Actual Damages Not Required to Recover Punitives [Willful]

David A. Szwak

Actual Damages Not Required to Recover Punitives [Willful]

Postby David A. Szwak » Thu Nov 03, 2005 1:32 pm

Riley v. Equifax Credit Information Services
194 F.Supp.2d 1239

Punitive damages are also recoverable under the FCRA, even in the absence of actual damages. Northrop v. Hoffman of Simsbury, Inc., 12 Fed.Appx. 44, 50 (2nd Cir.2001) ("Actual damages are not a statutory prerequisite to punitive damages") citing Yohay v. City of Alexandria Employees Credit Union, Inc., 827 F.2d 967, 972 (4th Cir.1987) ("award of punitive damages in the absence of any actual damages, in an appropriate case, comports with the underlying deterrent purpose of the FCRA"). Accord TRW, Inc. v. Andrews, 534 U.S. 19, 122 S.Ct. 441, 451, 151 L.Ed.2d 339 (U.S.2001) (in dicta, stating: "Punitive damages, which [plaintiff] sought in this case, could presumably be awarded at the moment of TRW's alleged wrongdoings, even if 'actual damages' did not accrue at that time."). To be entitled to punitive damages in an FCRA case, the plaintiff must demonstrate that the defendant "wilfully failed to comply with any requirement imposed under" the FCRA. § 1681n. The Fifth Circuit recently explained: to show that a defendant's conduct was "willful," the plaintiff need not show "malice or evil motive," but must show that "the agency 'knowingly and intentionally committed an act in conscious disregard for the rights of others." ' Cousin v. Trans Union Corp., 246 F.3d 359, 372 (5th Cir.2001) quoting Fischl v. General Motors Acceptance Corp., 708 F.2d 143, 151 (5th Cir.1983) and Pinner v. Schmidt, 805 F.2d 1258, 1263 (5th Cir.1986). The Fourth Circuit, in applying the same " 'conscious disregard for the rights' of the consumer" standard, has noted that "summary judgment is 'seldom appropriate' on whether a party possessed a particular state of mind." Dalton v. Capital Assoc. Indus., Inc., 257 F.3d 409, 418 (4th Cir.2001) (but holding that summary judgment was appropriate on the willfulness issue where "evidence that [the credit reporting agency] acted willfully [was] wholly lacking") citing Magill v. Gulf & W. Indus., Inc., 736 F.2d 976, 979 (4th Cir.1984).

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