Adam Berry v. Experian Info. Solutions

                                RECOMMENDED FOR PUBLICATION
                                Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 24a0184p.06

                   UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT



                                                             ┐
 ADAM N. BERRY,
                                                             │
                                   Plaintiff-Appellant,      │
                                                              >        No. 23-1961
                                                             │
        v.                                                   │
                                                             │
 EXPERIAN INFORMATION SOLUTIONS, INC.,                       │
                              Defendant-Appellee.            │
                                                             ┘

  Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
                  No. 2:22-cv-11556—Mark A. Goldsmith, District Judge.

                                     Argued: June 11, 2024

                             Decided and Filed: August 19, 2024

                  Before: COLE, GIBBONS, and READLER, Circuit Judges.
                                  _________________

                                            COUNSEL

ARGUED: Tarek N. Chami, CONSUMER ATTORNEYS, Dearborn, Michigan, for Appellant.
Meir Feder, JONES DAY, New York, New York, for Appellee. ON BRIEF: Tarek N. Chami,
CONSUMER ATTORNEYS, Dearborn, Michigan, for Appellant. Meir Feder, JONES DAY,
New York, New York, Adam W. Wiers, JONES DAY, Chicago, Illinois, Daniel A. Baum,
JONES DAY, Detroit, Michigan, for Appellee.

    COLE, J., delivered the opinion of the court in which GIBBONS, J., joined in full.
READLER, J. (pp. 15–19), delivered a separate opinion concurring in part and dissenting in part.

                                      _________________

                                             OPINION
                                      _________________

       COLE, Circuit Judge. Pursuant to the Fair Credit Reporting Act (FCRA), Adam N. Berry
alleged that Experian Information Solutions, a consumer reporting agency (CRA), negligently or
 No. 23-1961                     Berry v. Experian Info. Solutions                       Page 2


willfully published inaccurate information in Berry’s consumer report that he owed spousal and
child support. After Berry sent Experian court orders that allegedly demonstrated that he had no
outstanding support obligations, Experian continued to report that the Michigan Office of Child
Support (OCS) showed Berry had a balance due.
       The district court granted Experian’s motion for judgment on the pleadings, reasoning
that the FCRA required Experian to report any information received from OCS about Berry’s
failure to pay support.    Because Berry sufficiently pleaded that Experian did not adopt
reasonable procedures to ensure maximum possible accuracy and did not reasonably
reinvestigate Berry’s consumer report after he challenged its accuracy, we REVERSE.
                                               I.

                                               A.

       “A credit report can determine everything from whether a person can secure a credit card,
purchase a home, win a new job, or start a small business.” Dep’t of Agric. Rural Dev. Rural
Hous. Serv. v. Kirtz, 

, 45 (2024). The FCRA was passed to “ensure fair and accurate
credit reporting, promote efficiency in the banking system, and protect consumer privacy.”
Safeco Ins. Co. of Am. v. Burr, 

 (2007) (citation omitted). Because CRAs
“assume[] a vital role in assembling and evaluating” consumer information, CRAs must
“exercise their grave responsibilities with fairness, impartiality, and respect.”     

(a)(3)–(4).

       CRAs must “adopt reasonable procedures” for reporting, see 

 at § 1681(b), that “assure
maximum possible accuracy of the information concerning the individual about whom the report
relates.” 15 U.S.C. § 1681e(b). If a consumer disputes a report’s accuracy, the CRA must
“conduct a reasonable reinvestigation to determine whether the disputed information is
inaccurate and record the current status of the disputed information, or delete the item from the
[consumer’s] file.” 15 U.S.C. § 1681i(a)(1)(A). If a CRA negligently or willfully violates the
accuracy mandate, the consumer may bring suit. Id. at § 1681n (allowing private right of action
for willful noncompliance); § 1681o (same for negligent noncompliance). Relevant here, the
FCRA states:
 No. 23-1961                           Berry v. Experian Info. Solutions                                Page 3


        Notwithstanding any other provision of this subchapter, a consumer reporting
        agency shall include in any consumer report furnished by the agency in
        accordance with section 1681b of this title, any information on the failure of
        the consumer to pay overdue support which—
                 (1) is provided—
                          (A) to the consumer reporting agency by a State or local child
                          support enforcement agency; or
                          (B) to the consumer reporting agency and verified by any
                          local, State, or Federal Government agency.

15 U.S.C. § 1681s-1.

                                                       B.

        On January 9, 2021, Berry and his wife divorced. Per the complaint, Berry paid spousal
and child support directly to his ex-wife and not through OCS.                       See Mich. Comp. Law
§ 552.604(2)–(3)(b). In mid-2021, Berry and his ex-wife reconciled, and Berry learned that OCS
had recorded a balance of unpaid support. On June 1, 2021, Berry obtained a Michigan court
order stating that “effective immediately, the obligation of [Berry] to pay child support and all
arrears through [Michigan OCS] is abated until further order of the Court.” June Order, ECF No.
28-2, PageID 2.

