This is an 3 I hope you exercise the power that you have today wisely. 4 And I urge you when you go back in that jury deliberation room 5 to answer yes to question one, yes to question two, yes to 6 question three and $1,000 to question four. 7 8 9 Thank you. THE COURT: All right. Thank you. Ladies and gentlemen, we will take our lunch 10 break, our 45-minute lunch break. 11 you continue to not discuss the case as the closing arguments 12 have not concluded. 13 and we'll finish the closing arguments, and I'll give you the 14 closing instructions. 15 Thank you. 16 (Jury exits the courtroom at 12:12 p.m.) 17 18 19 20 21 22 23 24 25 THE COURT: So it is very important that And then we will return at 1:00 o'clock, Okay. Thank you. (Whereupon at 12:12 p.m. proceedings were adjourned for noon recess.) 869 CLOSING ARGUMENT / NEWMAN 1 2 P R O C E E D I N G S JUNE 19, 2017 1:06 P.M. 3 4 5 6 7 ---000--(Proceedings resumed pursuant to noon recess.) THE COURT: Thank you, ladies and gentlemen. resume with Mr. Newman's argument on behalf of TransUnion. MR. NEWMAN: Thank you, your Honor. 8 9 We will CLOSING ARGUMENT MR. NEWMAN: Ladies and gentlemen of the jury, let me 10 begin by thanking you one more time for being so patient and so 11 attentive to the evidence in this case. 12 must be formed by the evidence and the evidence we believe will 13 lead you to write down "no" on that verdict form. 14 Because your decision We know we have given you a lot of evidence, a lot of 15 material to review. 16 of history. 17 are grateful for how careful you have paid attention to the 18 evidence in this case. 19 This case has asked you to review 16 years It's an enormous amount of information. And we Since 2001 all of us have had to pay greater attention to 20 security matters. 21 evidence from many witnesses, from Mr. Ferrari and Mr. Sadie 22 and many others, in 2001 the USA Patriot Act imposed new 23 requirements on many of us, and that law, the Patriot Act, had 24 one of its important goals to make sure that the financial 25 system was free of use or potential use by persons, Treasury Specifically, and you have heard this 870 CLOSING ARGUMENT / NEWMAN 1 2 wanted to block. You've also heard evidence leading up to the present day 3 about how financial institutions and others have been affected 4 by the Patriot Act requirements. 5 You've seen a example very recently of the Specially 6 Designated Nationals search tool on OFAC's own website that 7 permits even today fuzzy logic name searching with a very low 8 name matching threshold to deliver lots of results for human 9 review. Compare that to TransUnion's system which today does 10 have a very tight fit on the name match. 11 date of birth post-screen technology to reduce the number of 12 results delivered. 13 And today also has a TransUnion also has a Consumer Relations Department to let 14 consumers identify themselves ahead of a transaction and get 15 their OFAC status pre-cleared beforehand. 16 that level of service. 17 who can make sure consumers get helped. 18 OFAC does not offer OFAC has nobody like Denise Briddell It would be nice, ladies and gentlemen, it would be very 19 nice if we lived in a world where we do not have to take our 20 shoes off and go through metal detectors. 21 our world today, unfortunately. 22 But we do. This is When you came into court for this trial, you probably saw 23 a sign reading: 24 all around us. 25 cope with the new world we live in in a way that is as humane If you see something, say something. We cannot avoid it. It is All we can do is try to 871 CLOSING ARGUMENT / NEWMAN 1 as possible and we believe the evidence shows that TransUnion 2 has complied with that standard. 3 To completely discourage watchful alertness renders us all 4 unsafe. 5 efficiently resolved with no hardship and only occasional 6 inconvenience than to suffer the consequences of missing even 7 one true hit. 8 Better to have a few false positives that can be No one suggests that OFAC screening will capture someone 9 bad before he acts, but it will make it harder for those who 10 intend to do wrong to access our legitimate financial system. 11 It will hinder and delay them and potentially deprive them of 12 resources, and that does keep us a little bit safer. 13 14 15 So, please, let's go back in time and review what the evidence shows us. As you heard from Ms. Gill, in 2002 TransUnion was asked 16 to develop a Patriot Act product to help financial institutions 17 adapt to the new world of heightened security. 18 She studied who was out there and she went with Accuity. 19 Accuity was a leading company. So she did. They managed the system 20 that routes checks from all over the country so they get paid 21 by the right bank. 22 mailed to a company in Texas and be paid. 23 infrastructure we deal with that helps us every day. 24 even know it's there. 25 scenes. So a check drawn in San Francisco could be This is financial We don't It operates seamlessly behind the 872 CLOSING ARGUMENT / NEWMAN 1 2 You have heard no evidence that the choice of Accuity was wrong. 3 The people at TransUnion did believe that their new 4 product, at the time called OFAC Advisor -- later the name was 5 changed to OFAC Advisor Name Screen -- the people of TransUnion 6 believed that the product was under the Patriot Act, not under 7 the Fair Credit Reporting Act. 8 fine. 9 Five years passed. And for five years all was Five years passed. The evidence has not shown you that there were any 10 significant problems during the five years in between when 11 TransUnion first began selling Name Screen data and when 12 Mrs. Cortez had her jury trial in 2007. 13 shown you that at any time during this five-year period anyone 14 in authority told TransUnion that Name Screen is under the Fair 15 Credit Reporting Act, not the Patriot Act. The evidence has not 16 You have also heard evidence that even though the Federal 17 Trade Commission and the Federal Consumer Financial Protection 18 Bureau are responsible for the Fair Credit Reporting Act, they 19 have never provided any guidance whatsoever about what to do 20 with OFAC data. 21 for matching logic. 22 something like Name Screen what are the reasonable procedures 23 to assure the maximum possible accuracy. 24 guidance. 25 These two agencies have never set a standard These two agencies have never defined for They have provided no They have never set a standard for how results are to be 873 CLOSING ARGUMENT / NEWMAN 1 reported. 2 is to be delivered to members of the public. 3 They have never set a standard for how information They have never required any updates to the Summary of 4 Rights information that they mandate. 5 TransUnion what specific language to include about OFAC. 6 They have never told In the meantime, there have been lots of other federal 7 agencies who have expressed lots of thoughts about name 8 screening. 9 contradictory things to say. 10 Some want to see more hits. 11 They have had lots to say. They have had lots of Some want to see fewer hits. One thing is clear though. They all want the screening to 12 continue, and there will be serious consequences if the 13 screening program is just ended entirely. 14 Judge Corley explained to you in her instructions that 15 someone who has a -- that someone who has an objectively 16 reasonable interpretation of the law does not willfully violate 17 the law. 18 federal agency, except the agency given the Fair Credit 19 Reporting Act, is it any surprise that TransUnion's people 20 thought Name Screen was under the Patriot Act? 21 And so with all this activity and interest from any OFAC seemed to think it was under the Patriot Act. 22 OCC seemed to think it was under the Patriot Act. 23 to think it was under the Patriot Act. 24 it was under the Patriot Act. 25 under the Patriot Act. The FINRA seemed The SEC seemed to think The DOJ seemed to think it was And the good people at the Federal 874 CLOSING ARGUMENT / NEWMAN 1 Reserve Board, who print our money, also seemed to think it was 2 under the Patriot Act. 3 In 2007 a jury in Philadelphia disagreed. An appeal was 4 filed, and for three years TransUnion waited for legal 5 guidance. 6 Act product. 7 differently. 8 9 10 11 It believed in good faith that this was a Patriot Three years later, in 2010, TransUnion heard Clearly, this was a complicated legal issue if it took the appeals court three full years to assess whether the OFAC Name Screen is under the Fair Credit Reporting Act at all. But did TransUnion do nothing during this period, 2007 12 through 2010? 13 gentlemen, that even during this period of legal uncertainty, 14 TransUnion acted in good faith to try to make the product 15 better. The evidence has shown you, ladies and 16 You heard Mr. O'Connell testify that during this time he 17 used Accuity's rules feature to get the off-the-rack hit rate 18 down from 5 percent to below 1 percent. 19 documents from OFAC that talk about how interdiction software 20 screens against names and other information. 21 explained this to you. 22 names of corporations, countries and vessels. 23 how have never worked around the ocean or who have never served 24 in the Navy, a vessel is just another name for something in the 25 water; like a ship, a boat or a submarine. You have seen some Mr. O'Connell He explained that the SDN list also has And for those of 875 CLOSING ARGUMENT / NEWMAN 1 For example, Captain Jack Sparrow from the movie Pirates 2 of the Caribbean, his pirate ship was called The Black Pearl. 3 So if The Black Pearl, as a private vessel, were listed on the 4 OFAC list, someone named Pearl Black might match to it. 5 Mr. O'Connell testified that even before 2010 he directed 6 that the Accuity rules feature be employed to prevent these 7 matches. 8 consumers. 