text:
    Michael T. DREHER, Plaintiff-Appellee, v. EXPERIAN INFORMATION SOLUTIONS, INC., Defendant-Appellant, and Equifax, Inc.; Trans Union, LLC; Equifax Information Services, LLC; Cardworks, Inc.; Cardworks Servicing, LLC, Defendants.
    No. 15-2119
    United States Court of Appeals, Fourth Circuit.
    Argued: March 21, 2017
    Decided: May 11, 2017

      ARGUED: Meir Feder, JONES DAY, New York, New York, for Appellant. Dee-pak Gupta, GUPTA WESSLER PLLC, Washington, D.C., for Appellee. ON BRIEF: Daniel J. McLoon, JONES DAY, Los Angeles, California, for Appellant. Jonathan E. Taylor, Richard J. Rubin, GUPTA WESSLER PLLC, Washington, D.C.; Leonard A. Bennett, Matthew J. Er-ausquin, Susan M. Rotkis, CONSUMER LITIGATION ASSOCIATES, P.C., Newport News, Virginia; Kristi Cahoon Kelly, Andrew Guzzo, KELLY & CRANDALL, PLC, Fairfax, Virginia, for Appellee.
    Before KING, SHEDD, and THACKER, Circuit Judges.
   Vacated and remanded by published opinion. Judge Thacker wrote the opinion, in which Judge King and Judge Shedd joined.

THACKER, Circuit Judge:

This appeal is from a $11,747,510 judgment in an approximately 69,000 member class action. We consider whether the decision of Experian Information Solutions, Inc. (“Experian”) to list a defunct credit card company, rather than the name of its servicer, as a “source! ] of .... information” on an individual’s credit report—without more—creates sufficient injury in fact under the Fair Credit Reporting Act (“FCRA”) for purposes of Article III standing. 15 U.S.C. § 1681g(a)(2).

We conclude that where an individual fails to allege a concrete injury stemming from allegedly incomplete or incorrect information listed on a credit report, he or she cannot satisfy the threshold requirements of constitutional standing. Here, we discern no concrete injury on behalf of the named plaintiff. Therefore, we vacate and remand with instructions that the case be dismissed.

I.

A.

In 2010, Michael Dreher was undergoing a background check for a security clearance when the federal government discovered he was associated with a delinquent credit card account. Dreher’s cousin had taken out the credit card in Dreher’s name to cover expenses for a failing bowling alley. To clear up the matter, Dreher requested credit reports from three credit agencies, including Experian. Dreher received a series of Experian credit reports, which listed a delinquent account under the names “Advanta Bank” or “Advanta Credit Cards” (collectively, “Advanta”) and provided Pennsylvania and New York P.O. Box addresses. J.A. 160,168.

Thereafter, in early 2011, Dreher sent letters to Advanta. First, in March 2011, he “requested some verification that [he] owed this debt,” and receiving no response, he sent another letter on April 15, 2011, which was similar in content. J.A. 155. Dreher then received a response on Advanta letterhead dated April 18, 2011, with a March 2011 statement showing an outstanding balance of $15,746.94, along with the online credit card application bearing Dreher’s name and social security number. On May 23, 2011, Dreher sent a follow-up correspondence “instructing [Ad-vanta] to delete the inaccurate information from [his] credit files.” Id. Again receiving no response, he “lost hope that Advanta ... would fix their mistake.” Id. He contacted Experian directly, about the issue, but still his credit report listed the delinquent Advanta account. According to Dre-her, this process caused “additional stress and wasted hours of [his] time.” Id. at 156. It did not, however, affect his security clearance; in fact, based on Dreher’s representation that he was paying down the balance, the government approved his clearance, which took a total of eight days to process. The Advanta account was finally “deleted from Dreher’s credit file” on June 6, 2012. Stipulation at 3, Dreher v. Experian Infos. Sols., No. 3:11-cv-624 (E.D. Va. filed Nov. 6, 2015), ECF No. 411.

B.

Unbeknownst to Dreher, in early 2010, the Utah Department of Financial Institutions had closed Advanta, which had failed to withstand the 2008 financial crisis, and named the Federal Deposit Insurance Corporation (“FDIC”) as receiver. Deutsche Bank Trust Company (“Deutsche Bank”) received a security interest in Advanta receivables and appointed CardWorks, Inc., and CardWorks Servicing LLC (collectively, “CardWorks”) as servicer of Ad-vanta’s portfolio, effective August 1, 2010. This meant that CardWorks would “re-spondí ] to credit card customer complaints and effectf] compromises and settlements of ongoing credit card customer disputes.” J.A. 346. In its capacity as Ad-vanta’s servicer, CardWorks decided to do business using the Advanta name, the phone number Advanta used prior .to August 2010, and the Advanta website, with the goal of “makfing] the servicing transfer seem as innocuous as possible.” Id.

CardWorks then had to decide how to list Advanta accounts, or tradelines, on consumer credit reports. On October 4, 2010, Tom Wineland, a post-closing asset manager for the FDIC, signed a letter to Experian agreeing that the tradeline appearing for all Advanta accounts on Expe-riafl credit reports should bear the Advan-ta name. Authorized representatives from CardWorks and the former Advanta Bank also signed the letter. Wineland explained that he agreed to using the Advanta moniker because the successor creditor of the Advanta accounts, Deutsche Bank, remained the same after Advanta was placed in receivership; in addition, “Advanta Credit Cards” “was the name least confusing to cardholders who (a) might not recognize the new servicer of their credit accounts represented in the tradelines, and (b) ... would continue to access their accounts and make payments at the [Advan-ta] website.” J.A. 344. Using the name of the initial creditor also comported with Experian’s “common practice to utilize an associated subscriber name that will assist consumers to recognize the accounts and enable consumers to correct any inaccuracies or lodge disputes if necessary.” Id. at 354.

C.

On September 21, 2011, Dreher individually sued Experian and CardWorks in the Eastern District of Virginia. He later amended his complaint to assert three class claims and seven individual claims on the basis that, inter alia, Experian willfully violated the FCRA by failing to include the name “CardWorks” in the Advanta trade-lines on its credit reports. On October 5, 2012, Experian moved for partial summary judgment on Dreher’s class claims, arguing that Dreher did not produce evidence of willfulness as required under the FCRA. On May 30, 2013, the district court denied the motion. It later certified the class to include

[a]ll natural persons who: (1) requested a copy of their consumer disclosure from .Experian on or after August 1, 2010; (2) received a document in response that identified “Advanta Bank” or “Advanta Credit Cards” as the only source of the information for the tradeline; (3) and whose “date of status” or “last reported” field reflected a date of August 2010- or later.

J.A. 327. On July 3, 2014, Experian filed a petition for permission to bring an interlocutory appeal on the certification issue, which this court denied. See Order, Experian Info. Sols., No. 14-325 (4th Cir. filed Sept. 2, 2014), ECF No. 16.

The parties then filed cross-motions for partial summary judgment on October 31, 2014, wherein Experian argued that Dre-her and the class members lacked Article III standing, and Dreher argued Experian willfully violated the FCRA. The district court granted Dreher’s motion, concluding’ as a matter of law that “Experian committed a willful violation of the [FCRA],” J.A. 407, because “[n]o jury could find Experi-an’s intentional omission of CardWorks was objectively reasonable,” id. at 404. In turn, it denied Experian’s motion, reasoning that the FCRA “creates a statutory right to receive the ‘sources of information’ for one’s credit report,” and when a credit reporting agency fails to disclose those sources, “it violates that right, thus creating a sufficient injury-in-fact for constitutional standing.” Id. at 390. The district court did not analyze whether the injury was specific and concrete. Instead, it concluded that any violation of the statute sufficed to create an Article III injury in fact. However, the district court also recognized “this Order involves a controlling question of law as to which there is substantial ground for difference of opinion [and] an immediate appeal ... would materially advance the ultimate termination of the litigation.” Id. at 407-08. Experian again attempted to lodge an interlocutory appeal with this court, to no avail. See Order, Experian Info. Sols. v. Dreher, No. 14-491 (4th Cir. filed Jan. 29, 2015), ECF No. 22.

In February 2015, the district court severed the class claim from the individual claims for separate jury trials. Rather than hold a jury trial on statutory and punitive damages on the class claim (Dreher did not seek actual damages), the parties stipulated to an award of $170 in statutory damages for each class member and no punitive damages. On August 26, 2015, the district court entered final judgment on behalf of Dreher and the class in the amount of $170 per class member, totaling over $11.7 million. Experian timely noted this appeal, and we held the case in abeyance pending the United States Supreme Court’s decision in Spokeo, Inc. v. Robins, — U.S. -, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016), which was decided in May of 2016.

II.

We review a district court’s grant of summary judgment de novo. “In doing so, we apply the same legal standards as the district court, and view all facts in the light most favorable to the nonmoving party.” Roland v. United States Citizenship & Immigration Servs., 850 F.3d 625, 628 (4th Cir. 2017) (internal quotation marks omitted). We likewise review legal questions regarding standing de novo. See David v. Alphin, 704 F.3d 327, 333 (4th Cir. 2013).

III.

