Arbitration-Based Preclusion in FCRA Cases: New Post-Award Inaccuracies Required; Nonparty CRAs May Invoke Collateral Estoppel

1. Introduction

This Eleventh Circuit decision sits at the intersection of Fair Credit Reporting Act (“FCRA”) litigation and preclusion doctrine. Ray’Quan Harding (pro se) sued Upstart Network, Inc. (a loan servicer and credit “furnisher”), and TransUnion LLC and Experian Information Solutions (consumer reporting agencies, “CRAs”). He alleged that his credit reports contained inaccuracies traceable to his Upstart loan account and asserted multiple FCRA theories—against Upstart under 15 U.S.C. § 1681s-2(b) (furnisher duties after notice of dispute) and against the CRAs under § 1681e(b) and § 1681i (reasonable procedures and reinvestigation duties).

The case’s procedural backdrop drove the outcome: before filing this lawsuit, Harding arbitrated FCRA and other claims against Upstart. The arbitrator rejected his claims and awarded him “nothing,” and a federal court later confirmed that award in Upstart Network Inc. v. Harding, No. 1:23-cv-24579-PCH, 2024 U.S. Dist. LEXIS 13512 (S.D. Fla. Jan. 12, 2024).

The key questions on appeal were:

• Whether Harding’s claims against Upstart were barred by claim preclusion (traditional res judicata) based on the prior arbitration award.
• Whether Harding’s claims against TransUnion and Experian were barred by issue preclusion (collateral estoppel) even though the CRAs were not parties to the arbitration.
• Whether an alleged new reporting error (“date updated”) avoided preclusion and stated an actionable FCRA inaccuracy.

2. Summary of the Opinion

The Eleventh Circuit affirmed across the board:

• Upstart: The court held claim preclusion barred Harding’s FCRA claims (and his contract claim) because the lawsuit arose from the same nucleus of operative facts as the arbitration, and the complaint failed to plead any genuinely new post-award inaccuracy attributable to Upstart.
• TransUnion & Experian: The court held issue preclusion barred Harding from relitigating whether the alleged credit-report “inaccuracies” tied to the Upstart account were inaccurate—an issue already litigated and resolved in arbitration. As to the only arguably “new” allegation (“date updated”), the district court had alternatively held it was not actionable under the FCRA, and Harding forfeited any challenge to that alternative ground on appeal.

3. Analysis

3.1 Precedents Cited (and How They Shape the Decision)

A. Pleading and Rule 12 Standards

• Newbauer v. Carnival Corp. (quoting Chaparro v. Carnival Corp.) and Ashcroft v. Iqbal: The panel reiterated that dismissal under Rule 12(b)(6) is reviewed de novo, allegations are taken as true, and the complaint must plausibly state a claim. This framing matters because Harding argued the district court failed to accept his allegations as true; the panel responded that even crediting the allegations, preclusion and pleading deficiencies defeated the claims.
• Tannenbaum v. United States: The court acknowledged liberal construction for pro se pleadings, but emphasized (later, via Timson v. Sampson) that pro se litigants still must comply with forfeiture rules and must plead essential facts.
• SFM Holdings, Ltd. v. Banc of Am. Sec., LLC and Lozman v. City of Riviera Beach: These cases support considering certain materials beyond the complaint at the motion-to-dismiss stage (central documents; judicial notice of filings in other proceedings). They underwrite the district court’s ability to consider the arbitration award and confirmation proceedings when applying preclusion.