9 rules features allowed to get that match rate as low as 10 11 That is evidence of good faith and concern for And he also explained that he did the most that the possible. Also, during the period of 2007 to 2010, during that 12 period of legal uncertainty, as TransUnion was contacted by 13 consumers about Name Screen, Colleen Gill testified that she 14 would individually process the files to resolve consumer issues 15 and to help them. 16 concern for consumers. That is further evidence of good faith and 17 And then the Cortez ruling happened in August 2010. 18 the United States Court of Appeals for the Third -- excuse me. 19 There the United States Court of Appeals for the Third Circuit 20 said, in spite of all the other authority that was out there, 21 this really is under the Fair Credit Reporting Act. There 22 So at least for the three states of the Third Circuit, 23 Pennsylvania, New Jersey and Delaware, TransUnion had an answer 24 that Name Screen is under the Fair Credit Reporting Act. 25 as mentioned earlier, and as the witnesses have testified, And 876 CLOSING ARGUMENT / NEWMAN 1 TransUnion accepted that outcome and did not seek to appeal 2 further to the Supreme Court. 3 You were promised during opening, and the evidence has now 4 shown you, that TransUnion did four effective things to obey 5 the Cortez ruling. 6 and they got to work. 7 The first thing. TransUnion's people rolled up their sleeves You heard evidence from Colleen Gill and 8 Bharat Acharya. 9 was improved, showing that a Name Screen is a potential match. You heard evidence that the message to lenders 10 Now, why this new language was actually missing from the 11 Dublin Nissan report was explained by Mr. Lytle and Mr. Turek 12 and as proven by the documents you have seen. 13 The reseller ODE made an unapproved modification to 14 TransUnion's required format without TransUnion's knowledge or 15 permission. 16 as far as we know this is the only time this ever happened. 17 And you heard testimony from Mr. Turek today that Now, proving that -- the evidence shows you that this was 18 not an approved format. 19 to Exhibit 93, you will see many differences between what 20 Dublin Nissan got and what was standard at that time. 21 Mr. Lytle walked through many of those differences in detail in 22 his testimony, including that Exhibit 1 has a 1994 copyright 23 and has imported data from other sources, from non-TransUnion 24 sources. 25 So if you'll please compare Exhibit 1 OFAC data was not even sold until 2002. The Patriot Act 877 CLOSING ARGUMENT / NEWMAN 1 was not even enacted until 2001. 2 on Exhibit 1 should be enough to prove to you that the document 3 is not an approved format. 4 5 6 So the 1994 copyright alone Mr. Turek has also explained to you how strange and unusual it was for a 1994 copyright to appear. Now, a document that plaintiff put before you also proves 7 that Exhibit 1 is not an approved format. 8 Mrs. Cortez's credit report, proved this to you. 9 document that plaintiff has put in front of you. 10 Exhibit 4, This is a As you know from Mr. Lytle's testimony the format of the 11 time stamp is different. 12 "A" on the top left is different. 13 of each document differs significantly. The use of the prefix "I" instead of And the language at the end 14 Judge Corley has instructed you that the plaintiff has the 15 burden of proof on every issue, and plaintiff has not proven to 16 you that Exhibit 1 is an approved format for a TransUnion 17 credit report. 18 Mr. Burns at Dublin Nissan would have followed his training 19 correctly and cleared Mr. Ramirez for the transaction if the 20 reseller ODE had followed specific instructions to describe the 21 data as only a potential match. 22 Nor has plaintiff proven to you whether And we have explained to you how the data moved through 23 various sources and how TransUnion has attempted to place rules 24 and guidelines and communicate requirements down through the 25 various parties and the chain of data transmission. And you 878 CLOSING ARGUMENT / NEWMAN 1 have had no evidence from the plaintiff to show you that this 2 was not generally effective or that it did not help the other 3 members of the class. 4 We also know from Mr. Sadie's testimony that what 5 Mr. Burns did, failing even to take a second look at the 6 information he had, was highly irregular. 7 suggesting that TransUnion could have anticipated that 8 Mr. Burns would act contrary to how TransUnion expected Name 9 Screen data to be used. There is no evidence There is no evidence that anyone could 10 have expected Mr. Burns to act contrary to the training he 11 received at his dealership on how to process a Name Screen 12 result to clear the transaction. 13 We simply do not know. What we do know, as this has been stipulated, is that only 14 40 consumers during the class period were even at risk of a 15 similar issue because only 40 reports were sold via ODE. 16 is no proof that the class as a whole faced even the same 17 situation as Mr. Ramirez. 18 There Ms. Coito of the Dublin Nissan dealership seemed to know 19 how to handle OFAC data properly, to view it only as a 20 potential match, and to attempt to clear consumers. 21 ODE had followed the instructions it received and had used an 22 approved format, perhaps even Mr. Ramirez's day would have gone 23 better. 24 have seen no one else come before you with a similar situation. 25 Yes, of course, it would not be reasonable to expect 8,000 Plaintiff has not proven otherwise to you. Perhaps if And you 879 CLOSING ARGUMENT / NEWMAN 1 people to pile into this courtroom. 2 class cases. 3 evidence? 4 happened to someone else? 5 before you, ladies and gentlemen. 6 That's not why we have But one, two, three, four? To amplify the To show that what happened to Mr. Ramirez actually That evidence has not been placed Mr. Sadie also has explained to you what was the state of 7 knowledge and the state of industry practice in 2011. 8 Mr. Sadie explained that in 2011 it was understood by those who 9 received Name Screen data that it was to be used only as a 10 potential match, as a starting point for a compliance process. 11 And it was never intended a loan to be used to deny credit. 12 With respect to the class as a whole, you have seen no 13 evidence that OFAC data was misused. 14 that any class members were harmed. 15 that any class members even faced any significant risk of harm 16 or hardship. 17 You have seen no evidence You have seen no evidence The other evidence also supports that TransUnion 18 instructed users and resellers on the proper use of its data. 19 Ms. Gill testified that a general announcement went out to 20 thousands of users and resellers to explain the change and to 21 remind them that OFAC data is name screening only, to remind 22 them that name screening should not alone be used to deny 23 credit. 24 25 Mr. Turek also explained this to you this morning. Ms. Coito seemed to understand this, but you have heard no 880 CLOSING ARGUMENT / NEWMAN 1 explanation as to why Mr. Burns seems not to have. 2 But what we do know about Mr. Burns is that he did not 3 really believe Mr. Ramirez was a terrorist, because he, in 4 fact, let the transaction go through. 5 car. 6 Mr. Ramirez's wife. 7 He got the family their He just processed the transaction in the name of And I submit to you, ladies and gentlemen, that this is 8 the same thing Mr. Burns would have done if Mr. Ramirez's prior 9 repossession of a vehicle had been disclosed. He just would 10 have qualified the family in the name of the wife and the 11 family still would have gotten their car. 12 gotten the car at the exact same time, taking into account the 13 fact that Mrs. Ramirez wanted a different color for the 14 vehicle. 15 They would have Contrary to what Mr. Soumilas told you in the opening 16 statement, the family was not delayed in getting the car 17 because -- if anything because of OFAC, but because the car 18 wasn't on the lot. 19 when that vehicle was delivered to the Ramirez family. 20 Nothing about Name Screen had any impact on You, ladies and gentlemen, you know what hardship is and 21 you know why we have courts. 22 real world consequences, not to address the routine 23 inconveniences of modern life that have no permanent effects 24 and that can be addressed through normal consumer service work 25 of the kind that you heard Denise Briddell explain. To respond to real injuries with 881 CLOSING ARGUMENT / NEWMAN 1 You have seen that TransUnion is committed to consumers 2 and tries to make things easy, easier for them in a system that 3 we all depend on to get credit quickly and to, you know, go 4 into a car dealership and to comply with all sorts of laws 5 while still maintaining security. 6 You have heard no evidence of anyone in this class who was 7 denied credit or had any transaction delayed because of 8 TransUnion's delivery of an OFAC result. 9 shown you that the Ramirez family got its car at the same time, The evidence has 10 at the same price, and on the same financial terms as they 11 would have even if no OFAC data had been delivered by 12 TransUnion at all. 13 hardship or of even inconvenience to any class member as a 14 result of the normal screening process. 15 16 17 You have heard no evidence either of As you remember, having an effective screening process helps us all move efficiently through that metal detector. And by the way, it's called a metal detector, not an 18 intent detector. 19 that the person going through the machine is up to no good. 20 is just a signal to the end user, the human being using the 21 machine, to take further steps before clearing the subject. 22 And just as with the metal detector, even when we beep, we 23 usually get through without incident. 24 25 When the machine beeps, that does not signal It The evidence has shown you from Mr. Sadie and others that even when a Name Screen Alert has been delivered, the 882 CLOSING ARGUMENT / NEWMAN 1 transaction is typically clear -- is typically cleared with 2 minimal impact on the consumer, and you have seen no evidence 3 otherwise. 