        In late 2021 and early 2022, Berry attempted to refinance his student loans, but was
notified by a lender that Experian reported that Berry owed spousal support. Berry moved for
another court order waiving his obligation to pay spousal support and any arrears because it had
already been paid. On March 29, 2022, a Michigan court entered an order stating that “the
obligation of [Berry] to pay spousal support and all arrears through [OCS] is abated until
[f]urther order of the Court.” March Order, ECF No. 28-3, PageID 2–3.1

        Berry then filed a dispute with Experian. On April 7, 2022, after verifying that OCS still
reported an unpaid balance through an automated inquiry, Experian concluded that its consumer
report was accurate. In May 2022, Berry filed a second dispute with Experian explaining that the

        1
         Berry did not include copies of the June 2021 or March 2022 Michigan state court orders in the pleadings.
Following oral argument on appeal, Experian filed a motion to take judicial notice of the state court orders. ECF
No. 28-1. We granted the motion on July 2, 2024. ECF No. 29.
 No. 23-1961                          Berry v. Experian Info. Solutions                               Page 4


OCS report was inaccurate because he had already paid the support owed. Before Experian
responded, Berry filed a third dispute and attached the state court orders. In late May 2022,
Experian verified that OCS was still reporting a balance, and despite having the court orders, did
not update Berry’s consumer report.

        On July 11, 2022, Berry filed the present action,2 alleging that Experian willfully or
negligently failed to: (1) use reasonable procedures to assure that its consumer reports about
Berry met the standard of maximum possible accuracy as required under 15 U.S.C. § 1681e(b);
and (2) reasonably reinvestigate the accuracy of the OCS reports as required under 15 U.S.C.
§ 1681i. Berry alleged that he could not refinance his student loans at a lower interest rate or
obtain a personal loan with favorable interest rates, because of the inaccurate reporting.

        On January 23, 2023, Experian moved for judgment on the pleadings. The district court
granted the motion, reasoning that § 1681s-1, the FCRA’s child support provision, requires
Experian to “include in consumer reports any information [it] receive[s] from state child support
enforcement agencies regarding failure to pay overdue child support.” Op., R. 41, PageID 257–
58 (quotations omitted) (emphasis in original). It reasoned that because Experian was required
to report the unpaid balance, and had verified the information’s accuracy with OCS, Berry’s
claims were not actionable. Berry brought this appeal.

                                                      II.

        We review de novo a grant of a motion for judgment on the pleadings. Moderwell v.
Cuyahoga County, 

 (6th Cir. 2021) (citations omitted). “To survive a Rule
12(c) motion, the ‘complaint must contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.’” Engler v. Arnold, 

 (6th Cir. 2017)
(quoting Ashcroft v. Iqbal, 

 (2009)). “[A]ll well-pleaded material allegations
of the [plaintiff’s] pleadings . . . must be taken as true, and the motion may be granted only if the
moving party is nevertheless clearly entitled to judgment.” Jackson v. Prof’l Radiology Inc., 864

        2
           The complaint also initially included as defendants Bank of America, N.A., Trans Union, LLC, and
Equifax Information Services, LLC, but they were voluntarily dismissed. The complaint also alleged that Experian
reported inaccurate information about Berry’s Bank of America credit card. On appeal, Berry only challenges the
district court’s findings related to his support obligations.
 No. 23-1961                       Berry v. Experian Info. Solutions                      Page 

 (6th Cir. 2017) (quotation omitted). The panel “need not accept as true legal
conclusions or unwarranted factual inferences.” Barber v. Charter Twp. of Springfield, 

 (6th Cir. 2022) (quoting Jackson, 864 F.3d at 466).

                                                 III.

                                                  A.

       The FRCA states: “Notwithstanding any other provision of this subchapter, a consumer
reporting agency shall include in any consumer report furnished by the agency . . . any
information on the failure of the consumer to pay overdue support.”        15 U.S.C. § 1681s-1
(emphasis added).     “Notwithstanding” means “despite” or “in spite of.”       Notwithstanding,
BLACK’S LAW DICTIONARY (11th ed. 2019) (using as an example “notwithstanding the
conditions listed above, the landlord can terminate the lease if the tenant defaults”). “Shall” is
commonly understood to indicate that “Congress intended strict and nondiscretionary application
of the statute.” Cook v. United States, 

 (6th Cir. 1997) (citing Escoe v. Zerbst,

 (1935)). In this context, “any” indicates “a maximum or whole.” Any,
MERRIAM WEBSTER DICTIONARY (11th ed. 2024). Therefore, CRAs must include in their reports
all information they receive from a government agency on a consumer’s failure to pay support,
regardless of other FCRA requirements. This comports with the canon of statutory interpretation
that “a more specific provision takes precedence over a more general one.” United States v.
Perry, 

 (6th Cir. 2004).

