REVISED JULY 1, 2002

         IN THE UNITED STATES COURT OF APPEALS

                 FOR THE FIFTH CIRCUIT



                     No. 00-31254



JAMES YOUNG,


                                      Plaintiff-Appellant,


     versus


EQUIFAX CREDIT INFORMATION
SERVICES INC; ET AL,

                                      Defendants,


EQUIFAX CREDIT INFORMATION SERVICES
INC; J C PENNEY CO., INC.; CREDIT
BUREAU OF LAKE CHARLES INC,

                                      Defendants-Appellees.
                _______________________


JAMES YOUNG,


                                      Plaintiff-Appellant,


versus
       CREDIT BUREAU OF LAKE CHARLES
       INC; EQUIFAX CREDIT INFORMATION
       SERVICES INC; J C PENNY CO, INC,

                                                           Defendants-Appellees.




               Appeal from the United States District Court
                   for the Western District of Louisiana

                                      June 11, 2002

Before GARWOOD, WIENER, and CLEMENT,1 Circuit Judges.

GARWOOD, Circuit Judge:

       Plaintiff-appellant James Young (Young) appeals the dismissal

on summary judgment of his action against defendants-appellees J.C.

Penney Co. (Penney), Equifax Credit Information Services, Inc.

(Equifax), and Credit Bureau of Lake Charles (CBLC).                           We affirm in

part and vacate and remand in part.

                            Facts and Proceedings Below

       Young contends that the defendants injured him by publishing

defamatory credit information concerning a Penney department

store charge account (the Penney account) that another person

fraudulently opened in his name. On January 27, 1999, Young filed

suit against the defendants in the 9th Judicial District Court

for the Parish of Rapides, Louisiana alleging breaches of earlier



       1
        Judge Edith Brown Clement participated by designation in the oral argument of this case as
a United States District Judge for the Eastern District of Louisiana. Since that time she has been
appointed as a Fifth Circuit Judge.

                                                2
settlement agreements and new torts, including violations of the

Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681 - 1681u.

     Young alleges that Pamela Odom (Odom), who was formerly

Young’s live-in girlfriend and who is the mother of Young’s minor

daughter, opened the joint charge account in Young’s name without

his consent in 1992.   The Penney account became delinquent and

the delinquency appeared on Young’s credit report.   Penney

allegedly reported information concerning the delinquent account

to CBLC and Equifax.   CBLC and Equifax are affiliated entities

that share a common credit reporting database and issue consumer

credit reports to potential creditors.   Young alleges he was

denied credit based on the information about the Penney account

that appeared on credit reports issued by CBLC and Equifax.

Young disputed the Penney account with each of the defendants.

     Odom allegedly opened other fraudulent accounts in Young’s

name with other creditors; these accounts are not at issue in the

present case.   In 1996, Young filed a suit in state court (Young

I) against the current defendants and several others in regard to

the various disputed accounts, including the Penney account.    In

September 1997, Young settled his claims against Penney, Equifax,

and CBLC, and the court dismissed his claims against those

defendants with prejudice.   At that time, Young executed releases

evidencing the settlement.

     The relevant language of the release to Penney (the Penney


                                 3
Release) provided:

     James Young releases, acquits, discharges, and
     covenants to hold harmless J.C. Penny [sic] Co., Inc. .
     . . from any and all actions, causes of action, . . .
     and claims of every type, and also any injuries or
     damages not now known or which may later develop, all
     resulting from the alleged theft of his identity
     relative to the allegedly erroneous and/or fraudulent
     extension of credit in his name and all other claims as
     are more particularly described in that certain suit
     styled [Young I] on the docket of the Ninth Judicial
     District Court, State of Louisiana, bearing Civil
     Docket Number 186,314.