B. Claim Preclusion (Res Judicata) Framework

• Milner v. Baptist Health Montgomery and Rodemaker v. City of Valdosta Bd. of Educ. (quoting TVPX ARS, Inc. v. Genworth Life & Annuity Ins. Co.): These authorities supply the Eleventh Circuit’s four-element res judicata test and confirm de novo review. The panel used them to structure the Upstart analysis: competent jurisdiction, finality, identity of parties/privies, and same cause of action (same nucleus of operative facts).
• Cmty. State Bank v. Strong: The court used this to clarify the two branches of res judicata—claim preclusion versus issue preclusion—and to situate Upstart under claim preclusion.
• Greenblatt v. Drexel Burnham Lambert, Inc.: Central to the opinion’s “arbitration-as-judgment” move, Greenblatt is cited for the principle that arbitration determinations can have preclusive effect. This is the doctrinal bridge that allows an arbitral award—especially one later confirmed in federal court—to function as the “prior judgment” for res judicata purposes.
• Citibank, N.A. v. Data Lease Fin. Corp., NAACP v. Hunt, and In re Piper Aircraft Corp.: These cases emphasize that claim preclusion turns on the same nucleus of operative facts and whether claims could have been raised earlier, not on identical legal theories.
• Manning v. City of Auburn: The panel cited Manning for the timing limitation—generally, only claims “in existence” when the earlier complaint was filed are “could have been brought.” Harding tried to fit within this by arguing each new dispute creates a new claim; the court rejected that attempt on the pleadings because he did not plausibly allege new post-award factual inaccuracies attributable to Upstart.

C. Issue Preclusion (Collateral Estoppel) and Nonmutual Use

• Miller's Ale House, Inc. v. Boynton Carolina Ale House, LLC (quoting Taylor v. Sturgell): This is the governing four-part test for issue preclusion, which the panel applied to bar Harding’s CRA claims to the extent they rested on alleged inaccuracies already litigated in arbitration.
• Hart v. Yamaha-Parts Distribs., Inc.: This precedent enables nonmutual defensive collateral estoppel—i.e., a defendant who was not a party to the earlier action (TransUnion/Experian) may invoke issue preclusion against the plaintiff. It is the key authority allowing CRAs to benefit from the arbitration’s determination about accuracy.
• Greenblatt v. Drexel Burnham Lambert, Inc. (again): The court used Greenblatt to confirm that arbitration can support collateral estoppel if basic adjudicatory elements were present—especially an opportunity to present evidence, which Harding had via an evidentiary hearing.

D. Substantive FCRA Building Blocks

• Equifax, Inc. v. Fed. Trade Comm'n: Cited for the FCRA’s purpose—preventing unjust harm from inaccurate or arbitrary credit reporting—providing statutory context.
• Felts v. Wells Fargo Bank, Nat'l Ass'n: Crucial for furnishers: the opinion relies on Felts to state that the “only private right of action” against furnishers like Upstart is under § 1681s-2(b), triggered after notice of dispute.
• Milgram v. Chase Bank USA, N.A.: Supplies the two practical pleading/proof requirements for § 1681s-2(b) claims: (1) identify inaccurate or incomplete information provided to a CRA; (2) identify facts a reasonable investigation would have uncovered showing inaccuracy. The panel used Milgram to explain why Harding’s “new dispute equals new claim” theory failed on the pleadings.
• Losch v. Nationstar Mortg. LLC (citing Cahlin v. General Motors Acceptance Corp., Nagle v. Experian Info. Sols., Inc.) and Collins v. Experian Info. Sols., Inc.: These cases define the elements of CRA claims under § 1681e and § 1681i, emphasizing a threshold requirement: the report/file must contain factually inaccurate information. The panel treated that threshold “inaccuracy” issue as the linchpin that arbitration already resolved.
• Erickson v. First Advantage Background Servs. Corp.: Clarifies what counts as “factually inaccurate” under the Circuit’s approach: information that is factually incorrect, objectively likely to mislead its intended user, or both.
• Spokeo, Inc. v. Robins: Invoked (via the district court’s alternative holding) for the proposition that not all inaccuracies cause harm or a material risk of harm—supporting the conclusion that Harding’s “date updated” allegation lacked actionable significance as pleaded.

E. Appellate Forfeiture / Abandonment

• Access Now, Inc. v. Sw. Airlines Co.: Used to deem Harding’s breach of contract argument abandoned because he did not brief it.
• United States v. Campbell (en banc): Cited for the limited circumstances in which the court may reach forfeited issues—none applicable here.
• Timson v. Sampson: Reinforces that pro se status does not excuse forfeiture.
• Sapuppo v. Allstate Floridian Ins. Co.: Critical to the CRA portion: when a district court provides alternative grounds, an appellant must challenge them all; Harding’s failure to challenge the “not actionable” alternative holding meant automatic affirmance.

