No good deed goes unpunished? Recent case suggests this may be true for the FCRA.

March 7, 2014 Leave a comment

In recent days, a number of people have called Seamans v. Temple University to my attention and suggested that I blog about it.  Rather than disappoint them, here goes.

In Seamans, the plaintiff owed about $1100 to Temple University for a student loan.  Unlike normal loans, student loans cannot be discharged in bankruptcy, so if you borrow money to go to college, and then don’t pay the money back, the lender can hound you for it literally to your grave.

The plaintiff did not pay his loan back for almost 20 years.  During this time, it stayed on his credit report.  Normally, debts that you don’t pay “age off” after seven years – they are removed from your credit report due to the seven-year rule in 15 U.S.C. Sec. 1681c.*  However, Congress has stated in something called the HEA that precisely because student loans can be collected forever, they should appear on a borrower’s credit report forever; they are exempt from the seven-year rule.  20 U.S.C. § 1087cc(c)(3) (“a consumer reporting agency may make a report containing information received from . . . an institution regarding the status of a borrower’s account on a loan made under this part until the loan is paid in full”).

Temple saw that past-due student loan debt can stay on a borrower’s report indefinitely.  It also saw that it had no obvious way of telling the consumer reporting agencies that plaintiff’s debt was a student debt and should therefore not be allowed to age off.  So, it came up with a work-around to help the bureaus keep reporting the debt:  it never told them the date of delinquency or the collection history, so that the bureaus would have no way of calculating the seven-year period and would thus keep reporting the debt as past due.

Temple argued that this work-around was simply helping the bureaus to comply with the HEA.  The trial court agreed and granted summary judgment in favor of Temple.  The appeals court disagreed and reversed.  It stated that because the HEA provision only allows “a consumer reporting agency” to keep reporting student loans indefinitely, it did not allow Temple – which is not and never claimed to be a CRA – to help the CRAs do this.

This is not the end of the story; not only did the Third Circuit Court of Appeals say more than I have alluded to here, Temple could go to trial if it wanted to (though it probably won’t).  I end here because I have taken two morals from the story so far, and that’s enough for one blog post.  The morals are:

1.  I already knew this, but the Third Circuit is one of the most plaintiff-friendly appeals courts in the country when it comes to FCRA cases; and

2.  Temple’s “good deed” – its attempt to help the CRAs to comply with the HEA – did not go unpunished.

*The idea of forgiving debts after seven years has a Biblical precedent.  I have always wondered if the seven year in 15 U.S.C. Sec. 1681c was motivated by this Biblical rule.  If anybody knows the answer, please email me and let me know.

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Can you file an FCRA lawsuit even if you haven’t been injured? One court says yes.

February 7, 2014 Leave a comment

The Ninth Circuit Court of Appeals (which hears appeals from federal trial courts in the far West) recently ruled that a plaintiff who did not allege any actual harm could nevertheless sue an internet company for getting certain details about him wrong.  At first glance, this might seem crazy:  how can someone who hasn’t been harmed file a lawsuit?  While the Ninth Circuit is known for the occasional, or more than occasional, crazy decision, this one is not all that unusual.

Here’s the story:  Plaintiff Thomas Robins alleged that Spokeo, an internet site that offers details about people if you search for them by name, got a number of details about him completely wrong.  He didn’t explain how that harmed him, but he did allege that it was a wilful violation of the Fair Credit Reporting Act.

Under the FCRA, plaintiffs can sue for negligent violations or willful violations of the statute.  If you prove negligent violations, you can recover actual damages plus attorney fees.  If you prove willful violations, you can recover actual damages, or statutory damges of $100 – $1000 per violation, plus punitive damages, plus attorney fees.

The statutory damages are key to the court’s decision in Robins.  The court simply said that because the law offers plaintiffs who prove willfulness money damages, even if they haven’t been otherwise harmed, a plaintiff can sue for a willful violation even if he hasn’t been otherwise harmed.

And just to prove it wasn’t crazy, the Ninth Circuit cited a case from the stable, sober Sixth Circuit, which reached the same conclusion.

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FCRA and Proof of Emotional Distress: Conclusion

January 3, 2014 Leave a comment

Over the past year, this blog has been doing a series of posts about the FCRA and emotional distress damages.  The courts broadly agree that plaintiffs can recover money damages for emotional distress caused by a defendant’s FCRA violation.  They disagree, however, about whether and to what extent a plaintiff must “prove” the emotional distress by offering something more than his or her vague testimony.

We started the series in February 2013, with a post on the standard in the First Circuit Court of Appeals, and we ended the series in December 2013, with a post about the 11th Circuit’s approach.  Because there are only 13 federal circuits – and the 12th and 13th, namely the Federal Circuit and the District of Columbia Circuit, had no case law on this issue at all – it looks we’re done.  That means it’s time for a summary.