The relevant language of the release to Equifax and CBLC (the

Equifax/CBLC Release) provided as follows:

     [Young] does hereby release, acquit and forever
     discharge Credit Bureau of Lake Charles, Inc. and
     Equifax Credit Information Services, their agents,
     employees, insurers, successors, assigns and attorneys,
     of and from any and all actions or cause of action
     whatever, which he now has or may hereafter have
     arising out of the occurrence as set forth in the above
     mentioned suit, including all claims for costs,
     expenses, loss of earnings, pecuniary and non-pecuniary
     damages, compensatory damages, punitive and exemplary
     damages and damages of any nature whatsoever.

     APPEARER AGREES this release includes all claims
     asserted against Credit Bureau of Lake Charles, Inc.
     and Equifax Credit Information Services in the above
     mentioned suit and authorizes his attorney to dismiss
     those claims with prejudice.

In consideration for these releases, each of the defendants paid

Young a sum of money.

     Young filed the present suit (Young II) in state court in

January 1999, alleging that after the above settlement and

releases the defendants continued to report the Penney account

data, in violation of the settlement agreements, the FCRA, and

                                4
state tort law.    Young’s complaint contended that the settlement

agreements included an agreement that the defendants would remove

the Penney account data from Young’s credit file.    Young alleged

that he was denied credit from other potential creditors because

of the continued reporting, after Young I was settled, of the

Penney account data.    The defendants removed Young II to the

United States District Court for the Western District of

Louisiana on February 25, 1999.

     On August 10, 2000, the district court entered judgment for

Penney pursuant to Penney’s Motion for Summary Judgment/Exception

of Res Judicata and dismissed Young’s claims against Penney with

prejudice.    The court found that the Young I settlement agreement

imposed no obligation on Penney to clear its credit records of

the offending information.    Young filed a motion for

reconsideration, or, in the alternative, to amend the judgment to

dismiss only his claim for breach of the settlement agreement.

Young argued that, just before the district court entered its

order, Equifax’s designee, Janet Mullins, testified in a

deposition that Penney had reported the Penney account

information to Equifax in July 1998, ten months after the Young I

settlement.    Young contended that Mullins’s deposition evidence

established a prima facie case for the new defamation alleged in

Young II.    The district court denied the motion because the

deposition did not add any information previously unavailable and


                                  5
also failed to establish the elements of defamation.       Within

thirty days, Young filed a notice of appeal from the grant of

summary judgment and the denial of the motion for

reconsideration.2

     On November 7, 2000, the district court granted summary

judgement for Equifax and CBLC.       The court again stressed that

the plain language of the settlement agreement did not require

that Equifax and CBLC delete the Penney account information or

otherwise modify Young’s credit records.       The court held that the

claims were barred as res judicata because, although the Penney

account information had since been reported repeatedly, it was

the same information that was at issue in Young I.       Thus, Young’s

new claims arose from the same occurrence set out in the first

suit and were barred by the settlement agreement.       Young could

have negotiated for removal of the offending information in the

Young I settlement agreement, but did not do so.       Young filed a

timely notice of appeal from the grant of summary judgment to



     2
      Young’s notice of appeal of the summary judgment in favor of
Penney was technically premature; the district court’s order was
not a final judgment because it neither disposed of the claims
against all the defendants nor was it certified as a final judgment
pursuant to Fed. R. Civ. P. 54(b). See Riley v. Wooten, 

, 804 (5th Cir. 1993). However, because the order would have
been appealable if the district court had certified it pursuant to
Rule 54(b) and because the district court did subsequently (and
prior to oral argument herein) dispose of all remaining parties and
claims, this court has jurisdiction over the appeal of the summary
judgment in favor of Penney. Barrett v. Atlantic Richfield Co., 

, 379 (5th Cir. 1996).

                                  6
Equifax and CBLC.

                             Discussion

I. Standard of Review

       This court reviews a district court’s grant of summary

judgment de novo.    Guillory v. Domtar Indus., Inc., 

,

1326 (5th Cir. 1996).    Summary judgment is proper if, after

adequate opportunity for discovery, the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

any affidavits filed in support of the motion, show that there is

no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law.    See Fed. R.

Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 

,

2511 (1986).    The moving party bears the burden of identifying an

absence of evidence to support the nonmoving party’s case.

Celotex Corp. v. Catrett, 

, 2554 (1986).    Summary

judgment is properly granted if the record does not contain

appropriate summary judgment evidence which would sustain a

finding in the nonmovant’s favor on any issue as to which the

nonmovant would bear the burden of proof at trial.    

53.

II. Res Judicata

       Because Young I was in state court, the settlement of that

suit has the same preclusive effect it would have under Louisiana

law.    Marnese v. Amer. Acad. of Orthopaedic Surgeons, 

1327, 1331 - 32 (1985); St. Paul Mercury Ins. Co. v. Williamson,

, 436 (5th Cir. 2000).   The Louisiana Code provision

governing res judicata is La. Rev. St. § 13:4231:

     4231. Res judicata

     Except as otherwise provided by law, a valid and final
     judgment is conclusive between the same parties, except
     on appeal or other direct review, to the following
     extent:

     (1) If the judgment is in favor of the plaintiff, all
     causes of action existing at the time of final judgment
     arising out of the transaction or occurrence that is
     the subject matter of the litigation are extinguished
     and merged in the judgment.

     (2) If the judgment is in favor of the defendant, all
     causes of action existing at the time of final judgment
     arising out of the transaction or occurrence that is
     the subject matter of the litigation are extinguished
     and the judgment bars a subsequent action on those
     causes of action.

     (3) A judgment in favor of either the plaintiff or the
     defendant is conclusive, in any subsequent action
     between them, with respect to any issue actually
     litigated and determined if its determination was
     essential to that judgment.

     A “transaction or compromise is an agreement between two or

more persons, who, for preventing or putting an end to a lawsuit,

adjust their differences by mutual consent, in the manner upon

which they agree and which every one of them prefers to the hope

of gaining, balanced by the danger of losing.”   La. Civ. Code

Ann. art. 3071.   For res judicata purposes, “[t]ransactions have,

between the interested parties, a force equal to the authority of

things adjudged.”   La. Civ. Code Ann. art. 3078.


                                 8
     The Penney account data at issue in the instant case is the

same as that at issue in Young I and res judicata would clearly

bar a subsequent action based on the publications of that data

occurring before final judgment was rendered in Young I.       See La.

Rev. St. § 13:4231.   But res judicata is not a per se bar to the

present suit, which is based on publications occurring after

final judgment was entered in Young I.       To be barred under the

plain language of Louisiana’s res judicata statute, a cause of

action must have existed “at the time of final judgment arising

out of the transaction or occurrence that is the subject matter

of the litigation.”   

cannot state a cause of

action until he can identify “both a wrongful act and resultant

damages.”   Guitreau v. Kucharchuk, 

, 580 (La.

2000).   Under the Louisiana law of defamation, each subsequent

publication of a defamatory statement is a new and separate

delictual cause of action.     Nolan v. Jefferson Parish Hosp. Serv.

Dist. No. 2, 

, 730 (La. App. 5 Cir. 2001); Wiggins

v. Creary, 

, 781 (La. App. 1 Cir. 1985), writ

denied, 

(La. 1985); Neyrey v. Lebrun, 

, 725 (La. App. 4 Cir. 1975).       We have adopted a similar rule

in our interpretation of the FCRA; the republication of credit

information resulting in a new denial of credit constitutes a

distinct harm and thus gives rise to a cause of action that is

separate from that arising from the original publication.       Hyde

                                   9
v. Hibernia Nat. Bank, 

, 450 (5th Cir. 1988).

     Young’s current causes of action did not exist at the time

final judgment was entered in Young I.     Young alleges new

wrongful acts, i.e., new publications of the Penney account data,

resulting in new damages, i.e., new denials of credit.

Therefore, the Young I compromises are only a bar to the present

suit if they comprehended future claims arising from future

republications.     See La. Civ. Code art. 3073.