       Berry attempts to limit the application of the “notwithstanding” language to 15 U.S.C.
§ 1681c(a) (listing information excluded from consumer reports).         But, the statute reads,
“[n]otwithstanding any other provision of this subchapter.” 15 U.S.C. § 1681s-1. The FCRA
makes up subchapter III of chapter 41 of Title 15 of the United States Code, and the term
“subchapter” is used throughout to apply to the entire FCRA.           Kirtz, 601 U.S. at 50–51
(explaining that the definition of “person” within § 1681a applies throughout the FCRA
“subchapter”).    Accordingly, the application of § 1681s-1 is not limited to certain FCRA
provisions, and Experian was required to report Berry’s unpaid support balance. The district
court erred, however, in ending its analysis at this step.
 No. 23-1961                      Berry v. Experian Info. Solutions                       Page 6


                                               B.

        Berry claims that Experian failed to “follow reasonable procedures to assure maximum
possible accuracy of the” consumer report. 15 U.S.C. § 1681e(b). Berry must demonstrate that:
(1) Experian reported inaccurate information; (2) Experian negligently or willfully failed to
follow reasonable procedures to ensure maximum possible accuracy of his information; (3) he
was injured; and (4) Experian was the proximate cause of his injury. Twumasi-Ankrah v.
Checkr, Inc., 

 (6th Cir. 2020) (citation omitted). We analyze § 1681i claims
under a similar framework, so we will address the claims here simultaneously. See Dickens v.
Trans Union Corp., 

 (6th Cir. 2001); Losch v. Nationstar Mortg., LLC, 

, 944 (11th Cir. 2021) (explaining that the elements of a § 1681i claim are the same as a
§ 1681e(b) claim, except that the plaintiff “needn’t show that the agency prepared and distributed
a report”).

        We have yet to address whether a showing of inaccuracy is required for a § 1681i claim,
but we have reasoned that while the statutory language does not require an inaccuracy as “a
predicate to liability, damages would be almost impossible to prove without it.” Dickens, 18 F.
App’x at 318–19 (internal citations omitted). We join the weight of authority in other circuits to
conclude that a showing of inaccuracy is an essential element of a § 1681i claim. See Bibbs v.
Trans Union LLC, 

 (3d Cir. 2022) (holding that “without a showing that the
reported information was in fact inaccurate, a claim brought under § 1681i must fail”)
(quotations omitted); Denan v. Trans Union LLC, 

, 296–98 (7th Cir. 2020)
(same); Shaw v. Experian Info. Sols., Inc., 

 (9th Cir. 2018) (same); Wright v.
Experian Info. Sols., Inc., 

 (10th Cir. 2015) (same).

        Inaccuracy. An inaccuracy in a consumer report occurs when “a CRA report[s] either
‘patently incorrect’ information about [the consumer] or information that was ‘misleading in
such a way and to such an extent that it [could have been] expected to have an adverse effect [on
the consumer].’” Twumasi-Ankrah, 

 (quoting Dalton v. Cap. Associated Indus.,
Inc., 

 (4th Cir. 2001)) (emphasis and modifications in original). In other
words, a consumer can demonstrate an inaccuracy where a report was materially misleading or
incomplete, even if it was technically accurate. Id. at 943; see also 15 U.S.C. § 1681i(a)(5)(A)
 No. 23-1961                       Berry v. 

(requiring CRAs to delete information if its reasonable reinvestigation of a consumer’s dispute
finds the information is “inaccurate or incomplete”). Consequently, “accuracy” under the FCRA
encompasses truthfulness and completeness. Pittman v. Experian Info. Sols., Inc., 

 (6th Cir. 2018); see also Boggio v. USAA Fed. Sav. Bank, 

 (6th Cir.
2012) (citing Sepulvado v. CSC Credit Servs., Inc., 

, 895–96 (5th Cir. 1998) as a
case that “interpret[ed] [the] ‘accuracy’ requirement under § 1681e(b) to impose a duty to avoid
material omissions”).

       Because the FCRA is designed to promote accuracy, “false impressions can be just as
damaging as false information.” Chaitoff v. Experian Info. Sols., Inc., 

 (7th Cir.
2023); see also Cortez v. Trans Union, LLC, 

, 709–10 (3d Cir. 2010) (“Congress
surely did not intentionally weave an exception into . . . the FCRA that would destroy its
remedial scheme by allowing a [CRA] to escape responsibility for its carelessness whenever
misleading information finds its way into a credit report through the agency of a third party.”).
For example, in Twumasi, the plaintiff Uber driver was fired after the CRA reported to Uber that
the plaintiff had been involved in three car accidents. 954 F.3d at 939–40. While the Ohio
Bureau of Motor Vehicles (BMV) furnished information to the CRA that did demonstrate that
the plaintiff had been involved in three accidents, the BMV did not include a police report and
court document adjudging him not at fault for two of the accidents. Id. at 940. Although the
plaintiff submitted this counter-evidence of his lack of fault to the CRA, the CRA did not change
his consumer report. Id.

       On appeal, we held that the CRA’s report was materially misleading because the CRA
knew that the Ohio BMV records all accidents regardless of fault, and the plaintiff gave the CRA
other public records demonstrating that he was not at fault for two of them. Id. at 944–45. The
CRA omitted information that would have provided the full picture of Twumasi-Ankrah’s
driving record to his employer, and this omission cost the plaintiff his job—facts sufficient to
survive a motion to dismiss. Id.

