NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 31 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MATTHEW SPONER, No. 19-35892

Plaintiff-Appellant, D.C. No. 3:17-cv-02035-HZ

v.

MEMORANDUM*

WELLS FARGO BANK, N.A.,

Defendant-Appellee,

Appeal from the United States District Court for the District of Oregon Marco A. Hernandez, Chief District Judge, Presiding

Argued and Submitted March 1, 2021 Portland, Oregon

Before: PAEZ and WATFORD, Circuit Judges, and TUNHEIM,** District Judge.

Matthew Sponer appeals the district court’s judgment, after a jury trial, in

his action under the Fair Credit Reporting Act (“FCRA”) against Wells Fargo

Bank, N.A. Sponer alleged that Wells Fargo informed credit reporting agencies

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable John R. Tunheim, Chief United States District Judge for the District of Minnesota, sitting by designation. that he had defaulted on a $29,000 car loan when it knew his identity had been

stolen and the loan was not his. The jury found that Wells Fargo willfully violated

the FCRA but awarded no punitive damages. The district court entered a $101,000

judgment against Wells Fargo. Sponer seeks a new trial on punitive damages.

We review a district court’s evidentiary rulings for an abuse of discretion.

Barranco v. 3D Sys. Corp., 952 F.3d 1122, 1127 (9th Cir. 2020). We review a

district court’s formulation of jury instructions in a civil case for an abuse of

discretion but review de novo whether the instructions misstated the law. Peralta

v. Dillard, 744 F.3d 1076, 1082 (9th Cir. 2014) (en banc). We affirm.

1. Even assuming the district court erred in its ruling under Federal Rule of

Civil Procedure 37(c)(1) that Exhibit 560 was admissible, any such error was

harmless. Exhibit 560 contained Wells Fargo’s written procedures for handling

fraud-based automated consumer dispute verification (“ACDV”) requests. Sponer

contends that those written procedures were essential to Wells Fargo’s argument to

the jury that it had not willfully violated the FCRA, and that even if it had engaged

in a willful violation, punitive damages were not warranted. But Wells Fargo’s

employees were able to testify about those same procedures based on their

personal knowledge. Thus, Wells Fargo could have presented the same arguments

to the jury even if Exhibit 560 had not been admitted.

2. The district court did not abuse its discretion by permitting Wells Fargo to

2 introduce evidence and argument about its requests for documents from Sponer.

The district court ruled that this evidence was admissible because it was relevant to

the issue of whether Wells Fargo’s investigation was reasonable. Although Sponer

asserts that the FCRA does not permit a company to condition its investigation on

receiving information from the customer, and the district court thus erred in

admitting this evidence, that is not what Wells Fargo argued at trial. At trial, Wells

Fargo asserted that Sponer’s delayed and incomplete responses impeded its

investigations. And as the parties concede, evidence and argument about the

requests for information were thus relevant to the issue of reprehensibility, directly

at issue in the jury’s assessment of punitive damages. See White v. Ford Motor

Co., 500 F.3d 963, 975 (9th Cir. 2007) (“reprehensibility is judged in relation to

the conduct and actions of others”).

Nor did the district court err in refusing to provide a jury instruction

clarifying Wells Fargo’s obligations under the FCRA. As discussed, Wells Fargo

did not argue that it was permitted to condition its investigation on Sponer’s

cooperation but rather asserted that Sponer’s delayed and incomplete responses

impeded its investigations.

3. Because the jury awarded $0 in punitive damages, the district court’s

instruction to the jury not to consider Wells Fargo’s net worth was not harmful and

does not warrant a new trial on punitive damages. A jury’s consideration of wealth

3 in imposing punitive damages is both lawful and appropriate. State Farm Mut.

Auto. Ins. Co. v. Campbell, 538 U.S. 408, 427-28 (2003). But the jury here was

instructed that punitive damages could be awarded and declined to do so. Sponer

has not demonstrated that, absent the net worth instruction, the jury would have

done otherwise. See Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir. 2009) (“An

error in instructing the jury in a civil case requires reversal unless the error is more

probably than not harmless.”) (internal citations and quotation marks omitted).

AFFIRMED.

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