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Fair Credit Reporting: 3.8.2.1 A Report Is Just One Snapshot in Time

An important point in reviewing the consumer’s report is to realize that it is a snapshot in time. It is not the same report that a potential creditor or other user saw in the past, if for no other reason than new information about the consumer is continually being furnished to CRAs. It is also not the current state of the consumer’s accounts, because there is a time lag. If a creditor makes a monthly dump of information to a CRA, and the consumer makes a payment two weeks later, that payment will not show up on the report until the creditor’s next monthly dump.

Fair Credit Reporting: 3.8.2.2.1 Information provided to users but not consumers

What the consumer sees is not always the same as what a user sees. For example, a user will often request a credit score, which will not be provided to the consumer unless the consumer specifically requests it and pays for it. Even then, the credit score that the user sees may be a different one than that shown to the consumer.650

Fair Credit Reporting: 3.8.2.2.2 Users provided with more information due to looser matching criteria

At least one of the nationwide “Big Three” CRAs sends out multiple reports on a consumer to some users, while only sending one report to the consumer. This occurs where the CRA is not sure whether information in its files belong to the consumer, so that it creates multiple files linked to that consumer, putting information it is unsure of in a second or even third file. Users are supplied reports on any file that may be a match, while the CRA provides consumers only one report that is the closest match.

Fair Credit Reporting: 3.8.2.2.3 Reports provided to users are in a different format

The format of disclosures provided by the nationwide CRAs to consumers can be vastly different than consumer reports provided to users. As one court described it:

The vast majority of credit reports go to credit grantors, who read the information with computers . . . The information is therefore delivered in a computer-generated format “in segments and bits and bytes.” . . . Although this output is easily read by the computers of credit grantors with reference to Defendant’s technical manuals, it is essentially incomprehensible to human beings.

Fair Credit Reporting: 3.8.2.3 Reading the Report

The actual format of the substance of the report will vary from CRA to CRA, and may even vary depending on whether the consumer receives the report online or in the mail. Samples of the reports from the “Big Three” nationwide CRAs are found at Appendix I, infra.

Fair Credit Reporting: 12.1.1 Overview

Development and implementation of a comprehensive discovery plan is essential for success in litigating FCRA cases. Practitioners should establish a plan that will provide access to necessary documents and electronically stored information (ESI) such as consumer reports, consumer reporting agency manuals, policies, and procedures, and, at the same time, lay the foundation for admitting such documents and other information into evidence.

Fair Credit Reporting: 12.1.2 Informal Discovery

Practitioners should informally gather useful preliminary information prior to filing a complaint. As an initial step, consumers, either individually or with assistance from an attorney, should begin the process of gathering all available documents to support their case. The most important of these will be the consumer’s consumer reports and file.

Fair Credit Reporting: 12.1.3.1 Generally

Through interrogatories, depositions (including depositions by videoconference equipment to conduct remote depositions15), requests to produce documents and electronic files, requests for admission and third-party subpoenas, the consumer’s attorney can discover substantial relevant information that is useful to prove a claim. Practitioners should be cautious in accepting defense answers to interrogatories and responses to requests for documents at face value.

Fair Credit Reporting: 12.5.4.1.2 No need to prove actual damages

Although proof of actual damages is essential for any recovery for negligent noncompliance,777 it is not required for an award of statutory778 or punitive damages in an instance of willful noncompliance with the Act.779 The Supreme Court has endorsed this view, stating that punitive damages can be awarded when there is a willful violation, even if no actual damages have accrued.780 However, wh

Fair Credit Reporting: 12.5.4.2.3 Factors affecting the size of the award

The cases do not establish explicit standards for the trier of fact to consider in determining the appropriate amount of punitive damages under the FCRA.797 Among the factors which might be taken into account are: (1) the remedial purpose of the FCRA; (2) the consumer harm intended to be addressed by the Act; (3) the way the defendant conducted its business, including whether it acted with malice;798 and (4) the defendant’s income and net worth.799

Fair Credit Reporting: 12.7.1.1 Generally

The FCRA provides that a consumer who brings a “successful action to enforce any liability” is entitled to recover from the defendant “the costs of the action” as well as “reasonable attorney fees as determined by the court.”873 When applying for fees, the consumer’s attorney must be mindful of the fourteen-day time limitation found in Federal Rule of Civil Procedure 54(d)(2)(B), the Rule’s format requirements, and any applicable local rules.874

Fair Credit Reporting: 12.7.1.2 Are Attorney Fees Mandatory?

Although an FCRA case has yet to rule squarely on the point, it is clear from the statutory language that an award of attorney fees to a successful plaintiff is mandatory.876 The statute provides that a person who violates the Act “is liable” for reasonable fees.

Fair Credit Reporting: 12.7.1.3 What Constitutes a “Successful Action”

As with any fee-shifting statute, issues will sometimes arise as to what is a “successful action” and to what extent an attorney’s time on the case is related to it. The Seventh and Eleventh Circuits have held that a consumer has not brought a “successful” action and is not entitled to any fee award where there was proof of liability but no award of money damages (or possibly some other relief such as an injunction).881 These decisions, however, preceded the Supreme Court’s decision in Hardt v.

Fair Credit Reporting: 12.7.1.5 Costs

Federal Rule of Civil Procedure 54(d)(1) provides that in any federal case, “[u]nless a federal statute, these rules, or a court order provides otherwise, costs—other than attorney’s fees—should be allowed to the prevailing party.” By its terms, “the rule creates a presumption in favor of awarding costs to a prevailing party, but vests in the district court discretion to refuse to award costs.”898 The standard types of costs that are normally awarded to the prevailing party are listed in 28 U.S.C.

Fair Credit Reporting: 12.7.2.1 FCRA Awards Will Be Based on Standards Enunciated in Other Federal Fee-Shifting Statutes As Well

The United States Supreme Court has stated that the standards used for the Civil Rights Attorneys’ Fees Awards Act are generally applicable in all cases in which Congress has authorized an award of attorney fees for a prevailing party.905 Therefore, a single body of law has developed under all the federal fee-shifting statutes as to how to calculate a reasonable attorney fee award.

Fair Credit Reporting: 12.7.3 Maximizing the Chances of an Adequate Fee Award

A plaintiff’s attorney can take several steps to maximize an attorney fee recovery in an FCRA case. The first step is to keep excellent time records that document all time appropriately spent on the case by each attorney and paralegal involved. Some courts will deny any award under a fee-shifting motion if itemized time records are not submitted and the court is therefore unable to determine the reasonableness of the hours requested.932 Do not include time for which a private client could not be billed.