       Taking Berry’s allegations as true, Experian’s omission of the court orders and its failure
to inquire further resulted in a consumer report that was “‘misleading in such a way . . . that it
[could have been] expected to have an adverse effect [on Berry].’” Twumasi-Ankrah, 954 F.3 at
 No. 23-1961                        Berry v. Experian Info. Solutions                           Page 8


942.    A reported delinquency in making support payments could negatively impact the
perception of Berry’s creditworthiness. See e.g., McIntyre v. RentGrow, Inc., 

(1st Cir. 2022) (concluding that a jury could find that omissions in the CRA’s tenant screening
report that the plaintiff had either been dismissed or paid the judgment in litigation against her
were materially misleading and could adversely affect credit decisions against the plaintiff). The
FCRA does not allow Experian to remain immune from liability for reporting incomplete
information that could be materially misleading and impact Berry’s perceived creditworthiness.
As such, Berry’s complaint meets the inaccuracy element for §§ 1681e(b) and 1681i.

        In its motion to take judicial notice, Experian argues that the court orders do not waive all
support obligations as Berry alleges. The court orders state: (1) “effective immediately, the
obligation of [Berry] to pay child support and all arrears through [Michigan OCS] is abated until
further order of the Court,” see June Order, ECF No. 28-2, PageID 2; and (2) “the obligation of
[Berry] to pay spousal support and all arrears through [OCS] is abated until [f]urther order of the
Court.” March Order, ECF No. 28-3, PageID 2–3.

        At this stage of the litigation, we must take Berry’s well-pleaded allegations as true,
though we “need not accept as true . . . unwarranted factual inferences.” Jackson, 864 F.3d at
466. While reasonable minds could differ on the meaning of “abated until [f]urther order of the
Court,” the language certainly does not undermine or directly contradict Berry’s allegations. A
plain reading of the orders lends support to Berry’s allegation that he owed $0 in support at the
time he provided the court orders to Experian. In other words, the pleadings and the court orders
“contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face’” that
Experian should have known that Berry’s consumer report was potentially inaccurate and
misleading. Ashcroft, 

 (quoting Bell Atl. Corp. v. Twombly, 

(2007)).

        Reasonable procedure. What constitutes a “reasonable procedure” on the part of CRAs
to investigate and ensure maximum possible accuracy, remains an open question. “[I]t would be
unreasonable to ‘require a live human being, with at least a little legal training, to review every
[dismissal of a legal action] and classify it’ because of the ‘enormous burden’ credit reporting
agencies would incur.” Hammoud v. Equifax Info. Servs., LLC, 

 (6th Cir.
 No. 23-1961                      Berry v. Experian Info. Solutions                        Page 9


2022) (quoting Childress v. Experian Info. Sols., Inc., 

 (7th Cir. 2015)). We
have acknowledged, however, that the burden imposed on the CRA by the obligation to
investigate lessens “once the consumer raises concerns that their information may be inaccurate”
because the “the agency, ‘incurs only the cost of reinvestigating that one piece of disputed
information.’”   

 (quoting Losch, 995 F.3d at 945).       In other words, once the disputed
information is pinpointed, the “calculus changes” as to what may be “reasonable” procedure. Id.

       Upon receipt of the furnisher’s information and the court orders, Experian was required
to conduct a “reasonable reinvestigation” of the issue in dispute. 15 U.S.C. § 1681i(a)(1)(A).
Berry alleges that the automated form Experian sent to OCS to confirm the outstanding support
balance was an unreasonable procedural response because Experian was aware of his challenge
to OCS’s reporting.    Berry asserts that Experian should have inquired into the state court
information, or at a minimum included the June and March Orders in Berry’s consumer report.

       Experian did not take any action beyond sending the automated form to OCS. See
Chaitoff, 

 (recognizing FCRA claims challenging the reasonableness of a CRA’s
procedure where it was within the CRA’s competency to identify and correct the allegedly
misleading information). Experian argues it was not required to take further action because the
situation represents an unadjudicated legal dispute between Berry and OCS, which it is ill-
equipped to resolve. Granted, CRAs are not well suited to adjudicate legal defenses to a debt.
Berry, however, alleges a factual dispute. Compare Losch, 995 F.3d at 946 (concluding that
while a bankruptcy court’s discharge was unclear, the plaintiff’s mortgage debt was definitively
discharged and the CRA could address this factual dispute) and Chaitoff, 

(concluding that the existence of a trial period plan (TPP) on a consumer’s loan “is a factual, not
legal, question within the competency of the CRA to identify and correct”) with Chuluunbat v.
Experian Info. Sols., Inc., 

, 568–69 (7th Cir. 2021) (concluding that consumers who
challenged their credit reports by disputing to whom their debts were owed had a legal dispute,
and only the courts could determine the legal relationship between the parties).