III. Principles of Interpretation

     A transaction or compromise is a written contract and it is

construed according to the same general rules applicable to

contracts.   Brown v. Drillers, Inc., 630 So. 2d 741,748 (La.

1994).   As a general rule of construction, “[w]hen the words of a

contract are clear and explicit and lead to no absurd

consequences, no further interpretation may be made in search of

the parties’ intent.”    La. Civ. Code art. 2046; see also 

.    A supplementary rule of construction governs

the interpretation of a compromise agreement; La. Civ. Code art.

3073 provides:

     Transactions regulate only the differences which appear
     clearly to be comprehended in them by the intention of
     the parties, whether it be explained in a general or
     particular manner, unless it be the necessary
     consequence of what is expressed; and they do not
     extend to differences which the parties never intended
     to include in them.

La. Civ. Code art. 3073.


                                  10
     In determining the preclusive effects of the compromise

agreements in this case, we look to Louisiana law.    See St. Paul

Mercury Ins. 

.    In Brown, the Louisiana Supreme Court

considered whether a compromise entered into by an injured worker

and his wife precluded the widow’s subsequent wrongful death suit

against the employer.   Applying the principles discussed above,

the Brown court held that the compromise did not, as a matter of

law, cover the widow’s wrongful death suit.     Brown, supra at 758.

The release agreement in Brown contained general recitals

purporting to release the defendants from liability on any claims

arising “on account of or relating in any way to injuries

suffered by Buel Brown on or about [the date of the claimed

tort].”   

  Although the widow’s wrongful death claim

alleged that her husband’s death resulted from the same injury at

issue in the compromise, the court found that this separate,

future wrong was not within the scope of the differences that the

parties intended to settle by the compromise.    

     The Louisiana courts appear reluctant to construe a

compromise agreement broadly, especially with regard to future

claims: “[R]eleases of future actions are narrowly construed to

assure that the parties fully understand the rights released and

the resulting consequences. As a result, if the release

instrument leaves any doubt as to whether a particular future

action is covered by the compromise, it should be construed not


                                 11
to cover such future action.”   

  Further, the party

interposing a release instrument to support an exception of res

judicata bears the burden of proof “to establish the requisites

for a valid compromise, including the parties’ intent to settle

the differences being asserted in the action in which it is

interposed.”   

IV. The Equifax/CBLC Release

     Applying these principles of construction to the

Equifax/CBLC Release, we conclude that it does not preclude

Young’s present suit as a matter of law.   That release purported

to settle all claims “which [Young] now has or may hereafter have

arising out of the occurrence as set forth in the above mentioned

suit [i.e., Young I].”   Both Young I and the present suit

involved publication of the same Penney account information.

However, as explained above, the occurrences that give rise to

Young’s presently existing causes of action include the new

publications and the damages resulting from them.    These new

claims did not exist at the time the Equifax/CBLC Release was

executed and there is at least ambiguity as to whether they arise

from the same “occurrence as set forth in” Young I.3    The plain

     3
      Equifax and CBLC direct our attention to Martens v. Davis,
No. Civ. A. 97-2997, 

(E.D. La. May 12, 1998)
(holding that a compromise agreement barred subsequent defamation
claims for publication of the same material). Even if Martens were
controlling precedent, that case is distinguishable. In Martens,
the allegedly defamatory material had been published before the
compromise was executed; indeed, that publication took place

                                12
language of the release suggests that only the then-existing

causes of action were compromised, and this would not be an

absurd consequence.      Cf. La. Civ. Code art. 2046.   The settlement

did encompass future harm resulting from the original

publications, but did not unambiguously comprehend future

repetition of the libel.     That is, it did not unambiguously

preclude Young from suing again when repetition of the libel

causes new damages and, thus, a new cause of action accrues.         The

release was a matter on which Equifax and CBLC would have had the

burden of proof at trial.     Under the Louisiana law of compromise

interpretation, a genuine issue of material fact regarding what

the parties intended to compromise precludes summary judgment.