The standing requirement stems from Article III, section 2 of the United States Constitution, which provides that the “judicial Power shall extend to all Cases [and] Controversies.” U.S. Const, art. Ill, § 2, cl. 1. Indeed, “no principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Spokeo, Inc. v. Robins, — U.S. -, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) (alteration omitted) (quoting Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997)). The law of standing “serves to prevent the judicial process from being used to usurp the powers of the political branches, and confínes the federal courts to a properly judicial role.” Id. (alterations, citations, and internal quotation marks omitted). Standing “is a threshold jurisdictional question” that ensures a suit is “appropriate for the exercise of the [federal] courts’ judicial powers.” Pye v. United States, 269 F.3d 459, 466 (4th Cir. 2001) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)).

In a class action matter, “wé analyze standing based on the allegations of personal injury made by the named plaintiff!]. Without a sufficient allegation of harm to the named plaintiff in particular, [he] cannot meet [his] burden of establishing standing.’” Beck v. McDonald, 848 F.3d 262, 269-70 (4th Cir. 2017) (citation omitted) (quoting Doe v. Obama, 631 F.3d 157, 160 (4th Cir. 2011)); see also Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 40 n.20, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976) (citing Warth v. Seldin, 422 U.S. 490, 502, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). In order to determine whether Dreher, the named plaintiff here, has standing—that is, whether he meets the “irreducible constitutional minimum” of a “case” or “con-, troversy”—we employ a familiar three-part test. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Dreher “must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, 136 S.Ct. at 1547 (citing Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130). The burden of establishing these elements falls on the party invoking federal jurisdiction, and all three elements áre necessary prerequisites to establish standing. See id. Here, Appellant stumbles on the first of these requirements: injury in fact.

A.

To establish injury in fact, “a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized.’ ” Spokeo, 136 S.Ct. at 1548 (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130). In Spokeo, the Supreme Court discussed the dual requirements of particularization and concreteness. There, the plaintiff, Thomas Robins, sued Spokeo, Inc. (“Spokeo”), a company that operates an online “people search engine,” for alleged violations of the FCRA. Id. at 1544. Robins alleged that Spokeo collected incorrect information i about him and disseminated it on its website. The district court dismissed the complaint for lack of standing, and the Ninth Circuit reversed, reinstating the claim. See id.

The Supreme Court vacated the Ninth Circuit’s decision because that court “failed to fully appreciate the distinction between concreteness and particularization.” Spokeo, 136 S.Ct. at 1550. The Court found that in analyzing the “particular and concrete” aspect of the standing requirement, the Ninth Circuit “elided” the “independent requirement” of concreteness. Id. at 1548. Rather, the Ninth Circuit decided Robins alleged a concrete injury for two reasons that bear on particularization: (1) he alleged that Spokeo “violated his statutory rights, not just the statutory rights of other people”; and (2) his “personal interests in the handling of his credit information are individualized rather than collective.” Id. (internal quotation marks omitted) (emphases in original). Therefore, the Court remanded for a proper consideration of the concreteness inquiry. See id. at 1550.

Although the Court declined to decide whether Robins’s complaint alleged a sufficiently concrete injury, it did give direction upon remand, explaining that concreteness “is quite different from particularization.” Spokeo, 136 S.Ct. at 1548. A concrete injury is “de facto,” meaning that “it must actually exist” and is “real, and not abstract.” Id. (internal quotation marks omitted). Concreteness, however, “is not ... necessarily synonymous with ‘tangible.’ ” Id. at 1549. “Although tangible injuries are perhaps easier to recognize, ... intangible injuries can nevertheless be concrete.” Id. (citing Pleasant Grove City v. Summum, 555 U.S. 460, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009) (free speech); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) (free exercise)). In order to decide whether an intangible harm constitutes an injury in fact, “history and the judgment of Congress play important roles.” Id. However, a plaintiff cannot automatically satisfy the injury in fact requirement just because “a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.” Id. One cannot “allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement.” Id.

As an example, discussing the FCRA specifically, the Spokeo Court explained “[a] violation of one of the FCRA’s procedural requirements may result in no harm”:

[E]ven if a consumer reporting agency fails to provide the required notice to a user of the agency’s consumer information, that information regardless may be entirely accurate. In addition, not all inaccuracies cause harm or present any material risk of harm. An example that comes readily to mind is an incorrect zip code. It is difficult to imagine how the dissemination of an incorrect zip code, without more, could work any concrete harm.

Id. at 1550 (footnote omitted). Thus, the Court noted that a technical violation of the FCRA may not rise to the level of an injury in fact for constitutional purposes.

B.

We now turn to the standing argument in this appeal. The FCRA provision at issue states that a consumer reporting agency (“CRA”) “shall, upon request ... clearly and accurately disclose to the consumer ... [t]he sources of the information [in the consumer’s file at the time of the request].” 15 U.S.C. § 1681g(a)(2) (emphasis supplied). Dreher alleged that Experian violated this provision because it “fail[ed] to clearly and accurately disclose the source of the Advanta Bank tradeline reporting,” which he claims is Card-Works. J.A. 49 (emphasis supplied). Thus, Dreher claims he suffered a cognizable “informational injury” because he was denied “specific information to which [he] w[as] entitled under the FCRA.” Appellees’ Br. 16-17 (internal quotation marks omitted). Even assuming arguendo CardWorks was a “source” as contemplated by § 1681g(a)(2) and, therefore, a statutory violation occurred particularized to Dreher, his complaint nonetheless fails to demonstrate a concrete injury.

1.

An “informational injury” is a type of intangible injury that can constitute an Article III injury in fact. Fed. Election Comm’n v. Akins, 524 U.S. 11, 24, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998); see also Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 449, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989). However, a statutory violation alone does not create a concrete informational injury sufficient to support standing. See Spokeo, 136 S.Ct. at 1549. Rather, a constitutionally cognizable informational injury requires that a person lack access to information to which he is legally entitled and that the denial of that information creates a “real” harm with an adverse effect. Spokeo, 136 S.Ct. at 1548 (internal quotation marks omitted); see also Akins, 524 U.S. at 21, 118 S.Ct. 1777 (“The ‘injury in fact’ that respondents have suffered consists of their inability to obtain information ... that ... [a] statute requires [to be] ma[d]e public” where that information “would help them ... evaluate candidates for public office.”).

To determine whether a party has suffered such a harm, courts Ibok to a variety of sources, including whether injuries are of the type that have “traditionally been regarded as providing a basis for a lawsuit in English or American courts.” Spokeo, 136 S.Ct. at 1549. Dreher does not propose a common law analogue for his alleged FCRA injury, and we find no traditional right of action that is comparable. The lack of a common law analogue is not fatal to his case, see Pub. Citizen, 491 U.S. at 449, 109 S.Ct. 2558 (finding a “sufficiently discrete injury” without finding that a similar right existed at common law), but it also does not help him establish a concrete injury, cf. Vt. Agency of Nat. Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 774, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000) (in concluding the government suffered an injury in a qui tarn suit, looking to the “long tradition of [such] actions in England and the American Colonies” as being constitutionally “amenable to ... the judicial process” (internal quotation marks omitted)).

Spokeo also states, “Congress is well positioned to identify intangible harms that meet minimum Article III requirements.” Spokeo, 136 S.Ct. at 1549. Therefore, “its judgment is ... instructive and important.” Id. Our sister circuit has recently reasoned that a plaintiff suffers a concrete informational injury where he is denied access to information required to be disclosed by statute, and he “suffers, by being denied access to that information, the type of harm Congress sought to prevent by requiring disclosure.” Friends of Animals v. Jewell, 828 F.3d 989, 992 (D.C. Cir. 2016) (emphasis supplied). We find this reasoning persuasive. To be sure, it would be an end-run around the qualifications for constitutional standing if any nebulous frustration resulting from a statutory violation would suffice as an informational injury.

In enacting the FCRA, Congress sought “to ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy.” Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 52, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007). But Dreher has failed to show how the knowledge that .he was corresponding with a CardWorks employee, rather than an Advanta employee, would have made any difference at all in the “fair[ness] or accura[cy]” of his credit report, or that it would have made the credit resolution process more efficient. Id.', see also 15 U.S.C. § 1681(a)(1). He claims there is a value in “knowing who it is you’re dealing with,” and if a company can “hide who [they] are, [they]’re not concerned about consumer goodwill.” Oral Argument at 24:41-24:48, Dreher v. Experian Info. Sols., No. 15-2119 (4th Cir. argued March 21, 2017), available at http://www.ca 4.uscourts.gov/oral-argument/listen-to-oral-arguments. But these arguments are chiefly customer service complaints, as the district court itself recognized. See J.A. 331 n.6 (“[W]hen a consumer called Advanta with a question about her bill, she actually spoke to someone from Cardworks without even knowing the person on the phone was not with Advanta. In practical outcome, it is no different from any consumer calling her bank.”). Thus, the harm Dreher alleges he suffered is not the type of harm Congress sought to prevent when it enacted the FCRA.

2.

Failing to identify either a common law analogue or a harm Congress sought to prevent, Dreher is left with a statutory violation divorced from any real world effect. As Spokeo demonstrated, a statutory violation absent a concrete and adverse effect does not confer standing. In fact, this case is markedly similar to the Spokeo examples. See 136 S.Ct. at 1550. Like the user notice example, Dreher has not shown that dealing with representatives working for CardWorks rather than Advanta slowed down the process of obtaining a more accurate credit report. Writing to the P.O. Box addresses was an accurate way to lodge consumer inquiries about Advanta accounts, and Dreher has not shown that he was prevented in any way from reaching customer service representatives to discuss his report. And like the zip code example, Experian’s listing of Advanta instead of CardWorks had no practical effect on Dreher’s receipt of the information he needed to clear the report of the Advanta account. Moreover, to the extent Dreher claims the delinquent Advanta account “threatened his security clearance,” Appel-lee’s Br. 1, in actuality, the account had no legitimate effect on the background check process. Thus, receiving a creditor’s name rather than a servicer’s name—without hindering the accuracy of the report or efficiency of the credit report resolution process—worked no real world harm on Dreher.