       “[W]hile ‘[t]aking notice of a previously resolved legal dispute involves some knowledge
of the legal impact of court decisions, [ ] it does not require the [CRA] to make any legal
determination about the underlying claim.’” Chaitoff, 

 (quoting Chuluunbat,
 No. 23-1961                       Berry v. Experian Info. Solutions                     Page 10


F.4th at 568). Reporting the existence of the court Orders “did not involve the application of law
to facts.” Id. at 808. Experian was not asked “to go beyond the face of . . . court records to
determine whether they correctly report the outcome of the underlying action.” Id. at 814–15
(quoting Henson v. CSC Credit Servs., 

 (7th Cir. 1994)). “CRAs can read and
understand legal documents,” see Chaitoff, 

, and absent notice by the consumer
that such documents contain errors, they may “rely on the accuracy of public court documents in
preparing a credit report.” Henson, 

. We find this logic convincing. Experian
was capable of relying on a legal, court document of “unquestioned authenticity,” and faces
liability when “it ignores or overlooks documents of unquestioned authenticity, even if they
relate to a legal dispute.” Chaitoff, 

.

       The same facts meet the standard for a § 1681i claim. Reinvestigation requires “more
than simply including public documents in a consumer report or making only a cursory
investigation into the reliability of information that is reported to potential creditors.” Cortez,

 (citation omitted). The term “‘investigation’ itself denotes a ‘fairly searching
inquiry,’ or at least something more than a merely cursory review.” Boggio, 

(reviewing the definition of “investigation” in § 1681s-2, which establishes accuracy
requirements for furnishers of information to CRAs).

       This is especially true where the CRA relies on an automated verification process with
the furnisher. Berry submitted three disputes and counter-documentation (from a court), but
Experian continued to repeat the same ineffective steps.         See Chaitoff, 

(concluding that a reasonable jury could find that “repeating the same ineffective steps was not a
reasonable response to [the plaintiff’s]” second [dispute] letter). Therefore, Berry sufficiently
pleads that Experian failed to follow reasonable procedures to reinvestigate Berry’s dispute and
ensure maximum possible accuracy of his consumer report.

       The district court did not address whether Experian’s actions were negligent or willful. A
willful violation of the FCRA is committed in “reckless disregard of [its] statutory duty.” Safeco
Ins. Co. of Am., 

. A CRA recklessly violates the Act if it takes an action that is
objectively unreasonable and runs “a risk of violating the law substantially greater than the risk
associated with” mere carelessness. 

. A CRAs actions are not willful if it “followed an
 No. 23-1961                      Berry v. Experian Info. Solutions                          Page 11


interpretation that could reasonably have found support in the courts[.]” 

. Finally,
a “single inaccuracy, without more, does not constitute a willful violation of the FCRA.” Smith
v. LexisNexis Screening Sols., Inc., 

 (6th Cir. 2016) (citation omitted).

         Experian’s interpretation of § 1681s-1 as obviating the accuracy requirement otherwise
imposed by § 1681e(b) could have “reasonably found support in [other] courts,” just as it did in
the district court. Safeco Ins. Co. of Am., 

. And Experian did not entirely
fail to act but investigated by sending verification requests to OCS. See Gorman v. Wolpoff &
Abramson, LLP, 

 (9th Cir. 2009) (explaining that a CRA’s reasonable
reinvestigation “consists largely of triggering the investigation by the furnisher”). Accordingly,
Berry’s pleadings only support a claim that Experian acted negligently. Collins v. Experian Info.
Sols., Inc., 

 (11th Cir. 2015) (finding that “[t]aking no steps other than
contacting only [the data furnisher] with an [automated] form regarding the disputed entry might
have been negligent, but willfulness or recklessness is a higher standard that ha[d] not been
met”).

         Of note, at oral argument Berry’s counsel stated that Experian should have removed the
OCS balance from Berry’s file or modified the report to show he owed $0 because it could not
simultaneously report the balance and court orders. Oral Arg., 6:50–7:15, 8:30–9:10; 11:35–
12:30. Berry’s alternative position raised in the briefings—that Experian should have at least
included the court orders in Berry’s report—was not unequivocally abandoned. See Appellant
Br. 29–30, 33. A party abandons an issue when it fails to present an argument as to that issue on
appeal. Intera Corp. v. Henderson, 

 (6th Cir. 2005); see also Priddy v.
Edelman, 

 (6th Cir. 1989) (“We normally decline to consider issues not raised
in the appellant’s opening brief.”). In his opening brief, however, Berry twice argues that
Experian could have at least included the court orders in his report. See Appellant Br. 29–30, 33.
We do not disregard this position just because it was not addressed in oral argument.
Additionally, Berry’s counsel understandably emphasized his primary argument because Berry
does not want his consumer report to reflect that he owes support.