4 And for the large number of class members who never had 5 any reports sold about them at all, there could have been no 6 negative impact. 7 Ladies and gentlemen, Mr. Soumilas would have you believe 8 that unless TransUnion can achieve perfection, that it should 9 not sell any Name Screen at all. But that is not the legal 10 standard that you heard Judge Corley instruct you. 11 standard you have heard is reasonable procedures. 12 must prove to you, and plaintiff must prove it to you by a 13 preponderance of the evidence, both that the law of reasonable 14 procedures was violated and that it was violated willfully. 15 The legal Plaintiff But let's just suppose they are right and TransUnion 16 should be out of this business entirely. 17 people? 18 thing, like TransUnion, stops offering the solution to lenders 19 who still must screen? 20 is not going away. 21 What is left for What is left if a company that tries to do the right The Patriot Act is not going way. OFAC The SDN list is not going away. What happens to that line of hundreds of thousands of 22 people outside the metal detector waiting to be screened? 23 Everyone must be screened, even the President of the United 24 States. 25 We submit to you that TransUnion's manner of screening is 883 CLOSING ARGUMENT / NEWMAN 1 reasonable, is humane and does offer ways to help consumers 2 that are better than other things that are out there. 3 And this relates to the second thing I said I would prove 4 you to and which the evidence has proven to you, the ways that 5 TransUnion tried to improve the hit rate. 6 Mr. O'Connell explain to you how he got the hit rate to the 7 lowest that was technologically feasible at the time. 8 9 You heard You remember Mr. Ferrari testified that he would be bothered if there was a hit rate above 20 percent. TransUnion 10 was never anywhere near that. 11 hit rate from the Accuity product was 5 percent. 12 moreover, you have heard Mr. O'Connell's testimony that his 13 decision and efforts to force Accuity to drop its Synonyms 14 table got the hit rate well below one-half of 1 percent. 15 You heard that the off-the-rack And, That effort did not make Mr. O'Connell a popular person 16 with Accuity, but as he explained to you, he believed in good 17 faith that was the right thing to do for consumers. 18 Mr. O'Connell's testimony proves to you that he wanted to obey 19 the Fair Credit Reporting Act and that he did not willfully 20 violate it. 21 consumers, and that he did the best he could to achieve that. 22 The evidence has shown you consistent and effective You saw him and you know he wanted to help 23 efforts to get the hit rate down while still achieving the 24 security needs required by the USA Patriot program and helping 25 lenders meet their compliance and security responsibilities. 884 CLOSING ARGUMENT / NEWMAN 1 You have heard evidence that the off-the-rack hit rate 2 delivered by the Accuity product was 5 percent, but that even 3 before the Cortez ruling came out from the Third Circuit, 4 during that period 2007 to 2010, Mr. O'Connell used the rules 5 feature to get the hit rate under 1 percent. 6 forcing Accuity to drop Synonyms, got the hit rate well under 7 one-half of 1 percent. 8 period, when, you know, Mr. O'Connell was still devoted to the 9 concept of continuous improvement and after the class period And then by And then later when -- after the class 10 when TransUnion developed its post-screen solution to the 11 complexity of date of birth problem, it got the hit rate even 12 lower. 13 14 15 Mr. O'Connell's testimony was not disputed. It was not disputed. Mr. Ferrari testified to you that he had no knowledge of 16 what was the state of the art in 2011, which is the class 17 period here. 18 after the end of the class period in an effort to improve 19 things further do not prove that TransUnion willfully failed to 20 use any known technology during the class period. Similarly, studies that TransUnion conducted 21 That other bureaus did not return data on Mr. Ramirez 22 proves nothing about how their technology actually works, what 23 were their procedures or whether across a large population it 24 would have delivered more or fewer results. 25 burden of proof and plaintiffs have not put that evidence in It is plaintiff's 885 CLOSING ARGUMENT / NEWMAN 1 front of you as to what specific alternative procedures were 2 out there. 3 There is certainly no evidence that TransUnion knew of any 4 better technology. 5 been told by other bureaus they were doing something better. 6 There is no evidence that TransUnion had Plaintiff has the burden of proof here and there is no 7 evidence that in 2011 anyone at TransUnion knew any better way 8 to deliver a lower hit rate overall. 9 willfulness. 10 There is no evidence of But what we do know -- and, again, the evidence here was 11 not disputed. 12 complained that TransUnion's hit rate was lower than others. 13 And we also know that when TransUnion specifically informed 14 OFAC of its hit rate, we know that TransUnion -- What we do know is that bank examiners 15 35, please. 16 We also know that when TransUnion informed OFAC of its hit 17 rate, that OFAC never came back to TransUnion or told 18 TransUnion to get the hit rate lower. 19 one branch of the Treasury, OFAC. 20 too low for the bank examiners and auditors at the OCC, a 21 different branch of the Federal Treasury. 22 It was low enough for And at the same time it was When two different parts of the same federal agency cannot 23 seem to speak with a consistent voice on what the law is, how 24 is it fair to say that TransUnion willfully violated that law? 25 Where is there proof of an objectively unreasonable view of the 886 CLOSING ARGUMENT / NEWMAN 1 2 law? But what about date of birth? What about date of birth? 3 Why not do more with date of birth? 4 asked before -- throughout the course of the trial, and you 5 know the answer because you have seen the evidence of the 6 answer. 7 descriptor technology could not employ date of birth. 8 fact, you would risk hitting lots of other people. 9 different technology, a post-screen technology, had to be 10 11 That question has been The evidence has shown you that the -- that a stop That, in And so a developed. The evidence has shown you that this was not the state of 12 the art in 2011 and that it is not even mandated today. 13 Mr. Ferrari did not know if anyone was using date of birth to 14 screen in 2011. 15 lenders prefer interdiction software that checks name only. 16 Certainly, at the account opening phase for compliance purposes 17 so they can satisfy their bank examiners, a simple Name Screen 18 is what lenders want from their interdiction software. 19 And Mr. Sadie explained that even today most OFAC itself even today, even today, does nothing to screen 20 date of birth or even to permit a user off its website to 21 screen for date of birth. 22 website you can type in date of birth and say: 23 that don't match on the date of birth. 24 25 There is not even a place on their Reject the hits This is a search tool that anyone can use, even today, to generate as many false positives as they feel like. OFAC seems 887 CLOSING ARGUMENT / NEWMAN 1 to be discouraging use of date of birth as a screening 2 criteria. 3 bureaus did not return data on Mr. Ramirez was because they 4 were using a date of birth screen. 5 they were not because neither Mr. Ferrari nor Mr. Sadie knew 6 that anyone was. 7 by the other two of the big three you've heard plaintiff talk 8 about, surely Mr. Ferrari would have known about it. 9 Mr. Sadie would have known about it. 10 that was the technology being used. 11 You have heard no evidence that the reason the other The evidence suggests that Certainly, if this was a technology employed Surely There is no evidence that We simply don't know. The evidence is also that the market leader, Accuity, had 12 significant delays in building their compliance leading 13 product. 14 class period here. It was not even offered until after the end of the 15 You must conclude based on the evidence and based on the 16 fact that plaintiff has the burden of proof in 2011 there was 17 no effective technological solution to reduce hit rates based 18 on date of birth. 19 from both Mr. O'Connell and Mr. Brent Newman of Accuity that 20 Compliance Link was continuously delayed in spite of multiple 21 promises to bring it out earlier. 22 until after the end of the class period here. 23 You know this because you heard evidence It was not brought to market You also know that when the technology was made available, 24 it would not have been better for consumers because aspects of 25 it would have undone the consumer benefits that Mr. O'Connell 888 CLOSING ARGUMENT / NEWMAN 1 2 fought for and won when he made Accuity drop Synonyms. You also know one more reason why date of birth technology 3 was not available in 2011. 4 that the OFAC SDN list did not have date of birth information 5 on every item. 6 consumers themselves only provided their own date of birth 7 information on input only half the time. You have heard undisputed evidence Moreover, you have heard evidence that 8 More significantly, you have seen the chaotic and 9 inconsistent ways that date of birth information appeared on 10 11 the SDN list itself in 2011 and earlier. All of this presented significant computing challenges, 12 which TransUnion nonetheless tackled and studied and was able 13 to resolve after the end of the class period, in part, because 14 OFAC itself after the end of the class period improved the 15 quality and consistency of its data. 16 But the evidence has shown you that at the time of the 17 class period here, which is the time period you must consider, 18 OFAC's own data quality issues made it impossible for 19 TransUnion to reduce its hit rate further with any date of 20 birth screening technology. 