Moreover, the cases on which Dreher relies. are inapposite because both cases involved the deprivation of information that adversely affected the plaintiffs’ conduct. In Public Citizen v. U.S. Department of Justice, the Department of Justice denied non-profit groups Public Citizen and the Washington Legal Foundation names of candidates for federal judicial appointment under consideration by the American Bar Association (“ABA”)’s standing committee on the federal judiciary, as well as access to ABA meetings and records regarding the same. See 491 U.S. at 447-48, 109 S.Ct. 2558. The Supreme Court concluded the non-profits had suffered a concrete injury for standing purposes because providing the groups the information would have allowed them to “participate more effectively in the judicial selection process.” Id. at 449, 109 S.Ct. 2558. Dreher also relies on Federal Election Commission v. Akins, wherein a group of voters sought to challenge the Federal Election Commission’s decision that the American Israeli Public Affairs Committee was not a “political committee” and therefore did not have to disclose its membership, contributions, or expenditures. 524 U.S. at 13-14, 118 S.Ct. 1777. The Supreme Court held that the voters had alleged a concrete injury because the information they sought “would help them ... to evaluate candidates for public office.” Id. at 21, 118 S.Ct. 1777. Thus, the Court focused on the type of concrete harm Congress intended to protect in the Federal Election Campaign Act—deprivation of information about candidates for public office—which is “directly related to voting, the most basic of political rights.” Id. at 24-25, 118 S.Ct. 1777.

Here, however, Dreher has failed to demonstrate how viewing the name “Ad-vanta” rather than “CardWorks” adversely affected his conduct in any way. He was still able to receive a fair and accurate credit report, obtain the information he needed to cure his credit issues, and ultimately resolve those issues. If anything, the record shows that listing the Advanta name may actually assist an alleged identity theft victim like Dreher. A seasoned former associate director of the Federal Trade Commission, Joel Winston, stated:

[I]n cases of identity theft ... the name of the creditor is likely to be more useful than the name of the servicer. While the consumer may not recognize either as a company with which it has done business, the name of the creditor in many cases is likely to be at least generally familiar, making it easier for the consumer .to ascertain whether s/he has an account with that creditor. The name of the servicer, on the other hand, is unlikely to be recognizable at all.

J.A. 362-63. Winston also stated, “In my experience, it is common for CRAs to identify the creditor as the source of the information, rather than the servicer, because this designation is likely to be more useful to consumers.” Id. at 366.

Therefore, we readily hold that Dreher was not adversely affected by the alleged error on his credit report. He suffered no real harm, let alone the harm Congress sought to prevent in enacting the FCRA.

C.

Because Dreher has failed to demonstrate he has suffered a concrete injury sufficient to satisfy Article III standing, the district court’s judgment is vacated, and this class action must be dismissed on jurisdictional grounds. We do not address the district court’s decision on the merits. After all, “[wjithout jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.” Steel Co., 523 U.S. at 94, 118 S.Ct. 1003 (quoting Ex parte McCardle, 7 Wall. 506, 514, 19 L.Ed. 264 (1868)).

IV.

For the foregoing reasons, we vacate the district court’s judgment and remand with instructions to dismiss this case.

VACATED AND REMANDED

      . The parties dispute whether Dreher knew about the card.

      . Citations to the "J.A.” refer to the Joint Appendix filed by the parties in this appeal. A June 21, 2011 credit report also contained a phone number. See J.A. 168. It is unclear whether Dreher attempted to call this number.

      . A tradeline is an account entry on a credit report and, in addition to the name and address of the creditor, typically includes information like the "account type, opening date of account, credit limit, account status, and payment history.” Trans Union Corp. v. Fed. Trade Comm’n, 245 F.3d 809, 812 (D.C. Cir. 2001).

      . Dreher resolved all claims against Card-Works, and it was dismissed as a defendant on November 1, 2012.

      . By this time, Dreher had dropped two of his class claims, leaving only one.

      . The district court entered judgment on Dre-her’s individual claims on November 12, 2015, after Experian made—and Dreher accepted—an offer of judgment of $65,000 pursuant to Federal Rule of Civil Procedure 68. Experian does not challenge any ruling with respect to the individual claims in this appeal.

      . The parties do not dispute Experian's status as a consumer reporting agency. See 15 U.S.C. § 1681a(f).


source: Caselaw Access Project

author: DIANA GRIBBON MOTZ, Circuit Judge:

license: Public Domain

text:
    Ronald BARTON; Neil Knox; Elijah P. Morris; Wayne Morris; John Tabor, on behalf of himself and all other persons similarly situated; United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union AFL-CIO/CLC, Plaintiffs-Appellants, v. CONSTELLIUM ROLLED PRODUCTS-RAVENSWOOD, LLC; Constellium Rolled Products-Ravenswood, LLC Employees Group Benefits Plan, Defendants-Appellees.
    No. 16-1103
    United States Court of Appeals, Fourth Circuit.
    Argued: January 24, 2017
    Decided: May 11, 2017

      ARGUED: Joseph P. Stuligross, UNITED STEEL WORKERS OF AMERICA, Pittsburgh, Pennsylvania, for Appellants. Christopher Alan Weals, MORGAN, LEWIS & BOCKIUS LLP, Washington, D.C., for Appellees. ON BRIEF: Pamina Ewing, McKean Evans, FEINSTEIN DOYLE PAYNE & KRAVEC, LLC, Pittsburgh, Pennsylvania, for Appellants. Charles C. Jackson, Chicago, Illinois, Sean K. McMahan, Abbey M. Glenn, MORGAN, LEWIS & BOCKIUS LLP, Washington, D.C., for Appellees.
    Before MOTZ, DUNCAN, and HARRIS, Circuit Judges.
   Affirmed by published opinion. Judge Motz wrote the opinion, in which Judge Duncan and Judge Harris joined.

ON REHEARING

DIANA GRIBBON MOTZ, Circuit Judge:

A class of retirees and their union filed this action after their former employer unilaterally altered its retiree health benefits program. Because the governing collective bargaining agreement does not provide for vested retiree health benefits, we affirm the district court’s grant of summary judgment to the employer.

I.

A.

Constellium Rolled Products-Ravens-wood, LLC operates an aluminum plant in Ravenswood, West Virginia. The individual plaintiffs have retired from working in that plant. The United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industry & Service Workers International Union AFL-CIO/CLC (“the Union”) represented the retirees during their employment. As far back as 1988, the Union negotiated collective bargaining agreements (“CBAs”) with Constellium (or its predecessors) on the employees’ behalf.

Each individual class member retired during the operation of one of seven CBAs between the Union and one of Constelli-um’s predecessors. These included the 1988 CBA between the Union and Kaiser Aluminum & Chemical Corporation; the 1992 CBA between the Union and Ravens-wood Aluminum Corporation of West Virginia, Inc.; the 1994 CBA between the Union and Ravenswood Aluminum; the 1999 CBA between the Union and Century Aluminum Corporation; the 2002 CBA between the Union and Pechiney Rolled Products; the 2005 CBA between the Union and Alcan Rolled Products-Ravens-wood; and the 2010 CBA between the Union and Alcan. The 2010 CBA expired on July 15, 2012.

Article 15 of each CBA, which appears in substantially the same form across all seven, contained a provision for group health insurance benefits. The 2010 provision reads as follows:

1. The group insurance benefits shall be set forth in booklets entitled Employees’ Group Insurance Program and Retired Employees’ Group Insurance Program, and such booklets are incorporated herein and made a part of the 2005 Labor Agreement by such reference.
2. It is understood that this agreement with respect to insurance benefits is an agreement on the basis of benefits and that the benefits shall become effective on July 15, 2010, except as otherwise provided in the applicable booklet, and further that such benefits shall remain in effect for the term of this 2010 Labor Agreement.

The “booklet[ ]” to which Article 15 refers, entitled “Retired Employees’ Group Insurance Program,” serves as the summary plan description (“SPD”) of the group health insurance benefits program for retirees. The first edition of the SPD was issued in 1985, with subsequent editions issued in 1990, 1992, 1995, and 2005. The 2005 SPD provides that, with limited exceptions, “[t]he benefits described in this summary are effective as of June 1, 2005,” the date of the start of the 2005 CBA, and that these benefits last “for the term of the Labor Agreement.” Substantively identical language appeared in the previous editions of the SPD.

B.

In addition to the various editions of Article 15 of the CBA and the SPD, the Union and Constellium’s predecessors agreed, in another set of documents, which the parties call “Cap Letters,” to further parameters governing retiree health benefits. In November 2002, one month before they signed the 2002 CBA, the Union and Pechiney reached agreement on how they would allocate health care spending for employees who retired on or after January 1, 2003. The parties agreed that Pechiney would annually contribute up to $12,068 for each post-2002 retiree under the age of 65 and $3,912 for those post-2002 retirees age 65 or over. The 2002 Cap Letter further provided that any costs above this cap “shall be allocated evenly to all participants in such group, as an annual individual contribution.” Additionally, the 2002 Cap Letter mandated that the parties negotiate any cap on health benefits as part of subsequent collective bargaining negotiations. Finally, this Cap Letter delayed implementation of the cost-sharing requirement for post-2002 retirees until January 1, 2006, after the 2002 CBA’s expiration date.