         Adverse effect on credit decisions. Berry also meets the pleading requirements of injury
and causation. Twumasi-Ankrah, 

. Berry alleges that his would-be-lenders
 No. 23-1961                       Berry v. Experian Info. Solutions                        Page 12


denied him better interest rates because Experian’s consumer report contained the allegedly
inaccurate support information. It “requires little imagination to see how the omission of a [court
order stating no further child support is owed] might affect a consumer’s creditworthiness.”
Chaitoff, 

; Pittman, 

 (explaining that reporting that a consumer
“was delinquent on his loan payments without reporting the TPP implies a much greater degree
of financial irresponsibility”).

                                                ***

        We do not decide whether Experian’s procedures were per se reasonable or unreasonable.
We need only determine whether Berry pleaded sufficient facts to state a claim that Experian
was negligent in discharging its obligations to conduct a reasonable investigation and
reinvestigation into the disputed information pursuant to §§ 1681e(b) and 1681i. We conclude
that he did. Berry pleaded that Experian received the court orders but only ever sent automated
verification forms to OCS and did not further investigate the state court documentation—an
action that was fully within its control and competency to take. See Losch, 995 F.3d at 946–47
(concluding that CRA was negligent in discharging its reasonable investigation responsibilities
when “[i]t did nothing, although it easily could have done something” such as checking the
bankruptcy docket when the plaintiff gave “an account number, a discharge in bankruptcy, and
an explanation,” to dispute an inaccuracy in the plaintiff’s credit report) (emphasis in original).

                                                 C.

        Section 1681s-1(1)(B). We briefly address Berry’s remaining arguments. A CRA must
include in a consumer report information about overdue support which “is provided . . . to the
consumer reporting agency and verified by any local, State, or Federal Government agency.”
15 U.S.C. § 1681s-1(1)(B). For the first time on appeal, Berry argues in the alternative that this
provision also requires Experian to include the court orders in Berry’s consumer report because
state courts are “state agenc[ies]” for purposes of the FCRA. This argument, however, was not
forfeited. “[A]s long as a claim or issue was raised before the district court, a party may
‘formulate[] any argument they like[] in support of that claim’” on appeal. Chelf v. Prudential
 No. 23-1961                      Berry v. Experian Info. Solutions                       Page 13


Ins. Co. of Am., 

 (6th Cir. 2022) (alterations in original) (quoting Yee v. City of
Escondido, 

, 534–35 (1992)).

       The FCRA defines a “State or local child support enforcement agency” as “a State or
local agency which administers a State or local program for establishing and enforcing child
support obligations.” 15 U.S.C. § 1681a(j)(2). A state agency is an “executive or regulatory
body” such as “offices, departments, divisions, bureaus, boards and commissions.” Agency (3),
BLACK’S LAW DICTIONARY (11th ed. 2019). States must establish child support enforcement
agencies, see Title IV(D) of the Social Security Act, 

, which generally operate
through the state’s department of human services, department of justice, attorney general’s
office, or tax agency. Child-Support-Enforcement Agency, BLACK’S LAW DICTIONARY (11th ed.
2019). Conversely, courts are defined as “tribunal[s] constituted to administer justice.” Courts,
BLACK’S LAW DICTIONARY (11th ed. 2019). While a Michigan state court may issue orders
creating, clarifying, modifying, suspending, or terminating child support obligations, see Mich.
Comp. Law §§ 552.451a, 552.452, 552.455, 552.619(2)(b), OCS carries out these orders by
“administer[ing]” and “enforc[ing]” Michigan’s child support program.          Mich. Comp. Law
§ 400.233(b).

       Berry’s reliance on 

 litigation to argue that state courts are subject to
sovereign immunity as arms of the state, provides no further support for his argument. While
courts are understood to be government bodies subject to the sovereign immunity of a state
within the § 1983 context, they are also commonly understood to be a third branch of
government separate from the executive and legislative bodies. As such, we will not read into
the FCRA an unsupported and expanded definition of “state agency” that includes state courts.

       Report v. file. Berry argues that his reinvestigation claim, pursuant to § 1681i, must
survive because it only requires inaccurate information be deleted from a consumer’s file, not
report, and § 1681s-1 only requires that unpaid child support information be included in a
consumer’s report. In Collins, the Eleventh Circuit held that the plain terms of § 1681i(a) were
aimed at ensuring the completeness and accuracy of a consumer’s file because Congress did not
use the word “report,” like it did in § 1681e(b). 

. It reasoned that because
§ 1681i(a) tied liability to the inaccuracy of a consumer file, a plaintiff was not required to
 No. 23-1961                     Berry v. Experian Info. Solutions                     Page 14


demonstrate publication of that inaccuracy to a third party to establish damages for a § 1681i(a)
claim. Id. The distinction between “report” and “file” is immaterial for our purposes, however,
because Berry challenges information in his published consumer report. See Losch, 995 F.3d at
944 (explaining that because the plaintiff challenged the CRA’s reinvestigation of his consumer
“report,” not his file, it could simultaneously address the reasonableness analysis for the
§ 1681e(b) and § 1681i(a) claims).

                                              IV.

