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Posts published in “FCRA”

Fair Credit Reporting Act

3rd Cir. Rules Violation of Statute Without Concrete Harm Enough for Standing, At Least in Data Breach Cases

The U.S. Court of Appeals for the Third Circuit recently reversed the dismissal of a putative class action under the federal Fair Credit Reporting Act (FCRA) based on the theft of laptops from a health insurer containing sensitive personal information, holding that the plaintiffs had standing to sue because Congress created a statutory remedy for the unauthorized transfer of personal information, the disclosure of which constituted a cognizable injury, regardless of whether the stolen information was actually used improperly. A copy of the opinion in In re Horizon Healthcare Inc. Data Breach Litigation is available at: Link to Opinion. The…

MD Fla. Holds Non-Foreclosure Collection on Time-Barred Debt Does Not Provide Basis for FDCPA or FCCPA Claim

The U.S. District Court for the Middle District of Florida recently granted in part a mortgage loan servicer’s motion to dismiss a consumer borrower’s claims under the federal Fair Debt Collection Practices Act (FDCPA), the Florida Consumer Collection Practices Act (FCCPA), the Real Estate Settlement Procedures Act (RESPA), the federal Fair Credit Reporting Act (FCRA), and the federal Declaratory Judgment Act (DJA), holding: (a) the borrower’s complaint stated claims under the FDCPA and FCCPA because the allegations raised a plausible inference that the servicer knew the borrower was represented by counsel; (b) the borrower’s allegations that the statute of limitations…

6th Cir. Reverses Dismissal of Data Breach Consolidated Class Actions

In an unpublished ruling, the U.S. Court of Appeals for the Sixth Circuit recently reversed the dismissal of consolidated class actions arising from a data breach, holding that the plaintiffs had Article III standing to pursue certain tort claims and that the district court had erred in dismissing a federal Fair Credit Reporting Act claim for lack of subject matter jurisdiction. A copy of the opinion in Galaria v. Nationwide Mutual Insurance Company is available at:  Link to Opinion. The plaintiffs brought class actions against an insurance company alleging violations of the FCRA and common law tort claims for invasion of…

11th Cir. Holds FCRA ‘Reasonable Investigation’ May Require Assignee to Examine Account-Level Documents

The U.S. Court of Appeals for the Eleventh Circuit recently reversed in part a trial court’s ruling granting summary judgment in favor of a debt buyer, its affiliated debt collector and their parent company, holding that a reasonable jury could find that the defendants willfully violated section 1681s-2(b) of the federal Fair Credit Reporting Act when they reported two charged-off debt accounts as “verified” without obtaining sufficient documentation that the debts in fact belonged to the plaintiff consumer. In so ruling, the Court held that a jury could find that because the buyer retained the right to seek account-level documentation…

5th Cir. Confirms Self-Serving Testimony of Emotional Distress Insufficient Under FCRA, Commercial Losses Not Recoverable

The U.S. Court of Appeals for the Fifth Circuit recently confirmed that the federal Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq., does not allow recovery for commercial or investment property losses. The Court also concluded that where a plaintiff points to no evidence that the denial of credit was actually caused by the defendant’s inaccurate credit reporting, judgment is proper in favor of the furnisher. Finally, the Fifth Circuit concluded that a plaintiff is not entitled to emotional distress damages where the only evidence of emotional distress is the plaintiff’s own self-serving and conclusory deposition testimony. A…

How Spokeo May Limit Consumer Financial Services Litigation

Yesterday’s decision from the U.S. Supreme Court in Spokeo v. Robins should bolster the defense of companies subject to several federal consumer protection statutes. The ruling addresses lawsuits that claim an injury created solely by the violation of a federal statute and require the plaintiff to demonstrate not only that the statute was violated, but that the plaintiff herself suffered harm. The opinion does not go as far as many in the consumer financial services industry would have liked (not all injuries must be “tangible”), but it does close the door on civil lawsuits many have faced. The opinion was…

7th Cir. Holds Customer Did Not Agree to Online Contract, Adopts ‘Reasonable Communicativeness’ Test

The U.S. Court of Appeals for the Seventh Circuit recently held that, under Illinois law, a website must provide a user reasonable notice that use of the website and a click on a button constitutes assent to the terms of an agreement, in order for the agreement to be binding. In so ruling, the Seventh Circuit adopted a two-part “reasonable communicativeness” test for the enforceability of online agreements: (1) whether the web pages presented to the customer adequately communicated all of the terms and conditions of the agreement; and (2) whether the circumstances support the reasonable assumption that the customer…

4th Cir. Upholds Injunctive Relief Class Settlement in FCRA Action

The U.S. Court of Appeals for the Fourth Circuit recently rejected a challenge to a class action settlement by a group of consumers objecting to the release of statutory and punitive damages claims – but not claims for actual damages – in exchange for non-monetary injunctive relief under the federal Fair Credit Reporting Act (FCRA), holding that the district court did not abuse its discretion in approving the settlement or awarding attorney’s fees to class counsel. A copy of the opinion in Gregory Thomas Berry et al. v. LexisNexis Risk & Information Analytics Group Inc. et al. is available at: Link to…

Credit Bureau Settles FCRA Class Action Alleging Reporting Errors

A credit reporting agency has settled a long-pending class action lawsuit in the U.S. District Court for the Eastern District of Virginia, agreeing to pay more than $3 million and remove from its consumer credit reports judgments entered in Virginia General District Court. The Fair Credit Reporting Act (FCRA) class action, Soutter v. Equifax Information Services LLC, was given the green light in April, with U.S. District Judge Robert E. Payne agreeing the standards for class certification had been met. In the class claim, plaintiff Donna K. Soutter contended Equifax willfully violated the FCRA when it failed to take reasonable…

Could Spokeo Mean Rough Road Ahead for FCRA, TCPA, FDCPA Plaintiffs?

Yesterday’s oral argument before the U.S. Supreme Court in Spokeo v. Robins suggests a struggle to fashion an understanding of what can constitute an “injury in fact.” It pitted the issue of whether a plaintiff’s standing to sue requires a tangible, concrete injury (loss of money, a job or property right) against the concept that the law can identify a “harm” (in this case, inaccurate information in a credit report) which itself is a real injury. Finding the Injury Spokeo v. Robins concerns an alleged violation of the Fair Credit Reporting Act. Robins claimed Spokeo compiled a report about him that contained false information…

2nd Cir. Holds ID Theft Claim Under NY’s FCRA Not Preempted by Federal FCRA

The U.S. Court of Appeals for the Second Circuit recently held that identity theft claims under New York’s Fair Credit Reporting Act based on a bank’s alleged vicarious liability for identity theft supposedly perpetrated by its employees are not preempted by the federal Fair Credit Reporting Act (FCRA). However, to the extent that the claims could arguably be read to include the theory that the bank was liable because it furnished false information to consumer reporting agencies, the Court held that such claims are preempted under the FCRA because they plainly concern the bank’s legal responsibilities as a furnisher. A…

Mass. Federal Court Imposes FCRA Preemption on State Law Claims

The United States District Court for the District of Massachusetts recently held that the federal Fair Credit Reporting Act (FCRA) preempts Massachusetts state law claims for violations of the Massachusetts Credit Reporting Act, Mass. Gen. Laws ch. 93, § 54A, and the Massachusetts Consumer Protection Act, Mass. Gen. Laws ch. 93A. The decision also held that the mere furnishing of information following a bankruptcy discharge, without more, is not actionable. A copy of the opinion is available at: Link to Opinion. The decision adds to a growing split among federal courts on both issues. Credit Reporting a Loan Modification and…