On August 2, 2005, roughly two months after the start of the 2005 CBA, the Union and Pechiney signed a second Cap Letter, which adjusted Pechiney’s contribution level for post-2002 retirees. The 2005 Cap Letter took effect on January 1, 2011, after the 2005 CBA’s expiration date. Finally, on July 15, 2010, the same day they signed the 2010 CBA, the Union and Alcan executed a third Cap Letter. This one kept the 2005 Cap Letter’s employer contribution limit, again only for post-2002 retirees. Unlike the previous two Cap Letters, which took effect after the implementation of their concurrently-negotiated CBAs, the 2010 Cap Letter took effect on January 1, 2011, over eighteen months before the expiration of the 2010 CBA.

C.

In July 2012, during negotiations over a new CBA, Constellium proposed amending Article 15 to extend the cap on its contributions to retiree health benefits to employees who retired before January 1, 2003 and to freeze its Medicare Part B premium reimbursement amount for all hourly retirees at $99.90. The Union, asserting that the retiree health benefits had vested, refused to bargain on this issue. Constellium sent the Union a written notice that it planned to make these changes beginning January 1, 2013. When that day came, Constellium did so.

In February 2013, the individuals who retired during one of the above-mentioned CBAs and the Union (collectively “the Retirees”) initiated this litigation against Constellium (and its pension plan). On March 3, 2014, the Retirees filed their First Amended Complaint, which contained both class and individual allegations. The class allegations were on behalf of two subclasses—pre-2003 retirees whom the extension of the contribution cap affected and hourly employees whom the Medicare premium contribution freeze affected—who alleged a violation of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. The individual plaintiffs brought an additional claim for violation of Section 502(a)(1) of the Employee Retirement Income Security Act, 29 U.S.C. § 1132(a)(1)(B) (“ERISA”). All of these claims rested on the contention that the retiree health benefits had vested.

Following discovery, the parties filed cross-motions for summary judgment. The district court granted Constellium’s motion and dismissed the case. Barton v. Constellium Rolled Prods.-Ravenswood, LLC, No. 2:13-cv-03127, 2016 WL 51262 (S.D. W. Ya. Jan. 4, 2016). The Retirees subsequently noted this timely appeal.

We review de novo the district court’s grant of summary judgment. Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc). Summary judgment is proper only if, viewing the evidence in the light most favorable to the non-moving party, there are no genuine disputes of material fact and the moving party demonstrates the right to judgment as a matter of law. Id.

II.

The Retirees argue that the parties intended the Article 15 health benefits to vest, and so continue beyond the duration of the CBA. Accordingly, they contend, Constellium’s unilateral alteration of those benefits breached its obligations under the CBA.

A.

The Supreme Court has recently held courts must “interpret collective-bargaining agreements, including those establishing ERISA plans, according to ordinary principles of contract law, at least when those principles are not inconsistent with federal labor policy.” M&G Polymers USA, LLC v. Tackett, — U.S. -, 135 S.Ct. 926, 938, 190 L.Ed.2d 809 (2015). Thus, in Tackett the Court instructed “[w]here the words of a contract in writing are clear and unambiguous, its meaning is to be ascertained in accordance with its plainly expressed intent.” Id. (quoting 11 R. Lord, Williston on Contracts § 30:6, at 108 (4th ed. 2012)).

Tackett involved review of a Sixth Circuit case that, in accord with prior circuit precedent, held for a class of plaintiff retirees. See 135 S.Ct. at 932. That prior circuit precedent, International Union, United Automobile, Aerospace, & Agricultural Implement Workers of America v. Yard-Man, Inc., 716 F.2d 1476 (6th Cir. 1983), directed courts to apply a presumption that, barring unambiguous evidence to the contrary, parties intended for benefits in a collective bargaining agreement to vest. Id. at 935. In Tackett, the Supreme Court “rejeet[ed] the Yard-Man inferences as inconsistent with ordinary principles of contract law.” Id. at 937; see also id. at 935-37 (explaining Yard-Man’s incompatibility with general contract principles). It explained that Yard-Man clashed with “the traditional principle that ‘contractual obligations will cease, in the ordinary course, upon termination of the bargaining agreement.’” Id. at 937 (quoting Litton Fin. Printing Div., Litton Bus. Sys., Inc. v. NLRB, 501 U.S. 190, 207, 111 S.Ct. 2215, 115 L.Ed.2d 177 (1991)). Indeed, the Supreme Court in Tackett specifically mandated that “when a contract is silent as to the duration of retiree benefits, a court may not infer that the parties intended those benefits to vest for life.” Id.

Thus, we must interpret Article 15 using ordinary contract principles. And in doing so, we must recognize that these principles foreclose holding that the retiree health benefits have vested unless unambiguous ■ evidence indicates that the parties intended that outcome.

B.

Article 15 of the CBA states that the retiree health benefits “shall remain in effect for the term of this ... Labor Agreement.” Article 15 also provides that the parameters of the retiree health benefits programs “shall be set forth in [the] booklet! ] entitled ... Retired Employees’ Group Insurance Program.” That booklet, which serves as the SPD for these benefits, similarly states that these benefits would last “for the term of the Labor Agreement.” It is undisputed that the term of the 2010 CBA, the most recent one relevant, ended in 2012.

The plain language of the CBA and SPD clearly indicates that the retiree health benefits did not vest. First, Article 15 contains explicit durational language stating that the retiree health benefits continue “for the term of’ the governing CBA. Furthermore, the SPD echoes this language, reiterating the benefits continue “for the term of the” CBA.

The contrast between the durational language in the retiree health benefits SPDs and the more expansive language found in the pension benefits SPDs bolsters this conclusion. With respect to pension benefits, the SPDs have generally-provided that “once pension payments commence they are payable monthly for the life of the participant,” and are “not subject to reduction.” The use of this unambiguous language in one section of an agreement indicates that the parties knew how to manifest their intent to vest certain benefits. The absence of such language in another section in the same agreement thus evidences an absence of such intent. See Trumball Invs. Ltd. I v. Wachovia Bank, N.A., 436 F.3d 443, 447-48 (4th Cir. 2006). The contrast between the retiree health benefits and pension plan SPD provisions demonstrates this point. See Dewhurst v. Century Aluminum Co., 649 F.3d 287, 289, 291-93 (4th Cir. 2011).

The Retirees cannot overcome the clear language of Article 15 of the CBA and the SPD. Given this language, the Retirees cannot demonstrate that their health benefits had vested.

III.

The Retirees resist this contention, asserting that it improperly reads a single phrase in isolation. See Quesenberry v. Volvo Trucks N. Am. Retiree Healthcare Benefit Plan, 651 F.3d 437, 440 (4th Cir. 2011). They assert that the Cap Letters and other provisions of the CBA evince an intent to vest the retiree health benefits. See id. (rejecting an employer’s argument that “one phrase in this particular collective bargaining agreement conclusively resolves” whether the benefits vested because other parts of CBA were incompatible with this conclusion).

A.

1.

We begin with the Cap Letters. The 2002 and 2005 Cap Letters set limits on employer contributions to commence after the expiration of the CBA under concurrent negotiation. The Retirees argue that this structure only makes sense if, notwithstanding the language in Article 15 of the CBA and the SPD, the parties intended for the retiree health benefits to continue beyond the termination of the CBA.

The Cap Letters themselves undermine the notion that the retiree health benefits vested, for the Cap Letters indicate that the parties can change the benefits. For example, the 2005 Cap Letter, by significantly reducing the employer contribution on behalf of post-2002 retirees, effectively reduced the benefits for individuals who had already retired between 2003 and 2005 from what the 2002 Cap Letter had provided them. And the Cap Letters’ instruction that they are “a mandatory subject of collective bargaining in any subsequent contract negotiations” underscores that the Retirees’ health benefits are fluid and not set in stone.

Additionally, the 2010 Cap Letter memorializes the parties’ agreement to start capping retiree benefits before the expiration of the CBA that the parties were then negotiating. The Retirees would have us infer that the post-termination start dates of the 2002 and 2005 Cap Letters show an intention to continue the retiree health benefits after the termination of the CBA. But despite no substantive change to Article 15 in the 2002, 2005, and 2010 CBAs, the parties did not give the 2010 Cap Letter a start date after the termination of the 2010 CBA. This strongly suggests that the parties did not seek to manifest through the Cap Letters any latent intent to vest the retiree health benefits.

Given that Article 15 and the SPD maintain nearly identical durational language across all seven CBAs, we see no reason to treat employees who retired between 2003 and 2010 differently from the rest based on the Cap Letters. The Cap Letters both fall far short of Tackett’s requirement for a clear signal that parties intend for benefits to vest and fail to negate the unambiguous durational language in Article 15 and the SPD cutting against vesting. Accordingly, we cannot draw the inference the Retirees suggest.

2.