       For the foregoing reasons, we REVERSE the judgment of the district court and
REMAND for further proceedings consistent with this opinion.
 No. 23-1961                      Berry v. Experian Info. Solutions                      Page 15


                               _____________________________

                                 CONCURRENCE / DISSENT
                               _____________________________

        CHAD A. READLER, Circuit Judge, concurring in part and dissenting in part. Because
Adam Berry abandoned at oral argument the lone argument the majority opinion believes is
viable, we should affirm the district court’s judgment dismissing his complaint.

        In our circuit, oral argument has become the exception, not the rule. The vast majority of
cases are decided on the briefs. U.S. Courts of Appeals—Cases Terminated on the Merits After
Oral Arguments or Submission on Briefs, U.S. Courts (Sept. 30, 2023), https://perma.cc/NJ7X-
MUVB (noting that oral argument is held in only 13.6% of cases in the Sixth Circuit). So when
we entertain oral argument, it is to address issues for which we “seek counsel’s help in clarifying
or expanding on the points made in the brief.” See Oral Argument Guidelines (6th Cir. Jan. 1,
2022), https://perma.cc/9VKT-SMFS.

        In this case, oral argument was dedicated to clarifying whether Berry had pleaded a
viable claim under the Fair Credit Reporting Act. By way of background, Berry’s complaint
alleged that Experian had violated the law’s terms by reporting inaccurate information about his
creditworthiness. See 15 U.S.C. § 1681e(b). The district court disagreed and dismissed the case.
While Berry enjoyed the right to appeal that judgment, doing so left it incumbent upon him to
convince us why the district court erred. And on that front, Berry’s appellate briefs were not
entirely clear.

        Primarily, he asserted that Experian, upon receiving copies of two court orders from
Berry, should have removed child support delinquency information from his credit file and
report, what might be labeled his “removal theory.” At other times, he alluded to the idea that
Experian should have “at the very least” somehow “include[d]” information about the court
orders in Berry’s file and report. Appellant’s Br. at 11. Accepting that Experian was statutorily
required to report the child support delinquency, the company, Berry might be understood to say,
nonetheless violated the FCRA when it failed to supplement Berry’s file and report with
information about the court orders. If viewed as a claim separate from his removal theory, the
 No. 23-1961                     Berry v. Experian Info. Solutions                      Page 16


contention could be labeled Berry’s “supplement theory.” Yet Berry’s briefing was wanting to
say the least. In the end, it was not evident whether Berry’s supplement theory was a separate
purported violation of the FCRA or instead simply a component of his removal theory. See, e.g.,
Appellant’s Br. at 11 (arguing Experian erred by failing to remove “and” failing to supplement).

       Against this backdrop, at oral argument we sought to clarify Berry’s position. See 6th
Cir. R. 34(g)(1) (“The purpose of oral argument is to emphasize and clarify the argument in the
briefs.”). On multiple occasions, we asked Berry what Experian should have done when it
received the court orders—remove the child support delinquency information from the file and
report, supplement the file and report with the court orders, or some combination of the two.
Each time, Berry offered the same answer. Experian, Berry explained, should have removed the
delinquency information from Berry’s file and report:

           •   Q: [Delete] it on the file or in the report? What are we—?
           •   A: They would have to remove it from the file. Oral Arg. at 4:06–4:10.

           •   Q: So are you saying the child support information received from the state
               agency should have been removed from the file?
           •   A: Correct. Id. at 4:12–4:18.

           •   Q: What concretely was Experian supposed to do?
           •   A: So they should have deleted upon receiving his dispute—they should
               have deleted [it] from his file. Id. at 5:55–6:04.

           •   Q: What was Experian’s obligation, under the law, at that point, once it
               received the June 21 and March 22 Michigan state court orders?
           •   A: They should have removed it from his file. Id. at 6:40–6:53.

           •   Q: [They] should have removed what?
           •   A: This collection account or should have modified it to report that it was
               [a] zero balance. They should have done something to remove this from
               his file. Id. at 6:55–7:02.

           •   Q: Remove it from the file, and also, in terms of issuing a report, the
               report should not reflect that child support is owed? Is that what you’re
               arguing?
           •   A. Correct. Yes. Id. at 7:03–7:15.
 No. 23-1961                        Berry v. Experian Info. Solutions                        Page 17


            •   Q: Your reasonable investigation was supposed to lead to a removal of
                the report from the [child support] agency from the file?
            •   A: Correct. Id. at 8:27–8:34.

As these seven accounts make abundantly clear, Berry’s sole position was that the FCRA
required Experian to delete from his file and report the delinquency information the child support
agency was continuing to provide.

        Not once did Berry advocate for an alternative theory of liability, including a supplement
theory. Nonetheless, to give Berry a chance to frame his case more broadly, the panel returned
to the issue later in Berry’s opening argument. Inviting Berry to address the possibility of a
distinct supplement theory, we asked whether it would have been sufficient, in Berry’s mind, for
Experian to collect information from both the child support agency and the court and include all
of it in Berry’s file and report:

        Your bottom line is that the file had to exclude the information from the state
        agency? It would not have been good enough, for example, to say, “The agency
        says this. The court says this. We don’t know what to do with it because we’re
        not legal adjudicators in Michigan.”? Your point is that it had to remove any
        reference to the state agency’s report, and if it has any reference to it, that’s a
        violation of a federal statute?