EM Nominee P’ship Co. v. Arkla Energy Res., 

, 1375

(La. App. 2 Cir. 1993).     Accordingly, the district court erred in

rendering summary judgment that the claims against Equifax and

CBLC were barred by the earlier release; there was at least an

issue of fact in that respect.

V.   The Penney Claims

     The language of the Penney Release is arguably broader than

that of the Equifax/CBLC Release.       Rather than releasing only

those claims arising from the “occurrence” set forth in Young I,

it purports to release Penney of liability “from any and all



earlier than the publication that the plaintiff sued over in his
first lawsuit. 

We do not disagree with Martens.

                                   13
actions, causes of action, . . . all resulting from the alleged

theft of his identity relative to the allegedly erroneous and/or

fraudulent extension of credit in [Young’s] name.”     It is not

clear that this language is broader than that at issue in Brown,

which purported to release all claims arising from the decedent’s

accident but was held not to preclude the widow’s wrongful death

action arising from that accident.     However, we affirm the

summary judgment in favor of Penney because, as explained below,

Young has failed to identify competent evidence to support

necessary elements of his claims.

       The FCRA preempts state law defamation or negligent

reporting claims unless the plaintiff consumer proves “malice or

willful intent to injure” him.    15 U.S.C. § 1681h(e); see also

Cushman v. Trans Union Corp., 

, 229 (3d Cir. 1997);

Bloom v. I.C. Sys., Inc., 

, 1069 (9th Cir. 1992);

Thornton v. Equifax, Inc., 

, 703 (8th Cir. 1980).

Young has pointed to no evidence supporting an inference that

Penney reported information with malice or willful intent toward

him.

       Even if Young’s state law claims are not preempted, he has

failed to present competent evidence regarding at least two

elements of a defamation claim.    In Louisiana, the elements of a

defamation action are “(1) defamatory words; (2) publication; (3)

falsity; (4) malice, actual or implied; and (5) resulting


                                  14
injury.”   Cangelosi v. Schegmann Bros. Giant Super Markets, 

, 198 (La. 1980).     As we noted above, Young has not

produced competent evidence of malice.     Further, he has not

produced competent evidence that Penney republished the Penney

account information to Equifax and CBLC after the Young I

settlement.

     As evidence of the republication, Young points first to the

deposition of Equifax representative Janet Mullins.     We note that

this deposition was not taken until after Young responded to

Penney’s motion for summary judgment and may not be properly part

of the Penney case summary judgment record.     Even if it is

properly considered, the deposition does not support Young’s

contention.   Mullins testified that an Equifax “snapshot”4 showed

that Equifax had deleted the Penney account information from

Young’s credit file in July 1998 and went on to state that the

“snapshot” “says [the Penney account information was] reported

July of ‘98".   Mullins did not specify who did the reporting or

to whom the report was made.5    Young next points to his own


     4
      A “snapshot” or “frozen data report” is a computer printout
that summarizes the status of a consumer’s credit file at a given
point in time.   It reflects the data that the credit reporting
agency has received and reports to potential creditors.
     5
      The “snapshot” does not state that Penney transmitted the
Penney account data to Equifax after the September 1997 Young I
settlement and Mullins did not testify that the “snapshot”
indicated such a transmission. Although it can be inferred that
Penney initially reported the data to Equifax, nothing supports the
inference that the July 1998 “snapshot” reflected a new publication

                                  15
affidavit, which says that Penney continued to report the

allegedly fraudulent information.      Conclusory affidavits are not

sufficient to defeat a motion for summary judgment.      See Galindo

v. Precision Am. Corp., 

, 1216 (5th Cir. 1985).

Young also directs us to the deposition of Penney representative

Elaine Underwood.   When Young’s counsel asked Underwood if she

could “refute Ms. Mullins’ testimony that J.C. Penney reported

its account in July of 1998 to Equifax,” Underwood said that she

could not.   As we have noted, Mullins did not actually testify

that Penney reported the account information.     In any event,

Underwood’s inability to either confirm or deny this ultimate

issue of fact is not probative.