To buttress their contention about the Cap Letters, the Retirees rely on Quesenberry and Keffer v. H.K Porter Co., 872 F.2d 60 (4th Cir. 1989). Both cases predate the Supreme Court’s 2015 directive in Tackett that “when a contract is silent as to the duration of retiree benefits, a court may not infer that the parties intended those benefits to vest for life.” 135 S.Ct. at 937. Moreover, the contracts in both cases differ markedly from the one at issue here.

In Keffer, we held that the retirement benefits in question vested, thus outlasting the CBA’s expiration, because the CBA provided that retirees’ benefits would terminate when they became eligible for Medicare. 872 F.2d at 62-63. We concluded that this language illustrated the parties’ understanding that the retirees’ benefits would survive the CBA. Id. at 64. As we recognized in Dewhurst, “the collective bargaining agreement in Keffer differed materially from” Article 15 because “[i]n Keffer, retiree health benefits were explicitly linked not to termination of the agreement, but to a post-termination event, namely the date of the retiree’s eligibility for Medicare.” 649 F.3d at 292.

Quesenberry offers a stronger, although ultimately unpersuasive, argument for the-Retirees. The CBA at issue there established a trust fund to cover cost overruns in retiree health benefits and obligated the employer to make a contribution to that trust fund on the day the CBA terminated. 651 F.3d at 438-39. That provision also set forth a mechanism to address cost overruns beyond what the trust fund could support; it allowed the employer to charge retirees for excess costs, but only after the parties negotiated over steps to reduce overall health costs. Id. at 439. Relying on the cost overrun provision, we held that the employer breached the CBA by terminating health benefits-. Id. at 440-42. We explained that the cost overrun provision “makes no sense unless it operates as a limitation on [the employer’s] right to modify benefits beyond the term of the agreement.” Id. at 440. Because “the negotiated mechanism ... is meaningless if it does not extend past the expiration of the CBA,” we refused to read the coverage provision’s durational language as relieving the employer of its duty to comply with the cost overrun provision. Id. at 441.

In contrast to Keffer, and unlike in Quesenberry, here we have very strong evidence that the retiree health benefits continue only as long as the CBA. First, the plain language of the CBA and SPD so provides. Second, the disjunction between the pension plan and the retired employees’ health benefits SPD provisions strongly indicates that the parties did not intend the latter to vest. Additionally, the Cap Letters do not have the same infeasibility problem as the trust fund in Quesenberry. The 2010 Cap Letter superseded the 2005 Cap Letter before the 2005 contribution provision came into effect and set the new implementation date to before the 2010 CBA expired. The most reasonable inference from the various effective dates is that the post-termination start dates of the 2002 and 2005 Cap Letters were precautionary cost-containment measures in the event the parties had not agreed to a new CBA before the expiration of the prior one, but wanted to avoid a sudden cancellation of the retirees’ health benefits. The flexibility to adjust the date and level of the cap and the stop-gap role the Cap Letters potentially fill contrast strongly with Quesenberry, where adherence to the durational language would effectively nullify a meticulous, detailed, and prominent part of that CBA.

If the CBA did not have the durational language of Article 15, the Cap Letters would certainly not eliminate an inference that the parties intended the benefits to continue past that CBA. But given Article 15’s actual robust durational language, the other textual provisions which cut against this inference, and Tackett’s call for clarity in providing for vesting, the Cap Letters do not show that the parties intended the benefits to vest.

B.

Nor do the Retirees’ arguments related to other provisions persuade us. The Retirees specifically point to language in the SPD regarding coverage for retirees’ dependents and pensioned surviving spouses and the reimbursement of Medicare Part B premiums. These provisions, they say, indicate that the retiree health benefits vested.

We start with the provision for dependent coverage. The CBA offered such coverage, and all SPDs provided, in nearly identical language, that such coverage “shall canéel on the date such person is no longer an eligible dependent as defined or upon your death, whichever comes first.” The Retirees argue that the decision to link the termination of the dependent coverage benefits to a retiree’s death evinces an intent for the retiree health benefits to vest.

Given the unequivocal durational language, we cannot agree. One can reconcile the dependent coverage provision with the durational language by reading the former to terminate benefits for á retiree’s dependents at the time of the retiree’s death, while the benefits for dependents of surviving retirees terminate at the end of the CBA. This reading seems the likelier manifestation of the parties’ intent, both because it harmonizes the purportedly conflicting provisions and because the dependent coverage sections of the SPD contain nothing explicit about vesting.

The pensioned surviving spouses SPD provision similarly offers the Retirees little help. Each edition of the SPD made clear that the pensioned surviving spouse of a retiree is eligible to receive the benefits that would have gone to the retiree had he lived. This language simply defines a category of people eligible to receive benefits; it says nothing about the duration for which those benefits will last. This language cannot surmount the durational language of Article 15 and the SPD, especially when compared to the ironclad evidence of vesting that the language for the pension plan provides.

Finally, we also find unpersuasive the Retirees’ efforts to invoke Constellium’s agreement to reimburse Medicare Part B premiums as evidence that the parties intended the benefits to vest. The SPD provides that when a retiree or pensioned surviving spouse age 65 or older “enrolls in Medicare Part B, [Constellium] will reimburse such [individual] for the actual monthly cost for Medicare coverage ... for the duration of the Labor Agreement.” The emphasized clause, combined with language in the following paragraph that this benefit lasts only while the individual is on Medicare Part-B and “is entitled to benefits under this Plan,” clearly shows a temporal limitation on this benefit, defeating the Retirees’ argument.

IV.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

      . The 2005 SPD adds an additional sentence to its description of the benefits, stating that "[n]o benefit described in this booklet is vested.” The Retirees contend that Constellium unilaterally promulgated this language, rendering it irrelevant in determining the mutual intent of the parties. Because we need not rely on this sentence in order to affirm, we do not address this argument.

      . The Retirees also argue that extrinsic evidence, including past conduct by Constellium and its predecessors, demonstrates that the parties intended the benefits to vest. Because, as explained above, we find that the language of the CBA and SPD unambiguously forecloses this interpretation, we do not address the extrinsic evidence. See Williston on Contracts § 55:23 (noting a "general agreement among most courts that parol evidence of the parties' bargaining history may be used to explain or supplement the terms of the collective bargaining agreement, but may not be admitted to prove an agreement at variance with the normal or customary meaning of the words chosen by the parties to express their agreement”).

      . The Retirees also argue that in 1979, the parties replaced a six-month limitation on dependent coverage with a promise of lifetime benefits, and that this supports their interpretation of the CBA. Because they never raised this argument below, they have waived it. See Pornomo v. United States, 814 F.3d 681, 686 (4th Cir. 2016).


author: CARL E. STEWART, Chief Judge:

text:
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant v. BDO USA, L.L.P., Defendant-Appellee
    No. 16-20314
    United States Court of Appeals, Fifth Circuit.
    FILED May 4, 2017
    REVISED May 8, 2017

      Susan L. Starr, Esq., U.S. Equal Employment Opportunity Commission, Office of General Counsel/Appellate Services, Washington, DC, Connie Wilhite Gatlin, U.S. Equal Employment Opportunity Commission, Houston District Office, Houston, TX, for Plaintiff-Appellant.
    Rachel Cowen, Counsel, DLA Piper, L.L.P. (US), Chicago, IL, Ileana Margarita Blanco, Esq., DLA Piper, L.L.P. (US), Houston, TX, for Defendant-Appellee.
    Before STEWART, Chief Judge, and KING and DENNIS, Circuit Judges.
   CARL E. STEWART, Chief Judge:

During the course of an employment discrimination investigation, the Equal Employment Opportunity Commission (“EEOC”) brought a subpoena enforcement action against BDO USA, L.L.P. (“BDO”) in federal district court. The EEOC sought production of information relating to the investigation and asserted that BDO’s privilege log failed to establish that the attorney-client privilege protected the company’s withheld documents. The district court held that the log was sufficient and also granted BDO’s request for a protective order. For the reasons that follow, we VACATE and REMAND.

I. BACKGROUND

BDO, a financial and consulting services firm, hired Hang Bower as a Human Resources (“HR”) Manager in 2007. Bower, an Asian-American female, was eventually promoted to Chief Human Resources Officer, the company’s highest-ranking HR position. While at BDO, Bower was responsible for investigating discrimination complaints and communicated with both in-house and outside counsel. Bower resigned from her employment with BDO on January 15, 2014.

On July 9, 2014, Bower filed a charge with the EEOC, alleging that BDO violated Title VII and the Equal Pay Act by subjecting her and other female employees to gender discrimination, retaliation, and a hostile work environment. Bower claimed, inter alia, that: (1) as a result of her efforts to assure compliance with company policies, BDO removed her from leadership meetings, decreased her job responsibilities, reprimanded her, and ordered her to stop investigating certain employees; (2) in retaliation for her “expressed determination” to investigate male managers and a male partner, she was stripped of her investigatory authority and removed from the Chief Compliance Officer position; (3) top corporate management shielded a male manager accused of discrimination and blocked an appropriate investigation; (4) BDO fired or constructively discharged female employees who complained about mistreatment; and (5) BDO discriminated against non-white employees. On August 18, 2014, BDO filed a position statement in response to Bower’s charge, providing additional information, denying the allegations, and arguing that the charge should be dismissed for lack of probable cause.