21 22 23 TransUnion did not willfully violate the law by not using a technology that did not exist. Plaintiff's counsel has shown you documents from after the 24 class period that show TransUnion's efforts to tackle this 25 complex issue of computer science. TransUnion ultimately was 889 CLOSING ARGUMENT / NEWMAN 1 successful, as you know, and that fact proves to you that it 2 was not violating the law. 3 It was trying to comply. You know, a company that is trying to improve itself and 4 is trying to improve things for consumers is not willfully 5 violating the law. 6 Ladies and gentlemen of the jury, the Court has instructed 7 you that to find for plaintiff on Claim One, you must find that 8 TransUnion willfully failed to employ a reasonable procedure to 9 assure maximum possible accuracy. 10 The evidence does not show willful non-compliance. It is 11 not unreasonable to not employ a technology that does not 12 exist. 13 to use a technology that has not yet been proven to be reliable 14 or fit for its intended use. 15 It certainly is not a willful violation of the law not The evidence has shown you that TransUnion and, in 16 particular, Michael O'Connell had a mindset of continuous 17 improvement. 18 described as the best people on his team, another fact that was 19 not contradicted by any evidence in this case, the best people 20 on his team continued to work on developing a date of birth 21 post-screen, and they made it happen. 22 Even after the class period, he and who he There is no evidence of any willful violation of anyone's 23 rights during the class period. 24 undisputed evidence shows you that Mr. O'Connell was working 25 actively to protect consumers. To the contrary, the 890 CLOSING ARGUMENT / NEWMAN 1 Now, let's move on to the third thing that TransUnion did 2 when it received a ruling from the Third Circuit Court of 3 Appeals that Name Screen data should be disclosed to consumers 4 as data subject to the Fair Credit Reporting Act. 5 quite simply, complied. TransUnion, 6 You have heard testimony from Steven Katz about his 7 efforts to communicate this information clearly and in a 8 friendly fashion. 9 Now, plaintiff says that Mr. Katz's letter was not 10 accurately described in the letter to OFAC from February 2011, 11 which was Exhibit 35. 12 letter does everything OFAC was told it did. 13 consumer that he's considered a potential match. 14 what OFAC Name Screen searching is. 15 they can get more information from OFAC itself. 16 consumers to a dedicated telephone number and mailing address 17 that they can use to learn more about OFAC and how to block 18 future deliveries of data. 19 This statement is simply incorrect. The It notifies the It explains It tells consumers how It directs And as Ms. Briddell explained to you, this was always 20 delivered regardless of the channel by which someone came to 21 TransUnion. 22 You heard -- you know, you heard Mr. Walker explain that 23 there is a walk-up window; that there is online; that there's 24 mail; that they send out in Braille. 25 that if a consumer sought their disclosure, that OFAC letter Ms. Briddell explained 891 CLOSING ARGUMENT / NEWMAN 1 would get out to the consumer. 2 heard on that. 3 That's the evidence you've Now, going back to Mr. Katz's letter and why that does not 4 reflect willful non-compliance with the law. 5 lot of arguments about how someone might have made different 6 word choices. 7 differently. 8 life that you have asked someone else to look at. 9 all. You have heard a Someone might have written something Think about anything you had ever written in your Anything at It is impossible to look at something someone has written 10 without wanting to comment and make suggestions and move things 11 around. 12 there. 13 Oh, move this paragraph here, move that paragraph The fact that the plaintiff's counsel has argued that 14 different word choices have been made does not mean that 15 TransUnion violated the law. Nor does it show that TransUnion 16 willfully violated the law. Again, this shows good faith, not 17 bad faith. 18 Certainly, nobody at the Federal Trade Commission or the 19 Consumer Financial Protection Bureau or any other government 20 agency told TransUnion to write out the information in Exhibit 21 3 any differently. 22 Also, importantly, you have seen the evidence of the data 23 which came in from Ms. Briddell earlier today showing that the 24 communications were effective and that consumers responded to 25 them. And that TransUnion helped consumers when they did 892 CLOSING ARGUMENT / NEWMAN 1 2 respond. The evidence shows you that TransUnion's people tried to 3 follow the Cortez ruling as best they understood it and that 4 they did not violate the law willfully. 5 Because TransUnion did effectively communicate, many 6 consumers were able to initiate disputes before seeking credit 7 and to have themselves pre-cleared to prevent future issues. 8 And as mentioned before, for the vast majority of class 9 members, no OFAC data was delivered about them. 10 More useful information in that letter. The information 11 in that letter helped consumers understand OFAC so that if 12 someone else screened them, they would be better equipped to 13 respond. 14 some other technology and saw the consumer's name as a 15 potential match, the consumer would say: 16 that OFAC thing. 17 I'm not the guy. 18 If someone had gone to that OFAC search tool or used Oh, I know all about Look at this letter I got from TransUnion. It at least would be something to help them expedite the 19 clearing process if their lender had someone like Mr. Burns, 20 using some other system, who didn't know what to do. 21 could at least show something from TransUnion to show that 22 clearing was possible. 23 They I don't know if you know anyone who's had surgeries on 24 their knees or their hips where maybe there is metal in their 25 body. And when -- every time they go through that metal 893 CLOSING ARGUMENT / NEWMAN 1 detector that machine is going to beep. 2 will just carry something with them. 3 say: 4 thing is going to go off. 5 scan the knee or scan me, it will be fine. 6 Many of those people So they approach, they Just so you know, I've got this thing in my knee. Take me off to the side. Very, very similar thing. Your You can If you happen to have a name 7 that happens to be similar to someone who is an SDN, someone is 8 going to flag you at some point. 9 least if you are educated, as TransUnion has educated It's going to happen. And at 10 consumers, consumers have a little bit more information to help 11 themselves. 12 13 14 15 16 Again, this is proof of good faith. It is not proof of a willful violation. Likewise, the manner of sending the information to consumers did not willfully violate the law. As Mr. Walker and as Mr. Lytle explained to you, 17 TransUnion got the word out to consumers in a timely fashion 18 with the print vendor technology that was available. 19 Mr. Walker explained that everyone in the class got their 20 Summary of Rights and that the OFAC information was always 21 mailed within a business day of the other information, and 22 often within hours. 23 TransUnion was not able to deploy a merged file technology 24 immediately for the reasons both Mr. Lytle and Mr. Walker 25 explained to you. The short transitional period from January 894 CLOSING ARGUMENT / NEWMAN 1 to July 2011 did not impair communication of the information 2 that was needed. 3 You have seen no evidence that anyone at TransUnion sought 4 to conceal information from any class member, nor have you 5 heard any evidence that profit motive or concern about costs 6 led to any delay. 7 gentlemen, that the technical challenges were genuine and were 8 driven not simply by the size of TransUnion or the large number 9 of contacts they have with consumers, but also because of 10 TransUnion's commitment to consumers to deliver accurate 11 information in whatever format the consumer wanted, whether 12 that was in Spanish, in Braille, in large print or in an audio 13 format. 14 The evidence has shown you, ladies and This evidence does not show willful failure to obey the 15 law. 16 good faith to get consumers the information they needed. 17 have seen no evidence that what Steven Katz wrote or what Sean 18 Walker sent were unhelpful or ineffective. Rather, the evidence shows you that TransUnion acted in You 19 Mr. Walker, in particular, explained to you about how 20 TransUnion makes ongoing efforts toward continuous improvement. 21 Adapting the format over the years to evolve it to be more 22 consumer friendly, offering alternative format disclosures, 23 working on an effort to improve the underlying backbone 24 technology to improve quality control efforts, making sure that 25 print vendors are audited and their records reconciled to 895 CLOSING ARGUMENT / NEWMAN 1 assure that everything that needs to get to the consumers 2 actually gets to the consumers. 3 He has explained his job to you and his evidence, which 4 was not disputed. 5 faith and violated no laws. 6 His evidence shows that he acted in good On to the fourth thing, improvements to the consumer 7 relations process. 8 today about all the efforts TransUnion took after Cortez, after 9 it received word that the FCR procedures would need to apply to You heard from Denise Briddell earlier 10 OFAC Name Screen. 11 consumer relations staff to help consumers with this issue. 12 You have heard of her efforts to train her The procedures that she and TransUnion implemented were 13 both reasonable and effective. 14 Mr. Ramirez's own issue was fully resolved and quickly resolved 15 on the basis of a simple note. 16 Ms. Briddell had empowered people at the consumer relations 17 level to use their discretion to help consumers when it seemed 18 to be the right thing to do. 19 And you also know that Because people like The note is -- the signature is indecipherable. 20 thing on there is the FIN number. 21 that, the operator was able to help Mr. Ramirez. 22 is proof of good faith. 