Id. at 11:38–12:02. Berry responded, “Correct. There isn’t really a way to report both positions
within a consumer report. It is either they verify it as accurate, or they can’t verify it, and they
have to remove or delete it or modify it [to zero].” Id. at 12:02–12:10. The panel then followed
up, asking whether the file could “include both” sets of information, even if they were
“conflicting.” Id. at 12:10–12:22. Berry responded bluntly, “It doesn’t work like that.” Id. at
12:27–12:30.

        Berry emphasized this same theme during rebuttal. He was asked, “[The delinquency
information has] to be in the file to be in the report?” He responded, “So there’s a distinction
here, yes, but it has to be removed.” Id. at 29:22–29:30.

        Taking all this together, there is little doubt that even if one read Berry’s brief as alleging
a supplement theory of relief, he abandoned it at oral argument. Parties routinely make these
strategic choices, as we have all acknowledged. See, e.g., Haviland v. Metro. Life Ins., 730 F.3d
 No. 23-1961                      Berry v. Experian Info. Solutions                     Page 18


563, 570 (6th Cir. 2013) (“At oral argument, the plaintiffs abandoned their claim under
§ 1132(a)(1)(B).”); United States v. McCarty, 

 (6th Cir. 2010) (“At oral
argument, the government abandoned seeking plain error review, so we examine the
reasonableness of McCarty’s sentence for abuse of discretion.”). We should honor that choice
again today.    Doing otherwise upsets our time-tested adversarial process.        And it sets a
worrisome precedent. After all, if Berry’s statements did not amount to a concession of his
supplement theory argument, it is difficult to think of how a party could ever abandon a claim at
oral argument. See, e.g., Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 

 (1982) (plurality opinion) (recognizing that parties can “concede” positions at oral
argument, both explicitly and implicitly).

       The majority opinion sees things differently. While it properly rejects Berry’s removal
theory, it embraces the supplement theory as an alternative, even when Berry would not. To the
majority opinion’s eyes, the argument was “not unequivocally abandoned.” Majority Op. at 11.
Instead, it simply “was not addressed in oral argument,” as “Berry’s counsel understandably
emphasized his primary argument.” 

 Even accepting the majority’s view of the governing
standard, but see Pico, 

 (acknowledging that parties can waive positions without
unequivocal abandonment), this version of events is not easy to accept. At the outset, to say the
issue “was not addressed in oral argument” ignores most of what took place before the panel.
Indeed, much of the argument focused on the question of what Berry believed the FCRA
obligated Experian to do upon receiving the court orders. And without exception, Berry gave
only one answer: remove the delinquency information.

       But Berry went even further, disclaiming any theory under the FCRA that did not include
removal. As mentioned, we asked Berry if Experian could have supplemented the child support
delinquency information in the file and report with the court orders, rather than deleting the
information outright. He did not just say no—he said that it was impossible to “report both
positions within a consumer report.” Oral Arg. at 12:02–12:10. In the end, Berry conceded that
“[t]here really [wa]sn’t a way” Experian could have lawfully supplemented his file and report.

 In his words, “It doesn’t work like that.” 

 at 12:27–12:30. This was more than merely
emphasizing a primary argument. It was a plain abandonment of any alternative theory based on
 No. 23-1961                       Berry v. Experian Info. Solutions                    Page 19


the idea that Experian could include both the delinquency information and the court orders in
Berry’s file and report. Why not take Berry at his word?

       Between this exchange and the eight other instances where Berry said the delinquency
had to be deleted, he made his litigating position abundantly clear. That caused the panel to
focus its remaining questions on the removal theory. Had there been any lingering doubt over
whether Berry had disavowed a supplement theory, surely one of the panel members would have
inquired further on the topic. See Oral Argument Guidelines, supra (explaining that we utilize
oral argument to “seek counsel’s help in clarifying or expanding on the points made in the
brief”). None did.

                                  *      *       *      *       *

       A fundamental principle of judging is that we adjudicate cases based on the arguments
the parties present. See United States v. Sineneng-Smith, 

, 375–76 (2020). In other
words, we take a case as it is, not as we might think it could be. And as this case was argued to
us, over and over Berry embraced one legal theory and eschewed others. Had Berry pursued his
supplement theory, I may well agree with the majority opinion that the theory survives a Rule
12(c) motion. That is why we asked the questions we did. It is also why we must accept the
answers Berry conveyed. By overlooking Berry’s strategic choices and related concessions, we
in essence rewrite his oral argument. In the process, we regrettably relegate oral argument to a
virtual nullity. What results is a remand to the district court to resolve whether Experian should
have taken steps that Berry told us “[t]here really [wa]sn’t a way” for the company to achieve
because “[i]t doesn’t work like that.” Oral Arg. at 12:00–12:28. A fairly easy assignment for the
district court, but an odd course nonetheless.