Between October 2014 and June 2015, the EEOC issued three Requests for Information (“RFIs”) to BDO, seeking details related to the individual and class-wide claims in Bower’s charge. In December 2014, BDO filed another position statement that outlined BDO’s investigation policy and rejected Bower’s allegations that the company blocked her attempts to investigate discrimination claims. BDO, however, objected to providing other information it believed was “far beyond the scope of Bower’s individual charge.” BDO also alleged that the EEOC was eliciting— and Bower was revealing—attorney-client privileged communications between Bower and BDO’s in-house and outside counsel. In June 2015, BDO stated that it could not provide any additional information until the matter was “transferred to a new investigator who ha[d] not been tainted by reviewing, or eliciting, privileged information.”

On July 14, 2015, the EEOC issued a subpoena to BDO, seeking documents and information relating to the investigation. In response, BDO provided some, but not all, of the requested information and created a privilege log cataloging withheld documents as to which it asserted attorney-client privilege. The 278 entries in the log’s final version referenced “confidential” emails, memoranda, and other documents, and included communications between (1) Bower and in-house and outside counsel, (2) other BDO employees and in-house and outside counsel, (3) non-attorney employees with counsel courtesy copied, and (4) non-attorney employees regarding legal advice (but not involving any attorneys).

On December 10, 2015, the EEOC filed a subpoena enforcement action in federal district court. According to the EEOC, BDO’s refusal to comply with the subpoena had “delayed and hampered the investigation,” and the privilege log BDO submitted contained various deficiencies: certain entries “lack[ed] sufficient detail and specificity,” were “simply incomplete,” and/or appeared to reference communications that were not exchanged with or copied to an attorney, or that appeared only to courtesy copy counsel. On February 4, 2016, BDO filed its response, which included a request for a protective order enjoining the EEOC from questioning Bower and BDO employees regarding their conversations with BDO’s counsel, and requiring the EEOC to return or destroy evidence of witness interviews and other documents that memorialized the privileged conversations.

On February 9, 2016, the magistrate judge presided over the show cause hearing. She rejected the EEOC’s contention that communications BDO claimed were privileged were not protected and stated that the EEOC had not “made a sufficient showing” that the privilege log reflected “an improperly claimed privilege.” Ultimately, the magistrate judge denied the EEOC’s request to enforce the subpoena and for an in camera review of the documents, explaining: “I am not going to look through 278 documents. I decline to do that. The privilege log seems adequate.” The magistrate judge also granted BDO the protective relief it requested, stating that it was “not Ms. Bower’s job to decide what’s attorney-client [privilege]” and that “anything that comes out of [BDO’s] lawyer’s mouth is legal advice.”

The EEOC filed objections to the magistrate judge’s order in the district court, arguing that the decision was based “on incorrect interpretations of the facts and the applicable law.” The EEOC appended to its objections Bower’s declaration, which stated, inter alia, that many of the communications she exchanged with BDO’s counsel were for the purpose of seeking or imparting business, not legal, advice regarding officer investigations and how to carry out her HR duties. Similarly, Bower maintained that emails exchanged between her and other non-attorneys pertaining to these investigations were made for the primary purpose of conveying business directives or factual information. Bower further claimed that, in order to protect communications from disclosure in future legal proceedings, BDO required her to forward to or courtesy copy in-house counsel on virtually all communications pertaining to employee investigations and to include in HR-related emails a false designation that the communication was prepared “at the request of legal counsel.”

BDO filed an opposition to the EEOC’s objections, arguing that they should be overruled and that the district court did not have discretion to consider Bower’s declaration. On March 21, 2016, the district court summarily affirmed the magistrate judge’s order. The EEOC timely appealed, seeking that (1) the question of whether the attorney-client privilege is available to the withheld documents on BDO’s privilege log be remanded to the district court and (2) the protective order be reversed and remanded.

II. DISCUSSION

A. Privilege Log

We begin with the question of whether the district court erred when it accepted BDO’s claim of attorney-client privilege based on the privilege log.

1. Legal Standards

“The application of the attorney-client privilege is a ‘question of fact, to be determined in the light of the purpose of the privilege and guided by judicial precedents.’ ” In re Auclair, 961 F.2d 65, 68 (5th Cir. 1992) (quoting Hodges, Grant & Kauf-mann v. United States, 768 F.2d 719, 721 (5th Cir. 1985)); see also Upjohn Co. v. United States, 449 U.S. 383, 396, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). “The clearly erroneous standard of review applies to the district court’s factual findings.” King v. Univ. Healthcare Sys., L.C., 645 F.3d 713, 721 (5th Cir. 2011) (quoting United States v. Neal, 27 F.3d 1035, 1048 (5th Cir. 1994)). We review de novo the district court’s application of the controlling legal standards. See id.; In re Avantel, S.A., 343 F.3d 311, 318 (5th Cir. 2003).

“The attorney-client privilege limits the normally broad disclosure requirements of Federal Rule of Civil Procedure 26.... ” SmithKline Beecham Corp. v. Apotex Corp., 282 F.R.D. 467, 472 (E.D. Pa. 2005). For a communication to be protected under the privilege, the proponent “must prove: (1) that he made a confidential communication; (2) to a lawyer or his subordinate; (3) for the primary purpose of securing either a legal opinion or legal services, or assistance in some legal proceeding.” United States v. Robinson, 121 F.3d 971, 974 (5th Cir. 1997). Determining the applicability of the privilege is a “highly fact-specific” inquiry, and the party asserting the privilege bears the burden of proof. Stoffels v. SBC Commc’ns, Inc., 263 F.R.D. 406, 411 (W.D. Tex. 2009) (citing United States v. Kelly, 569 F.2d 928, 938 (5th Cir. 1978)); see also Hodges, 768 F.2d at 721, “Once the privilege has been established, the burden shifts to the other party to prove any applicable exceptions.” Perkins v. Gregg Cty., 891 F.Supp. 361, 363 (E.D. Tex. 1995) (citation omitted). Ambiguities as to whether the elements of a privilege claim have been met are construed against the proponent. See Scholtisek v. Eldre Corp., 441 F.Supp.2d 459, 462-63 (W.D.N.Y. 2006) (listing cases).

Because the attorney-client privilege “has the effect of withholding relevant information from the fact-finder,” it is interpreted narrowly and “applies only where necessary to achieve its purpose.” Robinson, 121 F.3d at 974 (quoting Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976)). Courts have indicated that the privilege should be granted cautiously where administrative investigations are involved. See F.T.C. v. TRW, Inc., 628 F.2d 207, 211 (D.C. Cir. 1980) (citing Okla. Press Publ. Co. v. Walling, 327 U.S. 186, 213, 66 S.Ct. 494, 90 L.Ed. 614 (1946)).

2. Analysis

The EEOC argues that the district court erred when it concluded that all communications between a corporation’s employees and its counsel are per se privileged and inverted the burden of proof, requiring that the EEOC prove that BDO improperly asserted the attorney-client privilege' as to its withheld documents. See Hodges, 768 F.2d at 721. Thus, central to our determination of whether the district ■court erred is the question of whether BDO’s privilege log sufficed to establish a prima facie showing of attorney-client privilege. We hold that it did not. Given the factual background of this case, the HR context in which it takes place, and the nature of Bower’s allegations, the privilege log in its current form is not sufficient to serve its purpose. See In re Auclair, 961 F.2d at 68; Stoffels, 263 F.R.D. at 411. Specifically, the log possesses three types of deficiencies that prevent the court from determining the applicability of the privilege: (a) entries that are vague and/or incomplete, (b) entries that fail to distinguish between legal advice and business advice, and (c) entries that fail to establish that the communications were made in confidence and that confidentiality was not breached. We address each of these categories in turn.

a. Vague or Incomplete Entries

Although Rule 26 “does not attempt to define for each case what information must be provided,” 1993 Advisory Comm. Notes to Fed. R. Civ. P. 26 ¶ 33, a privilege log’s description of each document and its contents must provide sufficient information to permit courts and other parties to “test[] the merits of’ the privilege claim, United States v. El Paso Co., 682 F.2d 530, 541 (5th Cir. 1982). “Determining whether a particular communication is subject to a privilege should not be a guessing game for the [c]ourt.” Freeport-McMoran Sulphur, LLC v. Mike Mullen Energy Equip. Res., Inc., No. OS-1496, 2004 WL 1299042, at *9 (E.D. La. June 4, 2004). Blanket claims of privilege, generalized descriptions of a document, and conclusory statements that a document is privileged are not sufficient to prove a privilege claim. See El Paso, 682 F.2d at 539; Nutmeg Ins. Co. v. Atwell, Vogel & Sterling, 120 F.R.D. 504, 510 (W.D. La. 1988). Rather, the privilege’s proponent “must provide the court with enough information to enable the court to determine privilege, and ... show by affidavit that precise facts exist to support the claim of privilege.” Nutmeg Ins., 120 F.R.D. at 510; see also von Bulow v. von Bulow, 811 F.2d 136, 145-46 (2d Cir. 1987) (finding that the proponent must establish the privilege’s existence “through competent evidence,” not “mere conclusory or ipse dixit assertions”). “The law is well-settled that, if a party fails to make the required showing, by not producing a privilege log or by providing an inadequate one, the court may deem the privilege waived.” In re Univ. Serv. Fund Tel. Billing Pracs. Litig., 232 F.R.D. 669, 671 (D. Kan. 2005).