23 of the law. The only And just on the basis of Again, this It's not proof of a willful violation 24 You have also heard testimony that the Fair Credit 25 Reporting Act allows consumer reporting agencies only 30 days 896 CLOSING ARGUMENT / NEWMAN 1 to address all disputes, no matter what, even scattershot 2 disputes that are made in bad faith out of an effort to knock 3 truthful information off of credit files. 4 TransUnion beat that 30-day deadline significantly with 5 respect to Mr. Ramirez. 6 Mr. Ramirez admit that with one simple letter he never had any 7 OFAC problem ever again. 8 9 And, ladies and gentlemen, you heard And even before the Third Circuit ruled in 2010, you heard evidence of TransUnion's efforts, primarily with Ms. Gill, to 10 help consumers. 11 period here TransUnion's consumer relations procedures were 12 inappropriate. 13 There is no evidence that during the class You have met Ms. Briddell and she has explained her hard 14 work in this area and the work of her team. 15 willfully violate the Fair Credit Reporting Act. 16 She did not Now, please, let's talk for a moment about what it means 17 to willfully violate a law. 18 children or who once were children know there is a difference 19 between not getting something right and being willfully 20 disobedient. 21 while drying dishes and willfully smashing it to the floor out 22 of anger at having been given the chore. 23 different behaviors with visibly different manifestations. 24 all know this instinctively. 25 Those of us who spend time with There is a difference between dropping a plate Those are very The evidence here shows no willfulness of that kind. We But 897 CLOSING ARGUMENT / NEWMAN 1 there is another kind of willfulness, and this is plaintiff's 2 primary argument. 3 risk. 4 Daniels in your hand. 5 toward the crowd. 6 7 8 9 Extreme recklessness putting others at grave Careening down the highway with an open bottle of Jack Closing your eyes and firing a gun Judge Corley has instructed you that reckless disregard means: "Action entailing an unjustifiably high risk of harm that is either known or so obvious that it should be 10 known." 11 But there is no evidence of harm here and no evidence of 12 risk of harm. 13 it was violating the law or risking harm to consumers. 14 Nor is there any evidence that TransUnion knew The evidence shows you the exact opposite. The evidence 15 shows you that TransUnion's people were working hard to protect 16 consumers. 17 Finally, plaintiff has presented no evidence that any of 18 this was obvious to anyone. 19 OFAC and OCC, who provided conflicting information as to 20 whether more or fewer hits should be delivered. 21 guidance at all, much less obvious guidance, come from the 22 Federal Trade Commission or the Consumer Financial Protection 23 Board, which are the two agencies responsible for the Fair 24 Credit Reporting Act itself. 25 It certainly was not obvious to Nor did any Ladies and gentlemen, you have met TransUnion's people 898 CLOSING ARGUMENT / NEWMAN 1 during the course of this trial. 2 You have met them. 3 by consumers and to help them anyway they can. 4 They are not reckless people. They are careful people, trying to do right With your permission, let's think for a moment about what 5 Mr. Soumilas, at the very beginning of the case, told you the 6 case was about. 7 He said the case was about reputation and that it is about 8 profits over people. 9 concepts do matter. 10 11 The evidence has proven that these Although the evidence has also proven to you that they do not matter in the way that he expected. This case is about reputation, ladies and gentlemen. It 12 is about reputation. 13 class members. 14 sold about them at all. 15 have heard no evidence that any of them actually suffered any 16 reputational harm in the form of a denied or delayed credit 17 application. 18 But it is not about the reputation of Fewer than one-quarter of them had any reports Of those who had reports sold, you To the contrary, by receiving information about OFAC and 19 access to TransUnion's consumer relations system and to people 20 like Ms. Briddell, they were able to learn about OFAC and get 21 themselves pre-cleared to avoid any future issues based on the 22 fact that they truthfully had names that were like names of 23 other people on the list. 24 25 So how is this case about reputation? you that this case is about reputation. Because I submit to This case was filed in 899 CLOSING ARGUMENT / NEWMAN 1 2012, about a year after Mr. Ramirez's situation was corrected 2 and after the family's Nissan Maxima had been driven for about 3 a year. 4 Now, for the past five years, however, TransUnion's people 5 have suffered under a cloud to their reputations. 6 opportunity to lift that cloud and to set them free. 7 the opportunity to say that they did the best they could with 8 what they knew and what they had. 9 ladies and gentlemen, to confirm that they are not willful law 10 breakers. 11 reputations. 12 You have the You have You have the opportunity, You have the opportunity to restore their And what about profits over people? Again, the evidence 13 is not what Mr. Soumilas promised you on our first day of trial 14 here together. 15 shortcuts to juice up its profits. 16 TransUnion's revenue is unaffected by the hit rate. You have heard no evidence that TransUnion took The evidence is that 17 If anything, Michael O'Connell placed profits in jeopardy 18 by pushing back against the market leader, Accuity, to make it 19 drop the Synonyms table and to persist in that position when 20 major bank examiners were pushing lenders to drop the 21 TransUnion product because it delivered fewer hits. 22 Mr. O'Connell, with the support of his team and no 23 opposition within the company, did what he did for the good of 24 consumers and persisted with that. 25 You also have heard from Mr. Walker that cost 900 CLOSING ARGUMENT / NEWMAN 1 considerations had nothing to do with how the new OFAC letter 2 was to be distributed. 3 effectively and compliantly. 4 The goal was to get it out quickly, No profits over people there. And since almost all of TransUnion's file disclosures are 5 sent at no charge, either as part of the consumer's right to 6 their one free report per year, or to help people who are 7 looking for work, or to help people who are on welfare, there 8 is no profit motive there either. 9 The information was sent almost always for free and out of 10 a desire to help. 11 in the courtroom with us today. 12 is to help consumers. 13 entire working day is spent helping consumers with their credit 14 health. 15 Her entire job at TransUnion She has a full team of people who's Is Ms. Briddell a profits over people person or is she a 16 people person? 17 You have met her. 18 And you just met Ms. Briddell, who is still Ladies and gentlemen, she's a people person. You know she acted in good faith. You have seen evidence in this case about and from the 19 people of TransUnion. 20 reputations for professionalism and good faith in your hands. 21 You, ladies and gentlemen, are their own guardians now. The good people who have placed their 22 When you go home to your families and they ask you: 23 did you do in your jury service, please hold your heads high 24 and say to them: 25 tried their best. What I restored the reputations of good people who 901 REBUTTAL ARGUMENT / SOUMILAS 1 Thank you very much, ladies and gentlemen. 2 3 THE COURT: Thank you. Mr. Soumilas? 4 MR. SOUMILAS: 5 Thank you, your Honor. REBUTTAL ARGUMENT 6 MR. SOUMILAS: Ladies and gentlemen, under our rules, 7 the court and the custom, the person bringing the lawsuit gets 8 the last word. 9 now to comment on some of the arguments that you heard from So that's why I get a few more minutes with you 10 TransUnion. 11 them and, also, on a few things that you have not heard during 12 their closing statement. And I will focus on a few things you heard from 13 Let me begin with this notion that TransUnion employees, 14 like Ms. Briddell and Mr. Walker, are in willful violation of 15 the law. 16 charge. 17 this case is the Fair Credit Reporting Act. 18 applies to consumer reporting agencies. 19 were not sued. 20 We said the company did, the people they answer to. 21 That is not part of this case. It's not a jury These are not consumer reporting agencies. The law in And it only Not to people. They We didn't say they willfully violated the law. We all have bosses. We all have to go to work, and 22 occasionally if your job requires it, you've got to fly in and 23 answer tough questions that you would rather not answer. 24 We have no problem with Ms. Briddell or Mr. Walker or 25 Mr. Katz or other TransUnion employees who had to come here and 902 REBUTTAL ARGUMENT / SOUMILAS 1 answer questions. Nobody ever said there was a willful 2 violation of law. The issue is whether the consumer reporting 3 agency at the high levels, so the people making the 4 decisions -- the Legal Department, head of Compliance, the 5 business managers -- made decisions that are in willful 6 non-compliance. 7 Now, when you don't have a very good defense to a case, 8 you've got to talk about something else. 9 said TransUnion, the company, violated the Fair Credit 10 Reporting Act. 11 Judge Corley in this case. 12 And the law that we That is the only law you will hear from The questions that I went through on your verdict form 13 come straight out of that law. 14 beginning, well before 2002 when this product rolled out. 15 of the TransUnion witnesses have been with the company for 20 16 years and they knew about the FCRA and the standards of 17 accuracy for 20, 30 years. 18 The law was in place from the They didn't need to wait for FINRA or the SEC or the OCC 19 or some other regulatory agency to tell them anything. 20 knew it, from the get-go. 21 instruction from this Court about other laws, because they 22 don't apply. 