3.2 Legal Reasoning: How the Court Reached the Result

A. Upstart: Claim Preclusion Bars Relitigation Absent Plausible New Post-Award Inaccuracy

The court treated the arbitration award (and its confirmation) as a final, preclusive adjudication under Greenblatt v. Drexel Burnham Lambert, Inc.. Harding did not meaningfully contest three elements (finality, competent jurisdiction, identical parties), so the analysis centered on the “same cause of action” element—whether the lawsuit arose from the same nucleus of operative facts and whether the new claims could have been brought previously.

Harding’s core theory was temporal: every new dispute supposedly triggers a fresh furnisher duty and thus a new claim. The panel did not reject that proposition in the abstract; instead, it held Harding failed at the pleading threshold under Milgram v. Chase Bank USA, N.A. because his complaint did not plausibly identify:

• a genuinely new post-August 2023 inaccuracy attributable to information Upstart furnished to the CRAs; or
• new facts Upstart could have uncovered after August 2023 showing that previously reported information was inaccurate or incomplete.

The only “new” allegation he identified was a TransUnion “date updated” entry, but he did not tie that to new furnishing by Upstart beyond generalized allegations about dispute forwarding. With no pleaded new inaccuracy, the case remained the same dispute over the accuracy of reporting tied to the Upstart loan—already adjudicated in arbitration.

The panel also addressed Harding’s attempt to add § 1681s-2(b)(1)(D) and (E) theories. Those duties arise only if the investigation finds inaccuracies/incompleteness or if the information cannot be verified. The arbitrator’s findings (no proof of inaccuracy/nonverification) undercut the factual predicates for those duties and, in any event, did not show why such theories “could not have been brought” in arbitration.

B. TransUnion and Experian: Nonmutual Issue Preclusion Blocks “Inaccuracy” as the Threshold Element

For CRA claims under § 1681e and § 1681i, the panel—relying on Losch v. Nationstar Mortg. LLC—treated factual inaccuracy as a threshold element. The arbitration record showed Harding had placed the same alleged reporting errors at issue: missing “date of first delinquency,” missing “compliance condition code,” missing “date closed,” and allegedly inaccurate payment/balance history, among others.

Applying Miller's Ale House, Inc. v. Boynton Carolina Ale House, LLC (quoting Taylor v. Sturgell), the court concluded:

• Identical issue: whether the reporting was inaccurate (as pleaded now) matched the inaccuracies Harding litigated in arbitration.
• Actually litigated: the issue was presented through submissions and an evidentiary hearing.
• Critical and necessary: because accuracy/inaccuracy was essential to the arbitration’s resolution of the furnisher-dispute claims.
• Full and fair opportunity: Harding had a hearing and chance to present evidence, satisfying Greenblatt v. Drexel Burnham Lambert, Inc..

The nonparty status of TransUnion and Experian did not prevent them from invoking preclusion because Hart v. Yamaha-Parts Distribs., Inc. permits nonmutual defensive collateral estoppel against a plaintiff.

C. The “Date Updated” Allegation: Not Actionable (and the Appeal Point Was Forfeited)

The panel identified the “date updated” allegation as the only possible non-estopped inaccuracy, but it affirmed on forfeiture grounds: the district court alternatively held that Harding offered no legal or factual support that the “date updated” discrepancy produced a materially misleading report or harm, citing Spokeo, Inc. v. Robins. Under Sapuppo v. Allstate Floridian Ins. Co., Harding’s failure to challenge that alternative holding required affirmance.