We agree with the EEOC that many of BDO’s log entries lack sufficient detail to permit a determination as to whether the entire document or portions thereof are protected from disclosure. See El Paso, 682 F.2d at 541. For example, numerous log entries fail to identify a sender, recipient, date, or provide a substantive description of the subject matter; state only that “legal advice” was sought; and/or do not indicate whether the communications were made, and maintained, in confidence. Some entries have only vague descriptions such as “discrimination claim,” “internal investigation,” or “work environment claim.”

Emails involving counsel are also problematic, as the log’s descriptions do not' indicate whether a particular entry consists of one email or a string of emails—a distinction that may be dispositive as to whether the privilege applies. See In re Univ. Serv. Fund, 232 F.R.D. at 673 (holding that “many, if not most, e-mail strands present unique issues”: some individuals who receive or are copied on the e-mails within a strand “may receive only a portion of the strand while others may receive the entire strand”; an e-mail within a strand “may be sent or copied to an individual or group of individuals who are not part of the attorney-client relationship, thus wáiving the privilege”; and one e-mail within a strand “may contain entirely factual and thus non-privileged information, while another email within the same strand may quite clearly seek or render legal advice”); see also Stafford Trading, Inc. v. Lovely, No. 05-C-4868, 2007 WL 611252, at *8 (N.D. Ill. Feb. 22, 2007) (treating an email that forwarded another email as two separate communications and holding that privilege was waived for both if either one was sent to an unidentified recipient).

BDO contends that the position statements it submitted to the EEOC, along with private conversations between the parties, provided the necessary factual underpinnings for its privilege log. This argument is unpersuasive. As the EEOC notes, position statements are not “ ‘facts’ to which an affiant competently testifies” but rather “a compilation of legal theories and factual characterizations” made by an attorney. See von Bulow, 811 F.2d at 145-46; Nutmeg Ins., 120 F.R.D. at 510. Additionally, BDO has not presented affidavits or other evidence that would allow the court to assess whether attorney-client privilege applies to each entry on the log. See Bowne of N.Y. City, Inc. v. AmBase Corp., 150 F.R.D. 465, 474 (S.D.N.Y. 1993) (stating that a privilege log typically provides sufficient detail to determine “whether the document is at least potentially protected from disclosure” and “[o]ther required information” is “then typically supplied by affidavit or deposition testimony”); see also SmithKline Beecham, 232 F.R.D. at 478 (finding privilege log descriptions sufficient where they were supported by counsel’s affidavit stating that the communications were made for the purpose of securing or providing legal services and/or legal advice). Even assuming that BDO’s position statements are admissible evidence, they do not provide enough information for the court to determine whether specific items on the log are actually privileged. The magistrate judge’s ruling to the contrary sheds no additional light on why the privilege log communications are per se privileged. We therefore hold that at least some log entries are too vague and/or incomplete to adequately “test[] the merits of [BDO’s privilege] claim.” See El Paso, 682 F.2d at 541.

b. Distinction Between Legal and Business Advice

“[A] confidential communication between client and counsel is privileged only if it is generated for the purpose of obtaining or providing legal assistance.... ” In re Cty. of Erie, 473 F.3d 413, 419 (2d Cir. 2007). Legal advice, as contrasted with business advice, “involves the interpretation and application of legal principles to guide future conduct or to assess past conduct.” Id. Courts have held that “[wjhere business and legal advice are intertwined, the legal advice must predominate for the communication to be protected.” Neuder v. Battelle Pac. Nw. Nat’l Lab., 194 F.R.D. 289, 292 (D.D.C. 2000); see also Great Plains Mut. Ins. Co. v. Mut. Reinsurance Bureau, 150 F.R.D. 193, 197 (D. Kan. 1993).

There is no presumption that a company’s communications with counsel are privileged. See TVT Records v. Island Def Jam Music Grp., 214 F.R.D. 143, 148 (S.D.N.Y. 2003). “[C]ommunications by a corporation with its attorney, who at the time is acting solely in his capacity as a business advisor, [are not] privileged,” Great Plains, 150 F.R.D. at 197, nor are documents sent from one corporate officer to another merely because a copy is also sent to counsel, Freeport-McMoran, 2004 WL 1299042, at *25. For these reasons, courts have stated that simply describing a lawyer’s advice as “legal,” without more, is conclusory and insufficient to carry out the proponent’s burden of establishing attorney-client privilege. See United States v. Chen, 99 F.3d 1495, 1502 (9th Cir. 1996) (“Calling the lawyer’s advice ‘legal’ or ‘business’ advice does not help in reaching a conclusion; it is the conclusion.”); Coltec Indus. v. Am. Motorists Ins. Co., 197 F.R.D. 368, 373 (N.D. Ill. 2000) (“[Describing a document as ‘legal advice’ ... is not the same as establishing that the documents are immune from discovery.”).

Here, BDO’s privilege log does not provide sufficient detail to meet its burden of allowing opposing counsel or the trial court to determine whether entries merely described as “legal advice,” or that included or courtesy copied attorneys, actually contained privileged legal advice. Cf. Scott v. Chipotle Mexican Grill, Inc., 94 F.Supp.3d 585, 600-01 (S.D.N.Y. 2015) (finding sufficiently detailed a privilege log entry that had been revised from “[d]iscussion of legal advice concerning Chipotle’s apprentice position” to “[discussion of legal advice among corporate employees responsible for receipt and implementation of advice re: Classification of Chipotle’s Apprentice Position, as well as emails conveying advice and attachment identified in Privilege Log Entry No. 1”). Furthermore, not only does the log include conclusory descriptions of “legal advice,” it does so in the context of communications with in-house counsel—an area courts have acknowledged presents unique challenges when it comes to establishing attorney-client privilege. See Koumoulis v. Indep. Fin. Mktg. Grp., Inc., 295 F.R.D. 28, 38 (E.D.N.Y. 2013); Stoffels, 263 F.R.D. at 411; In re Vioxx Prods. Liab. Litig., 501 F.Supp.2d 789, 797 (E.D. La. 2007). These challenges are further compounded where HR personnel, such as Bower, are involved. See Koumoulis, 295 F.R.D. at 45.

The privilege log’s lack of description, coupled with Bower’s sworn declaration that many of the communications described as “legal advice” were not made for the purpose of seeking and imparting legal advice, compels the conclusion that the log entries warranted closer scrutiny than the trial court provided. The district court therefore erred when it determined, on the showing made, that these entries sufficed to prove BDO’s prima facie case of privilege.

c. Confidentiality

“It is vital to a claim of [attorney-client] privilege that the communication have been made and maintained in confidence.” Robinson, 121 F.3d at 976 (quoting United States v. Pipkins, 528 F.2d 559, 563 (5th Cir. 1976)). The party invoking the privilege “must have a reasonable expectation of confidentiality, either that the information disclosed is intrinsically confidential, or by showing that he had a subjective intent of confidentiality.” Id. (citing Pipkins, 528 F.2d at 563). “[Disclosure of any significant portion of a confidential communication waives the privilege as to the whole.” El Paso, 682 F.2d at 538 (quoting United States v. Davis, 636 F.2d 1028, 1043 n.18 (5th Cir. 1981)).

BDO’s privilege log is too vague to enable a determination of “which BDO officials were properly within the sphere of confidentiality or whether dissemination to some employees broke the confidentiality, even if confidentiality initially existed.” At minimum, the log leaves open questions about (1) whether emails courtesy copied to a third party remained privileged, see Morgan v. N.Y. State Dep’t of Env’t Conservation (In re Morgan), 9 A.D.3d 586, 588, 779 N.Y.S.2d 643 (2004) (stating that communications made with the expectation of confidence lose privilege when “carbon copied to a third party”), (2) whether matters communicated to attorneys were done so with the intention of remaining privileged, see United States v. Bump, 605 F.2d 548, 551 (10th Cir. 1979) (stating that “[w]hen a matter is communicated to the lawyer with the intention or understanding it is to be repeated to another, the content of the statement is not within the privilege”), and (3) whether non-attorney individuals to whom communications were sent were within the sphere of confidence, see Upjohn, 449 U.S. at 394, 101 S.Ct. 677 (stating that the court must look at the individuals’ specific duties to determine if the proponent has demonstrated that they are within the scope of the matters communicated and whether the evidence proves that each of those individuals is “sufficiently aware” that the communication is for the purpose of seeking or obtaining legal advice). In light of the foregoing, it is clear that BDO’s log does not meet the controlling legal standard of enabling a determination of what is privileged and what is not.

3. Conclusion

For these reasons, we hold that BDO did not prove its prima facie case of attorney-client privilege as to all of the log entries. It is well-established that the privilege is the exception to Rule 26’s broad disclosure requirements for relevant information and that it must therefore be applied narrowly and with particularity. See Robinson, 121 F.3d at 974 (quoting Fisher, 425 U.S. at 403, 96 S.Ct. 1569); El Paso, 682 F.2d at 541. Because the privilege log lacks sufficient detail to ascertain whether the exception applies in this case, the magistrate judge erred when she placed the burden on the EEOC to show that BDO’s withheld communications were not privileged. Accordingly, we vacate the district court’s judgment and remand for a determination applying the correct legal standards.

