American Bar Association’s Business Law Today November Month-In-Brief: Business Regulation & Regulated Industries.

In Santos v. Healthcare Recovery Group, LLC, Plaintiffs Omar Santos and Amanda Clements sued Experian for allegedly willfully violating the FCRA by failing to follow reasonable procedures to ensure the accurate preparation of consumer credit reports when it allowed credit reports to reflect allegedly inaccurate status data. The Plaintiffs, seeking class certification, sued Experian for alleged willful violations of the Fair Credit Reporting Act (FCRA).

The Plaintiffs sought only statutory damages under § 1681n(a)(1)(A). In opposing the Plaintiffs’ motion for class certification, Experian argued that the predominance requirement could not be met because “section 1681n(a)(1)(A) required that the putative class members prove they were injured by a consumer reporting agency’s willful violation of the Act,” and “each class member’s individual proof of damages would predominate over common questions.” The district court denied the Plaintiffs’ motion, and the Plaintiffs appealed to the Eleventh Circuit. On November 6, 2023, the Eleventh Circuit vacated and remanded the district court’s denial of the Plaintiffs’ motion for class certification.

The Eleventh Circuit, joining every other circuit court to address this issue, held that a consumer does not have to prove actual damages under the FCRA to recover statutory damages under § 1681n(a)(1)(A). Specifically, the Seventh, Eighth, Ninth, and Tenth Circuit Courts have all held the same. In so holding, the Eleventh Circuit provided a statutory analysis of § 1681n(a)(1)(A). In answering the question of whether § 1681n(a)(1)(A) allows recovery of statutory damages without proving actual damages, the Eleventh Circuit looked to the “ordinary meaning” of “damages” and looked to the plain meaning of the statute. First, the Eleventh Circuit looked at the different language used in the FCRA for recovery of actual damages instead of statutory damages. Second, the Eleventh Circuit looked to the use of “or” between the provision allowing for recovery of actual damages and the provision allowing for recovery of statutory damages. Third, the Eleventh Circuit compared the language in § 1681n(a)(1)(A) to the rest of the FCRA. Fourth, the Eleventh Circuit looked to the title of § 1681n(a)(1)(A) that was added in 1996, and finally the Eleventh Circuit considered how it had read similar language from other federal statutes.

Reprinted with permission from the American Bar Association’s Business Law Today November Month-In-Brief: Business Regulation & Regulated Industries.