23 Some They You will not hear a single So Mr. Newman is talking about other standards, because 24 he's trying to shift your attention away from the actual legal 25 standard that you must enforce in this case. 903 REBUTTAL ARGUMENT / SOUMILAS 1 Now, TransUnion doesn't appear to also have much regard 2 for the law of class actions. 3 action. 4 appropriate class representative. 5 common and people are similarly situated. 6 here. 7 from Judge Corley or anybody else about five people coming in 8 or 10 people coming in. 9 come in, they would say: 10 This is a certified class That means Mr. Ramirez is typical. He's the And that the claims are That's why we're There is no legal standard that you're going to hear And if you -- if you had five people Well, where are the other 8,000? You know that. 11 The issue is were the procedures reasonable in ensuring 12 accuracy. 13 to every single person in this class. 14 Were the disclosures clear and adequate -- excuse me, clear and 15 accurate? 16 And they applied to every single person. 17 evidence that ties this case together when it's a class action. 18 And it was the name only matching logic that applied That's the evidence. And did they inform people of their rights to block? That's the common And Mr. Newman, very careful with his language, he tells 19 you: 20 applied for credit to have their reputations harmed. 21 all right? 22 is during a six-month period, from June -- sorry, January 2011 23 to July 2011 about 25 percent of the class population applied 24 for credit. 25 day. Well, only about a quarter of these people, 1,800, even Not so, The evidence of the records through our stipulation That's because people don't apply for credit every Not everybody needs a car loan or a credit card all the 904 REBUTTAL ARGUMENT / SOUMILAS 1 2 time. We don't know the data for the next six months and the six 3 months after that and the year after that. 4 name only procedure was the same. We know that it attacked 5 every single one of these people. So the fact that we have 6 some select evidence shows that there is a risk of harm, a 7 substantial risk of harm, to 25 percent only over a six-month 8 period. 9 But we know the Yet, there is other risk of harm as well that you heard 10 testimony about. Mr. Ramirez canceled his vacation. 11 could be misled. Who would possibly think -- seriously, if 12 anybody came in here -- do you expect anybody to come in here 13 and tell you: 14 that they linked me to the terrorist list. 15 some benefit from it. 16 argument makes no sense. 17 People Well, I thought I was benefited by TransUnion I was happy. I got No one is going to tell you that. That Now, TransUnion also says, you know, that they rolled up 18 their sleeves -- I don't know exactly what Mr. Newman said. 19 They got to work after Cortez. 20 2007. 21 paid no respect to that jury whatsoever. 22 that they wanted to hear from the Court of Appeals, roll the 23 dice that they were going to reverse that jury verdict. 24 what happened. 25 Okay. Cortez was decided in That jury came back and told them they were wrong. All right? They They seemed to think They didn't need to wait. There is no That's 905 REBUTTAL ARGUMENT / SOUMILAS 1 requirement. 2 for a Court of Appeals to rule. 3 The law is the Fair Credit Reporting Act. 4 Okay. You will not hear any law about having to wait The law was already in place. So what's going on here? What's going on is that 5 they just hedged their bets. 6 get the case reversed and they didn't. 7 been the responsible thing to do in the interim? 8 they stopped sales and if they think they are going to get that 9 decision reversed, that jury reversed, then they get it They thought they were going to 10 reversed and back to business. 11 selling the product. 12 But what would have How about Other than stop, they kept on And how about they get to work to figure out their 13 compliance methods in the interim? 14 didn't go their way, they were ready to act right way. 15 they didn't do that either. 16 So if an appeals decision Well, At the end of the day, ladies and gentlemen, August 2010 17 has no significance to this case. 18 They know what the problem is here. 19 It's the FCRA, and they are not complying with it, and they are 20 not doing so willfully. 21 There is a pile of notice. They know what the law is. Now, Mr. Newman also talked about the approved format of 22 credit reports, like the ones we saw from Dublin Nissan. 23 case is not about the approved format. 24 substance of those reports. 25 them. This This case is about the It's about those terror alerts on Format doesn't matter. 906 REBUTTAL ARGUMENT / SOUMILAS 1 He also talked about no effective technological solutions. 2 I think he even accused us in his opening of us being against 3 technology or automation. 4 technology and automation as much as everybody else is. 5 we're more in favor of technology that works, that gets the 6 right result like Experian and Dealertrack's technology. 7 And we aren't. We're in favor of But And more so than that, we're in favor of abiding by the 8 law. 9 This is no referendum on technology. And the law is what you need to enforce in this case. The law is, did they 10 follow reasonable procedures to assure maximum possible 11 accuracy? 12 Automation and technology are not part of the law. You will not hear Judge Corley mention those words because 13 it's not part of the law. 14 part of the solution, great. 15 intervention as well, terrific. 16 accuracy. 17 That's the law. But if automation and technology is And if it requires some human The goal is to assure That's what you must enforce. Now, I want to close by mentioning a few things that you 18 did not hear from Mr. Newman, quite conspicuously I think. 19 you should ask yourself why you didn't. 20 remember at the beginning of the case, but he put up all these 21 faces of people who are going to come in here and testify for 22 you. 23 24 25 You remember Ms. Prindes? And I don't know if you He said she was going to come here and explain the technology. Where was she? Do you remember Ms. Cronshaw? She was going to be the 907 REBUTTAL ARGUMENT / SOUMILAS 1 most interesting part of the case, according to Mr. Newman. 2 She didn't come in at all. 3 4 They promised you these witnesses and they didn't deliver them. 5 Think about why they didn't. Now, did Mr. Newman tell you anything that even a single 6 credit report for any member of the class was accurate? 7 that's what the case is about, right? 8 accurate? 9 Ever. Why didn't he tell you: inaccurate. 11 bureaus are supposed to sell. 12 right. 13 Did they get it We got it right. He doesn't want to talk about that. 10 And Once. Because it's all And inaccurate information is not what the credit It's not reasonable. It's not Did he tell you that there were any instructions ever to 14 consumers about their right to dispute and block? 15 You know why? 16 of this case is. 17 Commission or something else he'd like to talk to you about. Because it's not there. Nothing. And that's what the law Not FINRA, not the Securities and Exchange 18 And did he tell you that there was any evidence that 19 TransUnion lacked knowledge or understanding of the Fair Credit 20 Reporting Act, the very standards that are your verdict form? 21 No. 22 standard has been in place throughout this time and they didn't 23 abide by it. 24 25 Because they knew it. They knew it from the get-go. This TransUnion, ladies and gentlemen, has conceded no mistakes. Has made no apologies. And that is because they 908 FINAL JURY INSTRUCTIONS 1 2 know that their conduct is willful. Your verdict should be for plaintiff in the case and 3 against TransUnion. 4 Thank you. 5 THE COURT: 6 7 Thank you. FINAL JURY INSTRUCTIONS THE COURT: So, ladies and gentlemen, I spent the past 8 week telling you not to talk about the case and now I'm going 9 to order you to talk about the case. 10 But before you begin your deliberations, you must elect 11 one member of the jury to serve as your presiding juror. 12 presiding juror will preside over the deliberations and serve 13 as the spokesperson for the jury in court. 14 diligently strive to reach agreement with all of the other 15 jurors, if you can do so. 16 each issue submitted to you. 17 The You shall Your verdict must be unanimous as to Each of you must decide the case for yourself, but you 18 should do so only after you have considered all of the 19 evidence, discussed it fully with the other jurors and listened 20 to their views. 21 unanimous verdict, but, of course, only if each of you can do 22 so after having made your own conscientious decision. 23 It is important that you attempt to reach a Do not be unwilling to change your opinion if the 24 discussion persuades you that you should. 25 decision simply because other jurors think it is right or But do not come to a 909 FINAL JURY INSTRUCTIONS 1 change an honest belief about the weight and effect of the 2 evidence simply to reach a verdict. 3 Some of you took notes during the trial. Whether or not 4 you took notes, you should rely on your own memory of the 5 evidence. 6 not be overly influenced by your notes or those of other 7 jurors. 8 9 Notes are only to assist your memory. You should And you will have in the jury room the exhibits admitted into evidence, except for Exhibit 8-B, which is the class list. 10 We are not providing you with the class list because it 11 contains the class members' personally identifiable 12 information. 13 If it becomes necessary during your deliberations to 14 communicate with me, you may send a note through the court 15 staff signed by anyone or more of you. 16 should ever attempt to communicate with me except by a signed 17 writing. 18 anything concerning the case except in writing or here in open 19 court. 20 No member of the jury I will not communicate with any member of the jury on If you send out a question, I will consult with the 21 lawyers before answering it, which may take some time. 22 should continue your deliberations while waiting for the answer 23 to any question. 