3.3 Impact: What This Opinion Likely Changes (or Reinforces) Going Forward

• Arbitration can practically end the dispute over “accuracy” for later FCRA suits tied to the same account. The opinion reinforces that a final arbitral decision—especially one later confirmed—can preclude later litigation, not only against the furnisher (claim preclusion) but also against nonparty CRAs (issue preclusion) when the same “inaccuracy” issue was decided.
• “New dispute letter” is not enough; plaintiffs must plead a new post-award factual inaccuracy. The court’s use of Milgram v. Chase Bank USA, N.A. turns “ongoing duties” into a pleading discipline: to avoid preclusion, a plaintiff must identify new inaccurate/incomplete information and connect it to the furnisher/CRA conduct after the prior adjudication.
• Nonmutual estoppel becomes a powerful defense for CRAs when the furnisher already won an accuracy determination. The decision operationalizes Hart v. Yamaha-Parts Distribs., Inc. in the FCRA setting: CRAs may leverage arbitration findings even though they were not arbitration parties.
• Materiality and harm screening for “technical” inaccuracies remains central. By pointing to Spokeo, Inc. v. Robins (even though affirmance rested on forfeiture), the case signals skepticism toward claims premised on minor metadata fields (like “date updated”) absent a plausible theory of misleadingness or adverse effect.
• Appellate briefing choices can be outcome-determinative. The decision underscores that alternative holdings must be challenged (Sapuppo v. Allstate Floridian Ins. Co.) and that unbriefed claims are abandoned (Access Now, Inc. v. Sw. Airlines Co.), even for pro se litigants (Timson v. Sampson).

4. Complex Concepts Simplified

Res Judicata: Claim Preclusion vs. Issue Preclusion

• Claim preclusion (traditional res judicata): you cannot sue again over the same transaction/events (the “same nucleus of operative facts”) against the same party when you already had a final decision. In this case, it blocked Harding’s renewed suit against Upstart.
• Issue preclusion (collateral estoppel): even in a different claim (or against a different defendant), you cannot relitigate a specific issue (like “was the report inaccurate?”) that was actually decided and necessary to the prior judgment. In this case, it blocked Harding from relitigating “accuracy” against TransUnion/Experian.

Nonmutual Defensive Collateral Estoppel

“Nonmutual” means the new defendant wasn’t a party to the first case. “Defensive” means the defendant uses the prior ruling to stop the plaintiff from relitigating a decided issue. Under Hart v. Yamaha-Parts Distribs., Inc., CRAs can use that doctrine against a plaintiff who already litigated the same issue elsewhere.

Furnisher vs. Consumer Reporting Agency (CRA) Under the FCRA

• A furnisher (Upstart) supplies account information to CRAs. Private lawsuits generally target furnishers only under § 1681s-2(b) after a dispute is sent through the CRA process (per Felts v. Wells Fargo Bank, Nat'l Ass'n).
• A CRA (TransUnion/Experian) compiles and reports consumer information. Claims often proceed under § 1681e(b) (reasonable procedures to assure accuracy) and § 1681i (reasonable reinvestigation after dispute), but both require a plausible, actionable inaccuracy (per Losch v. Nationstar Mortg. LLC).

“Inaccuracy” Must Be Meaningful

Not every discrepancy supports liability. As reflected in the district court’s reliance on Spokeo, Inc. v. Robins, a plaintiff typically must plausibly show that the challenged entry is materially misleading or harmful—not merely technically imperfect.

5. Conclusion

Harding v. TransUnion LLC reinforces a practical rule for FCRA litigation following arbitration: a final arbitral determination on the accuracy of reporting tied to a specific account can preclude later suits not only against the furnisher (by claim preclusion) but also against nonparty CRAs (by issue preclusion). The decision further highlights that plaintiffs seeking to avoid preclusion must plead genuinely new post-award factual inaccuracies and connect them to actionable statutory duties—while also preserving arguments on appeal when a district court offers alternative grounds for dismissal.

Publication note: The opinion is “NOT FOR PUBLICATION,” so it is not binding precedent in the same manner as published Eleventh Circuit opinions, but it provides a detailed roadmap of how the court applies preclusion doctrines in the FCRA context when an arbitration award has already resolved the core “accuracy” dispute.