Although we leave to the district court’s discretion how to proceed on remand, we note that in camera review will likely be necessary given the facts and circumstances of this case. See Edna Selan Epstein, The Attorney-Client Privilege and the Work-Product Doctrine 1216 (5th ed. 2007) (explaining that because “[p]rivilege logs often leave much to be desired in terms of completeness,.... the result is that cases where in camera reviews are conducted ... have now become legion.”); Charles Alan Wright <& Kenneth W. Graham, Jr., Federal Practice & Procedure § 5507 p. 573 (1986) (stating that courts widely use in camera inspections of privileged information to “determin[e] the preliminary facts of the privilege and its exceptions”).

B. Protective Order

We turn next to the question of whether the district court applied the correct legal standard when it granted BDO’s request for a protective order.

1. Legal Standard

“[T]his court reviews discovery orders for abuse of discretion....” Cross-white v. Lexington Ins. Co., 321 Fed.Appx. 365, 367 (5th Cir. 2009); see also Sanders v. Shell Oil Co., 678 F.2d 614, 618 (5th Cir. 1982) (reviewing protective order under abuse of discretion standard); McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990) (analyzing the district court’s adoption of the magistrate’s judge’s denial of a protective order for abuse of discretion). However, whether the district court used the correct legal standard in determining whether to issue a protective order is reviewed de novo. See In re Avantel, 343 F.3d at 318 (a court “reviewfs] the application of the controlling law de novo” in an attorney-client privilege case).

A “court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). The movant bears the burden of showing that a protective order is necessary, “which contemplates a particular and specific demonstration of fact as distinguished from stereotyped and conclu-sory statements.” In re Terra Int’l, 134 F.3d 302, 306 (5th Cir. 1998) (quoting United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978)). “A trial court enjoys wide discretion in determining the scope and effect of discovery,” and it is therefore “unusual to find an abuse of discretion in discovery matters.” Sanders, 678 F.2d at 618.

2. Analysis

After considering the parties’ arguments, t}ie magistrate judge concluded that the EEOC had communicated with witnesses and obtained information about their discussions with BDO attorneys. Based on these findings, she ordered the EEOC to: (1) refrain from communicating with Bower or other BDO employees about conversations with BDO’s counsel; (2) disclose employees’ names, dates of disclosure, and the substance of their conversations with BDO’s counsel; (3) produce notes of each of these conversations, redacting the EEOC’s work product; (4) return to BDO any documents containing privileged communications; and (5) destroy any notes or documents that were created as a result of reviewing the documents. The EEOC argues that the magistrate judge’s decision to grant the protective order was grounded in the same legal error as the order denying the EEOC’s application for subpoena enforcement—an “overly broad” legal standard that “wrongly swe[pt] under the umbrella of non-disclosure all communications involving an attorney.”

We agree that the trial court appears to have applied an incorrect legal standard. During the show cause hearing, the magistrate judge on several occasions articulated an overly broad definition of attorney-client privilege. For example, during a colloquy with the EEOC regarding the protective order, the magistrate judge stated, “Frankly, anything that comes out of that lawyer’s mouth is legal advice,” explained that her position was that “anything that’s communicated from or to [cjounsel is privileged and [Bower] cannot discuss that in any manner,” and said to counsel, “I’m telling you that if it’s communications from or to an attorney, it’s privileged.” The magistrate judge also approved BDO’s contention that “the default position should be that if the conversation is with an attorney, a lawyer who has an ethical responsibility, should not invade that privilege” and rejected the EEOC’s assertion that “it’s not legal advice when [Bower is] being told to do things that are not ethical, that are not within the bounds of her position.” These statements support the EEOC’s claim that the magistrate judge granted and determined the scope of the protective order based on an erroneous interpretation of the law.

We do not, however, hold that a protective order is unwarranted, and we leave the decision whether to grant such an order to the trial court. Because the magistrate judge’s incorrect application of the legal standard may have affected both her analysis of the allegedly disclosed communications and the breadth of the protections she imposed in her order, we remand so that BDO’s request for protection may be considered under the proper legal standard for determining privilege.

III. CONCLUSION

For the foregoing reasons, we VACATE the district court’s judgment and REMAND for a determination consistent with this opinion.

      . We are aware of the U.S. Supreme Court’s recent decision in McLane Co. v. EEOC, - U.S. -, 137 S.Ct. 1159, 197 L.Ed.2d 500 (2017). That case, while informative, has no bearing on the ultimate disposition of this case.

      . Although the magistrate judge did not explicitly address the burden of proof issue, she did, for example, state to the EEOC: "You haven’t made a sufficient showing that that’s an improperly claimed privilege when Counsel is ... copied on a lot of these—on all these documents."

      . Rule 26 provides that a party claiming the privilege shall describe the nature of withheld documents and communications "in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege.” Fed. R. Civ. P. 26(b)(5)(A)(ii).

      . Because Rule 26 does not create a requirement as to what information must be included in a privilege log and the adequacy of a privilege log is determined on a case-by-case basis, there is some variation as to the level of detail courts have found to be sufficient. See e.g., Horton v. United States, 204 F.R.D. 670, 673 (D. Colo. 2002) (privilege log must "de-scriben in detail the documents or information claimed to be privileged and the precise reasons the materials are subject to the privilege asserted”); cf. Sid Mike 99, L.L.C. v. Sun-trust Bank, No. 2:07-CV-02453, 2009 WL 3255209, at *6 (W.D. Tenn. Oct. 6, 2009) (privilege log that identified date, time, type, subject, author, addressee(s), and other recipients) for each document was adequate because it enabled the opposing party to sufficiently assess the proponent’s attorney-client privilege claim).

      . BDO asserts that its log was sufficient because it is similar to the privilege log at issue in King v. University Healthcare System. See 645 F.3d at 721 (expressing approval for a log that "list[ed] the authors and recipients of ... e-mails, a brief description of each withheld communication, the amount of each document withheld, and the type of privilege asserted”). However, King did not hold that a similar privilege log would be sufficient in all cases, and such a holding would be inconsistent with the fact-specific inquiry Rule 26 requires. Further, King is distinguishable in key ways: it did not involve an HR employee or in-house counsel; it did not occur in the context of an administrative investigation; it was a proceeding on the merits (where the district court likely had an evidentiary context in which to consider the privilege log); and King “offered only speculation that the emails [we]re not covered by privilege because they were made for a purpose other than obtaining legal advice,” in contrast to the specific allegations Bower provides in her sworn declaration. See id.

      . BDO argues that the district court did not have discretion to consider Bower’s declaration because the EEOC did not submit the declaration to the magistrate judge. However, the subpoena was a dispositive matter triggering Federal Rule of Civil Procedure 72(b) and the district court’s right to receive further evidence. See EEOC v. Schwan's Home Serv.,
        707 F.Supp.2d 980, 987 (D. Minn. 2010) (holding that “an application to enforce an administrative subpoena ... where there is no pending underlying action before the [c]ourt, is generally a dispositive matter”); see also NLRB v. Frazier, 966 F.2d 812, 817-18 (3d Cir. 1992).


author: EDITH H. JONES, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee v. Christopher GUERRA, Defendant-Appellant
    No. 16-41030 Summary Calendar
    United States Court of Appeals, Fifth Circuit.
    FILED May 4, 2017

      Jimmy Eric Pardue, Carmen Castillo Mitchell, Assistant U.S. Attorneys, U.S. Attorney’s Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
    Marjorie A. Meyers, Federal Public Defender, Kathryn Shephard, H. Michael Sokolow, Assistant Federal Public Defender, Federal Public Defender’s Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.
    Before JONES, WIENER, and CLEMENT, Circuit Judges.
   EDITH H. JONES, Circuit Judge:

Defendant-Appellant Christopher Guerra pled guilty to illegally transporting an undocumented alien within the United States and was sentenced, within the guidelines, to 41 months of imprisonment followed by three years of supervised release. As a special condition of his supervised release, the district court ordered Guerra to participate in mental health and drug treatment programs “as deemed necessary and approved by the probation officer.” On appeal, Guerra contends that such language impermissibly delegated to the probation officer the court’s responsibility to determine whether he must participate in mental health and drug treatment. Because Guerra did not object to the challenged release conditions, we review them for plain error. See Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009).

The imposition of supervised release conditions and terms “is a core judicial function that may not be delegated.” United States v. Franklin, 838 F.3d 564, 567-68 (5th Cir. 2016) (internal quotation marks and citations omitted). However, providing appropriate treatment for prisoners with known mental problems is also a core duty of judges. The PSR reflects that Guerra reported a history of mental health treatment for “depression, anxiety, and Post Traumatic Stress Disorder (PTSD)” as well as his past use of alcohol, marijuana, and crack cocaine. The PSR also revealed past diagnoses of PTSD and Antisocial Personality Disorder. Id. At sentencing, Guerra’s counsel likewise pointed out his “mental health issues.” Adopting the PSR, the district court imposed two relevant special conditions on Guerra’s supervised release. First, the court “order[ed] that [Guerra] participate in a drug and|7]or alcohol treatment program as deemed necessary and approved by the probation officer.” Id. Second, the court “impose[d] a mental health condition, which requires [Guerra] to participate in a mental health program as deemed necessary and approved by the probation officer.”

Clearly, based on this history and defense counsel’s representations to the court, the judge intended that treatment be mandatory and left only the details to the probation officer. Lest there be any doubt, we AFFIRM the sentence as MODIFIED—mental health treatment including substance abuse is imposed, details of treatment to be supervised by the probation office.

AFFIRMED as Modified.