24 including me, how the jury stands, whether in terms of vote 25 count or otherwise, until after you have reached a unanimous You Remember, you are not to tell anyone, 910 PROCEEDINGS 1 verdict or have been discharged. 2 count in any note to me. 3 Do not disclose any vote A verdict form has been prepared for you. After you have 4 reached unanimous agreement on a verdict, your presiding juror 5 should complete the verdict form according to your 6 deliberations, sign and date it, and advise the Court that you 7 are ready to turn to the Court. 8 Thank you. And Ms. Means will escort you have in and talk 9 to you a bit about scheduling. 10 Thank you very much. 11 (Jury exits the courtroom at 2:12 p.m.) 12 THE COURT: Okay. Why don't we take a 15-minute 13 recess and then we can address, in case it's necessary, the 14 punitive damages phase, including what the verdict form would 15 look like. 16 17 18 MR. SOUMILAS: Yes, your Honor. (Whereupon there was a recess in the proceedings from 2:13 p.m. until 2:34 p.m.) 19 THE COURT: 20 MR. SOUMILAS: 21 THE COURT: All right. Are we ready to continue? I think so. Okay. Let's start with the -- should 22 there be a punitive damages phase, what the evidence is. 23 is a stipulation. 24 25 MR. SOUMILAS: There Concerning that, I think that we would just move into evidence, and I have a slide for that that I 911 PROCEEDINGS 1 would like to display as to the jury -- 2 THE COURT: 3 MR. SOUMILAS: 4 says, approximately 1.5 billion. Okay. 5 THE COURT: 6 MR. SOUMILAS: 7 THE COURT: 8 MR. SOUMILAS: 9 All right. That's the only other evidence I would We would oppose that request for judicial MR. NEWMAN: notice. And Mr. Luckman -THE COURT: 13 MR. LUCKMAN: 15 Well, and the other -- And then the judicial notice. 12 14 And that's it? seek to introduce. 10 11 -- that just says what the stipulation than it is. Okay. Who has first-hand knowledge. I don't want it to be any more public I didn't speak very well. Your Honor, two things. The first is that it's not 16 something that you can take judicial notice of. 17 of a party at a closing. 18 were cited, they show pleadings. 19 other orders. 20 bifurcated case and -- about the parts of the case that have 21 nothing to do with matching. 22 THE COURT: 23 agree with you at all if -- It's not a pleading. It's argument The cases that There are other decisions, It's simply comments made to a jury in a That's the question. 24 MR. LUCKMAN: 25 THE COURT: Because I don't At all? For example, in argument if it was the 912 PROCEEDINGS 1 same claim and they said, you know: 2 You don't need to punish you. 3 the same argument to them here, I think it absolutely would be 4 relevant and would come in. 5 noticeable. 6 made on behalf of the corporation. 7 8 And then you stood up and made So -- and I think it's judiciously Argument or not, it's an argument that was being But that's the question that I'm interested in, and what -- what it was in reference to. 9 MR. LUCKMAN: 10 completely different. 11 We've learned our lessons. I agree with you. It's something First of all, it's different because the only thing that 12 we're saying you don't have to send a message with the big 13 numbers about the willfulness claims which had to do with the 14 failure to disclose and failure to note the dispute, which 15 isn't part of this case, and a failure to dispute. 16 at a time when TransUnion did none of those things. 17 does all of those things. 18 different. 19 20 21 22 23 24 25 THE COURT: And it's -It now So it's factually entirely Well, let's focus. One of them does overlap, the failure to disclose. MR. LUCKMAN: Well, then they refuse to disclose and it -- and it was huge to the jury. THE COURT: They didn't tell her. But from 2007 to 2010 they still didn't disclose. MR. LUCKMAN: I mean, outside of the class period, 913 PROCEEDINGS 1 they did not disclose, correct. 2 I don't think we're to punish people outside the class period. 3 THE COURT: Outside of the class period. I guess I'm just saying if the argument 4 was we've learned our lesson, there is an argument to be made 5 that wasn't the case. 6 to change, and that wasn't the case because they then waited 7 for the appeal. 8 9 MR. LUCKMAN: That makes an inference that we're going Well, the lesson was learned after the Court of Appeals ruled. It was subject -- and it's not 10 something you would say in a closing to a jury, but you would 11 if you thought it was going to be used later against your 12 client; that subject to your ruling and subject to an appeal, 13 our appeal rights that we have. 14 take an appeal to the Third Circuit. 15 message is sent. 16 effective closing. 17 listen, but we're going to appeal. As a matter of course, we can You know, certainly the But I don't think that would be a very You know, you can try real hard and we'll 18 And that's all Mr. Soumilas wants to argue at this point, 19 is, you know, they are going to try real hard and they didn't. 20 They waited until the appeal ran its course. 21 that they didn't listen to that jury. 22 inappropriate, and I think it would be even more inappropriate 23 to say that they told that jury that they cared and they really 24 didn't, because they appealed it. 25 Court of Appeals spoke, which is how the law works. He's already said And I think that's Didn't respond until the That's how 914 PROCEEDINGS 1 courts work. 2 THE COURT: 3 MR. LUCKMAN: Well, not necessarily. I think that if the case had been 4 reversed, I think that he couldn't make this argument, that -- 5 and bring to another jury that we had promised we would do 6 something and never did. 7 8 THE COURT: We wouldn't be here at all if it was reversed. 9 MR. LUCKMAN: Likely not. But the thing is that on -- 10 there is a little -- they are conflating a little bit the 11 language that referred to matching, and that was a negligence 12 finding. 13 THE COURT: No, no, no. I understand that it didn't 14 have anything to do with the matching because the punitive 15 damages -- 16 17 18 19 20 MR. LUCKMAN: They are just trying to keep numbers down. THE COURT: Well, I know why. Let me hear from Mr. Soumilas. MR. SOUMILAS: Your Honor, I don't think anything 21 could be more relevant. 22 proposing to quote on is on notice. 23 case is about, is what they knew and how they acted on that. 24 And he begins by saying there is no evidence of any prior 25 circumstance of notice of a problem with Accuity's matching What -- the language that we are This is what this whole 915 PROCEEDINGS 1 logic, and he elaborates, or name only. 2 be more on point. 3 4 THE COURT: But the punitive damages phase wasn't about that claim. 5 MR. LUCKMAN: 6 MR. SOUMILAS: Correct. Except this is what counsel says to the 7 jury, first of all. 8 follow-up will be difficult. 9 10 11 I mean, nothing could And then he follows up with: And the And that relates to the exact disclosure claim, which is the issue here, your Honor. And then the rest of the language is all about notice. 12 They know. 13 message is sent. 14 think a corporation can get up in open court and say those 15 words and then take no action whatsoever for years, and then 16 just say, well, we didn't mean them. 17 They don't want to continue doing this. The The judge told him that it's wrong. I mean, that's relevant. I don't It's part of the record, and 18 it's part of why this jury should consider it at a punitive 19 phase because that's what punitive damages are about. 20 straight out of the punitive damages argument in Cortez where 21 they said punitive damages are not appropriate. 22 not be allowed to say that again. 23 MR. LUCKMAN: 24 THE COURT: 25 This is They should It's only a portion of the -- Well, you're not saying they shouldn't be allowed to say that punitive damages are not appropriate. 916 PROCEEDINGS 1 MR. SOUMILAS: I'm sorry. I'm sorry, your Honor. 2 They could argue against what they said previously, but I 3 think the information is relevant and the jury should consider 4 it. 5 damages here again, also, but it's not unfair. 6 It's -- it could be judiciously noticed, and we think the jury 7 should consider this during the punitive phase. 8 introduce it earlier, but this is on all fours on punitive 9 damages. Of course, they are going to argue against punitive 10 11 12 13 MR. LUCKMAN: We did not I didn't understand the last thing you said. MR. SOUMILAS: punitive damages. It's on all fours because it relates to You say things like -- 14 MR. LUCKMAN: 15 MR. SOUMILAS: 16 It's relevant. On all fours. On all fours. It's completely relevant because it's about sending a 17 message, and whether a message is received and understood and 18 acted upon, and that's what punitive damages are about. 19 are about a message, your Honor. 20 21 22 MR. LUCKMAN: They Your Honor, this is not the Cortez case. The issues are different. The facts are different. What was being challenged here is two envelopes, not one. 23 What was being challenged in Cortez was we refused to disclose. 24 We refused to take your dispute. 25 not there and continue selling it. We're going to tell you it's It's a completely different 917 PROCEEDINGS 1 2 case. And what was said in the closing is you have sent the 3 message. 4 should have said: 5 client's appeal rights. 6 And I don't think it would be fair or lawful that I You have sent a message subject to my THE COURT: Well, it might not have been effective. 7 I'm not sure it was fair what you said because I'm not sure it 8 was actually that the inference you wanted them to draw is 9 different. 10 This is what I'm going to do. I'm not going to exclude 11 it, but subject to them opening the door. 12 you argue the message has been sent, then I think it's fair 13 enough for them to be able to respond: In other words, if They said that before. 14 MR. NEWMAN: 15 THE COURT: 16 MR. LUCKMAN: How about if Steven does it and I don't? 17 MR. SOUMILAS: And, your Honor, I think the same rules Understood, your Honor. Right? 18 apply. 19 connection with counsel. 