     Young has abandoned his breach of contract claim.

Therefore, Young’s claims arising under the FCRA are all that

remain against Penney.

     Penney argues that Young does not have a private right of

action under FCRA because Penney is a “furnisher of information”

rather than a “consumer reporting agency.”     We do not ultimately

resolve this argument.   15 U.S.C. §§ 1681n and 1681o impose civil

liability on “any person” violating duties under FCRA. 15 U.S.C.

§§ 1681n, 1681o.    Section 1681s-2(b) imposes duties on

furnishers of information to, inter alia, investigate disputed



of that data. It is just as likely that Equifax simply retained
the previously reported data in its database.

                                  16
information and report the results of any such investigation to

the consumer reporting agency.     15 U.S.C. § 1681s-2(b).       The

plain language of FCRA thus appears to impose civil liability on

“any person” violating a FCRA duty unless some exception applies.

Section 1681s-2(c) does provide an exception to civil liability

for failure to comply with Section 1681s-2(a) (prohibiting

reporting of inaccurate information), 15 U.S.C. § 1681s-2(c), and

Section 1681s-2(d) provides that enforcement of Section 1681s-

2(a) shall be by government officials, 15 U.S.C. § 1681s-2(d).

Nothing in these sections precludes a private right of action for

violation of the investigation and reporting requirements of

Section 1681s-2(b).   We need not decide, and do not decide,

whether a private right of action exists against a furnisher of

information because, as we explain below, Young has not

established an element that would be required if any such action

does exist.   We observe – without approving or disapproving the

holding – that the only circuit court that has decided this issue

held that there is a private right of action.      Nelson v. Chase

Manhattan Mortgage Corp., 

(9th Cir. 2002).

     However, the FCRA establishes a duty for a consumer

reporting agency (like Equifax or CBLC) to give notice of a

dispute to a furnisher of information (like Penney) within five

business days from the time the consumer notifies the consumer

reporting agency of the dispute.      15 U.S.C. § 1681i(a)(2).    Such


                                 17
notice is necessary to trigger the furnisher’s duties under

Section 1681s-2(b).   15 U.S.C. § 1681s-2(b)(1) (“After receiving

notice pursuant to [section 1681i(a)(2)] of this title of a

dispute . . . .” (emphasis added)).    Thus, any private right of

action Young may have under § 1681s-2(b) would require proof that

a consumer reporting agency, like Equifax or CBLC, had notified

Penney pursuant to § 1681i(a)(2).      See 15 U.S.C. § 1681s-2(b)

(cross-referencing § 1681i(a)(2) and establishing duties of

furnishers of information arising upon notice of a dispute); see

also Nelson, at 1060.   Young points to no evidence tending to

prove that Penney received notice of a dispute from a consumer

reporting agency within five days, as is required to trigger

Penney’s duties under Section 1681s-2(b).6    Because Young has not

satisfied the notice element with respect to Penney, his FCRA

claims fail as a matter of law.

                            Conclusion

     Because we hold that the district court erred in granting

summary judgment that the Equifax/CBLC Release precludes Young’s

present claims, we VACATE the judgment in favor of defendants

Equifax and CBLC and REMAND Young’s claims against those

defendants for further proceedings not inconsistent with this


     6
      In her deposition, Mullins did report contacting Penney
regarding the Penney account dispute in June 1997. Because Young
first disputed the Penney account information no later than 1996,
this contact clearly would not satisfy Section 1681i(a)(2)’s five-
day provision.

                                  18
opinion.    With regard to Penney, Young has not proffered

competent evidence of the elements necessary for going forward

with his state law claims.    As to the FCRA claims, Young has not

pleaded nor proffered evidence that Penney received the notice

pursuant to Section 1681i(a)(2) that would give rise to duties

under Section 1681s-2(b).    Therefore, we AFFIRM the judgment of

the district court in favor of Penney.

           AFFIRMED in part; VACATED and REMANDED in part.




                                 19