BERKERY v. EXPERIAN PLC, 2:21-cv-01250

Background

In January 2020 Berkery signed a confidential Settlement Agreement with Trans Union resolving an earlier FCRA dispute; the agreement stated Berkery reviewed his January 24, 2020 Trans Union disclosure, agreed it was accurate, and agreed that that disclosure "will not provide the basis for any future claims." It also required 30 days' written notice to Trans Union before filing any future suit and allowed recovery of attorneys’ fees for enforcement or breach.
In August 2020 TruMark submitted an automated universal data (AUD) request to Trans Union asking that the TruMark account be deleted; Trans Union claims the AUD listed a different account number and its system did not match or delete the account, and it notified TruMark of the error.
Berkery filed this suit in March 2021 alleging Trans Union violated 15 U.S.C. § 1681e(b) by failing to delete the TruMark account after the AUD; Trans Union counterclaimed for breach of the Settlement Agreement.
In opposing Trans Union’s summary judgment motion Berkery submitted three letters and a declaration of a TruMark official that had not been produced or identified in discovery; Trans Union moved to exclude them under Rules 26/37 and objected to the declaration under Rule 56.
The Court excluded the three letters and the Monari declaration as untimely undisclosed evidence (Rule 37(c)(1)) and found the declaration also failed Rule 56(c)(4) authentication/personal-knowledge requirements.
On summary judgment the Court granted Trans Union full judgment: Berkery’s § 1681e(b) claim failed for lack of any showing the reporting was inaccurate or that an inaccurate report was furnished to a third party, and Trans Union prevailed on its breach-of-contract counterclaim because Berkery violated the Settlement Agreement and did not give the required 30-day notice. Berkery’s summary-judgment motion on the counterclaim was denied.

Issues

Issue	Berkery's Argument	Trans Union's Argument	Held
Whether Berkery may rely on previously undisclosed letters and Monari declaration	Not required to disclose (no Rule 26(f) conference); documents were already in Trans Union’s possession; late production harmless	Failure to identify/produce in discovery and deposition; prejudiced Trans Union; evidence unauthenticated and hearsay	Excluded under Fed. R. Civ. P. 37(c)(1); Monari decl. also fails Rule 56(c)(4) (no personal-knowledge/authentication)
Whether Trans Union violated § 1681e(b) by not deleting the TruMark account after the AUD	TruMark ordered deletion via AUD and Trans Union refused to delete, so reporting became inaccurate	Berkery agreed the January 2020 disclosure was accurate in the Settlement Agreement; Berkery produced no admissible proof of an inaccuracy or of a third party receiving an inaccurate report	Judgment for Trans Union; Berkery failed to show an inaccuracy or that an inaccurate report was furnished to a third party
Whether Berkery breached the Settlement Agreement by suing without 30 days’ notice and by suing over matters he waived	Settlement did not bind claims after execution or did not apply to the deletion dispute	Settlement is valid and enforceable; it waived future claims based on the January 24, 2020 disclosure and required 30-day written notice before suing	Judgment for Trans Union on counterclaim; Berkery breached the Agreement and failed to give required notice
Whether Trans Union is entitled to attorneys’ fees for enforcing the Settlement Agreement	Berkery disputes relevance/amount	Settlement authorizes recovery of reasonable attorneys’ fees for enforcement/breach	Court found Trans Union asserted attorneys’ fees as damages but did not decide any fee award (amount not adjudicated)

Key Cases Cited

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (summary-judgment standard for genuine disputes)
Celotex Corp. v. Catrett, 477 U.S. 317 (movant’s initial burden on summary judgment)
Philbin v. Trans Union Corp., 101 F.3d 957 (3d Cir.) (elements of negligent § 1681e(b) claim)
Cortez v. Trans Union, LLC, 617 F.3d 688 (3d Cir.) (FCRA accuracy and § 1681e(b) analysis)
Nicholas v. Pa. State Univ., 227 F.3d 133 (3d Cir.) (factors for excluding evidence under Rule 37)
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (nonmoving party must present specific facts to defeat summary judgment)
J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524 (3d Cir.) (when hearsay in affidavits may be considered at summary judgment)
Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249 (3d Cir.) (pro se litigant must still produce evidence to oppose summary judgment)