20 true of them. 21 in Cortez, but I think this should -- I will not mention Mr. Luckman by name or any And I presume the similar will be They can say whatever plaintiff's counsel argued 22 THE COURT: 23 what plaintiff's counsel -- I don't think we have any evidence as to 24 MR. SOUMILAS: 25 THE COURT: Then submitted, your Honor. All right. 918 PROCEEDINGS 1 2 MR. LUCKMAN: unless the door is opened. 3 THE COURT: 4 MR. LUCKMAN: 5 THE COURT: 6 to take a break. 7 a brief rebuttal. 8 9 Nothing -- nothing is going to come in Right. Unless the door is opened -- Understood. -- which is when we'll stop. We will have I will take judicial notice and we will have Well -- I'm sorry, your Honor. MR. SOUMILAS: The door will be open when? 10 THE COURT: In their argument. And that's why I'm 11 saying you would then be given some rebuttal at that point, if 12 they open the door. 13 I'm not going to let it in now, but I do think it would be 14 fair, should they make the same argument again, for you to be 15 able to comment on the fact that they made that argument 16 before. 17 MR. LUCKMAN: Your Honor, one other point. If my 18 recollection is correct, the stipulation on Cortez does not 19 have the word "willful" in it. 20 that Mr. Soumilas argued that the Cortez jury found 21 willfulness. 22 And I am 100 percent confident And I think he should be instructed or admonished not to 23 use that word in the punitive damages phase of this case, 24 because -- and it should not have been used previously. 25 that gives me concern as well. But 919 PROCEEDINGS 1 2 MR. SOUMILAS: I'm not even sure what Mr. Luckman -- oh. 3 THE COURT: I heard you. In your closing argument you 4 said the Cortez jury found a willful violation on the 5 disclosure. 6 evidence. 7 to the negligence or the willful finding. 8 9 10 11 And while that's, in fact, true, it is not in The stipulation does not include that distinction as MR. SOUMILAS: Well, I don't even remember that I said that, but I'm going to have to think a moment as to whether it's in evidence. Didn't we examine Ms. Gill about that? 12 THE COURT: 13 anything about the opinion. 14 None of their witnesses seemed to know MR. SOUMILAS: Well, will I get a moment of rebuttal 15 in any event, even if they don't open the door on this issue of 16 Cortez? 17 THE COURT: 18 MR. SOUMILAS: 19 THE COURT: 20 MR. LUCKMAN: Possibly, yeah. I'd like two minutes on that. Two minutes, sure. Your Honor, which is fine, but not to 21 say things that shouldn't have been said in the original. 22 mean, this willfulness should not have been said, cannot be 23 said. 24 25 I Rebuttal, fine, two minutes. THE COURT: evidence. It's not in evidence. It's not in So until someone can show me that it is, it's not. 920 PROCEEDINGS 1 MR. LUCKMAN: 2 THE COURT: Understood. When he said it, the same thought occurred 3 to me, that it wasn't in the stipulation and I didn't recall 4 any evidence coming in to that. 5 but I don't think it came in. 6 MR. FRANCIS: 7 THE COURT: 8 9 10 11 It might have been relevant, Okay. Okay. All right. So there we have our, on that. So with respect to the verdict form, what I thought I would just do is one question: "What amount, if any, of punitive damages do you 12 award to TransUnion?" 13 MR. SOUMILAS: 14 MR. NEWMAN: 15 THE COURT: 16 do it as to per class member. 17 MR. NEWMAN: 18 THE COURT: 19 MR. SOUMILAS: To TransUnion? Or to each class member. Against TransUnion. I don't think I would It would be a single amount. I think it would just be a single amount. So I think our view on this, your 20 Honor, is that since the original verdict is a statutory 21 damages per class member, so should the punitive. 22 23 MR. NEWMAN: I think it would be confusing to change at this point. 24 THE COURT: 25 MR. NEWMAN: If you agree. I do. I do. 921 PROCEEDINGS 1 THE COURT: 2 So: "What amount, if any, do you award against TransUnion 3 per class member?" 4 MR. NEWMAN: Yes. Because we do also have this issue, 5 which needs to be cleaned up, about who's actually -- what do 6 you do with people who didn't get notice and it gets -- it gets 7 complicated. 8 But, yes, I think the jury should be -- 9 THE COURT: Okay. It would say what amount, if any, 10 of punitive damage do you award against TransUnion per class 11 member? 12 MR. NEWMAN: 13 MR. SOUMILAS: 14 THE COURT: 15 MR. LUCKMAN: 16 THE COURT: And then with respect to the instruction. Can I confer with Mr. Newman for one You may. (Discussion held off the record between defense counsel.) 19 20 Yes. second? 17 18 Yes. MR. NEWMAN: So looking at -- I'm sorry. We're on to jury instruction No. 26. 21 THE COURT: 22 MR. NEWMAN: Whatever, yes. So looking at what your -- I mean, our 23 argument we've made before is that there needs to be something 24 above and beyond the level of recklessness to impose statutory 25 damages. 922 PROCEEDINGS 1 THE COURT: 2 MR. NEWMAN: 3 if what's been drafted here: 4 Okay. And so it seems to me that if you've -- "Conduct is in reckless disregard of a plaintiff's 5 rights if, under the circumstances, it reflects complete 6 indifference to the plaintiff's rights." 7 And if you end the sentence there, I think that captures 8 that heightened burden. 9 10 MR. SOUMILAS: I'm sorry. Could you tell me where you are? 11 MR. NEWMAN: 12 Lines 8 and 9. "Conduct is in reckless disregard of a plaintiff's 13 rights if, under the circumstances, it reflects complete 14 indifference to the plaintiff's rights." 15 And then if you end the sentence there. Because the 16 following part of the sentence is basically the same as the 17 ordinary statutory damages. 18 THE COURT: 19 MR. NEWMAN: 20 21 Which is what the statute says. It's not clear, you know, what to do with it. MR. SOUMILAS: So I think, your Honor, that second 22 part of the sentence, I think comes straight out of Safeco. 23 we're fine with it. 24 THE COURT: 25 All right. I think that is where it comes from. And the other objections are noted. So 923 PROCEEDINGS 1 MR. NEWMAN: 2 THE COURT: 3 MR. SOUMILAS: Thank you, your Honor. Okay. All right. And one word we had an issue with, your 4 Honor, is at the very end. 5 as proposed by the Court. 6 of reprehensibility of the defense conduct and the relationship 7 of an award of punitive damages to any actual harm. 8 9 10 It's Line 18 of Jury Instruction 26 So this is talking about the degree I think the relationship is typically between compensatory damages and punitive damages, but in this case we're using statutory damages as the surrogate for compensation. 11 So I think we should just be consistent and say there 12 should be a relationship between punitive damages and statutory 13 damages, but I think the actual harm kind of introduces a new 14 concept that is not part of the ratio analysis, as I understand 15 it. 16 THE COURT: Well, I think I take this directly from 17 the Ninth Circuit punitive damages instruction. 18 it's relevant, the amount of punitive damages to the actual 19 harm. 20 factor that the jury may consider. 21 It's may, not must. It's not shall. And I do think It's may. It's a Right? If this were a case of Ms. Cortez's, a class of all 22 Ms. Cortez's and the harm, clearly, the punitive damages in 23 such case -- I shouldn't say "clearly." 24 argument that the punitive damages in such case would be 25 appropriate to be much higher than in another case in which the There is a good 924 PROCEEDINGS 1 actual harm is not as high. 2 dispositive factor, just something that they may consider. 3 it comes straight from the Ninth Circuit instruction. 4 5 I think it's a factor; not a And And it's not designed to compensate, of course, the class members. 6 It's to punish the defendant. MR. SOUMILAS: How would your Honor like me to bring 7 to your attention if I think they opened the door in responding 8 to any punitive damages? 9 10 MR. NEWMAN: MR. SOUMILAS: there, your Honor. 15 16 Your Honor, can pull out a yellow card and wave it at me. 13 14 You can stand up. 11 12 Well, you can give me a look. THE COURT: I have a feeling we're not going to go All right. THE COURT: I have a feeling they're not going to go there. 17 MR. NEWMAN: 18 THE COURT: I think that's right. Okay. The only other thing I will say is 19 you-all can turn your cell phones off silence now. 20 this once with a jury that was out and, of course, the lawyers 21 forgot to turn their phones on. 22 tried for an hour to get ahold of them, and we couldn't, and 23 the jury just sat here waiting and waiting. 24 phones on. 25 I did have Then when I had a note, we So turn your Be nearby. THE CLERK: They are going to leave at 3:00 today and 925 1 we'll come back at 8:30. 2 MR. NEWMAN: 3 THE COURT: 4 suspect. 5 a note. 6 Okay. So we won't have a verdict today, I But you should hang around until 3:00, in case we get And then be here at 8:30. There is the Attorney Lounge on the 18th floor you can 7 hang out in. 8 that witness room available as well. 9 Just don't take over. MR. NEWMAN: Okay. 10 MR. SOUMILAS: 11 THE COURT: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And you can still have Thank you very much, your Honor. Thank you, your Honor. All right. Thank you. (Whereupon at 2:50 p.m. further proceedings were adjourned pending jury verdict.) 926 I N D E DEFENDANT'S WITNESSES X PAGE VOL. TUREK, PETER (SWORN) Direct Examination by Mr. Newman Cross Examination by Ms. Brewer Redirect Examination by Mr. Newman Recross Examination by Ms. Brewer 742 743 754 764 764 5 5 5 5 5 BRIDDELL, DENISE (SWORN) Direct Examination by Mr. Luckman Cross Examination by Ms. Brewer 766 767 803 5 5 5 Defense Rests 816 5. Jury Instructions. 821 5 Closing Argument by Mr. Soumilas Closing Argument by Mr. Newman Rebuttal Argument by Mr. Soumilas 832 869 901 5 5 5 Final Instructions 908 5 _ _ _ 927 E X H I B I T S TRIAL EXHIBITS IDEN EVID VOL. 69 779 5 28 788 5 88 798 5 61 801 5 _ _ _ CERTIFICATE OF REPORTER I certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter. _________________________________ Debra L. Pas, CSR 11916, CRR, RMR, RPR Monday, June 19, 2017