A unanimous decision issued on August 28, 2009, by the U.S. Court of Appeals for the Sixth Circuit may open the door to increased litigation under the Fair Credit Reporting Act. In Beaudry v. Telecheck Services, Inc., the court held that a plaintiff is not required to show actual damages when bringing a claim for a willful FCRA violation.

The defendants in the case were providers of check verification services. The plaintiff’s class action complaint alleged that the defendants' failure to change their database to accommodate a change to Tennessee’s system for numbering driver's licenses made her incorrectly appear to be a first-time check writer to users of their services. She claimed this mistake was a willful violation of the FCRA requirement that a consumer reporting agency follow "reasonable procedures to assure maximum accuracy of the information" in a consumer report and entitled her to statutory damages. The district court dismissed the complaint for failing to allege that the plaintiff had been injured by the violation.

In reversing, the Sixth Circuit focused on the difference between the FCRA's civil liability provisions for willful and negligent noncompliance. For negligent noncompliance, the FCRA allows a consumer to recover "any actual damages"; for willful noncompliance, it allows a consumer to recover "any actual damages ... or damages of not less than $100 or more than $1,000." According to the Sixth Circuit, the availability of such alternate damages for willful violations indicates that a consumer need not suffer or allege actual damages to assert a claim. Such a reading of the FCRA did not create an Article III standing problem in the court's view because the alleged violation of the plaintiff's FCRA rights was, in itself, an injury to her individually.

The Sixth Circuit was also untroubled by the possibility its reading could impose liability for technical FCRA violations that do not result in the reporting of unfavorable, inaccurate information, such as a violation of the "reasonable procedures" requirement that creates no inaccuracy or an inaccuracy that favors the consumer. Apparently, the court found it unnecessary to address that "interesting problem" because it was not presented here.

In dismissing the plaintiff’s complaint, the district court also rejected the plaintiff's argument that even if she did not have a claim for damages, the FCRA allowed her to seek injunctive relief. The Sixth Circuit elected not to address that issue and instead decided to save its resolution "for another day," explaining that not only could changes to the defendants' procedures have rendered the plaintiff's claim for injunctive relief moot but "the reality [is] that the answer to the question is far from self-evident." The Sixth Circuit was unwilling to accept as "right" the Fifth Circuit's decision in Washington v. CSC Credit Services, 199 F.3d 263 ( 2000).  In that decision, the Fifth Circuit had little difficulty concluding—based on a comparison of the FCRA's administrative remedies, which specifically authorize injunctive relief, with its private remedies, which do not—that the FCRA does not permit a private plaintiff to obtain injunctive relief.

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