In retrospect, and assuming that all of the research in each post in the series remains current and hasn’t been changed by newer decisions, it looks as though there is a circuit split over whether a plaintiff must present “proof” of his or her emotional distress in order to receive money damages for that distress in an FCRA case.  The split breaks down as follows:

Skeptical – the Second, Fifth, Seventh, and Tenth Circuits have all taken a fairly skeptical view of emotional distress claims in the FCRA context.  While they don’t all phrase their skepticism in the same way, these courts have all shown a willingness to dismiss a plaintiff’s claim of emotional distress if there is little or no independent injury (i.e., a clear FCRA violation caused by the defendant) and little or no detailed testimony about the distress itself.  The Seventh Circuit has expressed this view most clearly:  it noted that emotional distress is “easy to manufacture” and therefore suggested that courts have to demand specific proof from plaintiffs before allowing them to proceed with claims against defendants.

Permissive – the First, Third, Eighth, and Ninth Circuits have all taken a relatively permissive approach to this issue, noting that the FCRA is a consumer protection statute, and therefore allowing juries to decide whether to believe a plaintiff’s claims about emotional distress.

Moderate – the Sixth Circuit has taken an approach that is neither skeptical nor permissive; it has indicated that courts should demand some proof of emotional distress, but it has also said that a plaintiff’s own testimony may be sufficient if it “reasonably and sufficiently explains” the distress.

Divided – the district courts in the Fourth and Eleventh Circuits are divided about whether to demand proof of emotional distress damages in the FCRA context.  In the Eleventh Circuit, there is no clear standard from the appeals court, and the trial courts have taken different positions on the issue.  In the Fourth Circuit, the appellate court has stated that a plaintiff’s evidence of emotional distress is sufficient if it consists of more than “conclusory” statements, but the trial courts have been divided over whether uncorroborated and somewhat vague testimony is “conclusory” or not.

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Proof of emotional distress and the FCRA: Eleventh Circuit summary.

December 6, 2013 Leave a comment

We’re getting close to the end of our circuit-by-circuit survey of what evidence a plaintiff must have if he wishes to recover emotional distress damages for an FCRA violation.  This month’s focus is on the Eleventh Circuit, which has never addressed this question.  The district courts are divided, as follows.

One line of reasoning can be found in Moore v. Equifax Information Services, LLC, 333 F.Supp.2d 1360, 1365 (N.D.Ga.2004) and then in Brim v. Midland Credit Mgmt., 795 F. Supp. 2d 1255 (N.D. Ala. 2011).  In Brim, the plaintiff won a jury verdict that included emotional distress damages, and the defendant moved to overturn it.  The court refused to do that and explained:

The Eleventh Circuit has never precisely delineated the factors that a court should consider in determining whether the plaintiff’s evidence of emotional distress is sufficient to support the jury’s award of compensatory damages for emotional distress, particularly where, as here, the plaintiff’s damages evidence consists chiefly of his own testimony. However, other district courts in this Circuit have clearly held that damages for mental distress are recoverable under the FCRA even if the plaintiff has suffered no out of pocket expenses; Moore v. Equifax Information Services, LLC, 333 F.Supp.2d 1360, 1365 (N.D.Ga.2004); and the Eleventh Circuit has cited other Circuit cases for the proposition that “a claim for actual or compensatory damages under FCRA may include compensation for emotional distress in the absence of physical injury or out-of-pocket expenses.” Levine v. World Financial Network Nat. Bank, 437 F.3d 1118, 1125 (11th Cir.2006) (citing Bakker v. McKinnon, 152 F.3d 1007, 1013 (8th Cir.1998) (holding that, even in the absence of “out-of-pocket expenses or costs incurred,” the district court did not abuse its discretion in awarding actual and punitive damages when appellees testified “about how they felt when appellant obtained their credit reports and violated their privacy, thereby causing them some emotional distress”); Philbin v. Trans Union Corp., 101 F.3d 957, 963 n. 3 (3rd Cir.1996) (“Given the amorphous nature of the damages at issue, we do not consider it necessary that [the plaintiff] state his damages with any greater degree of particularity.”); Casella v. Equifax Credit Info. Servs., 56 F.3d 469, 474 (2nd Cir.1995) (“[T]he District Court properly recognized that ‘actual damages’ may include humiliation and mental distress, even in the absence of out-of-pocket expenses.”). See also King v. Asset Acceptance, LLC, 452 F.Supp.2d 1272, 1281 (N.D.Ga.2006)(“In FCRA cases, a plaintiff is not required to produce evidence of emotional distress beyond his own testimony.”) (citation omitted).

The other line of cases suggests that Moore was exceptional, because it did not present the court with the precise question of whether a plaintiff, with no evidence beyond his or her own testimony, can survive summary judgment and take a claim for emotional distress damages to trial.  This other line of cases is set forth in Rambarran v. Bank of Am., N.A., 609 F. Supp. 2d 1253, 1267-68 (S.D. Fla. 2009), which cites authority to suggest that if a plaintiff’s only evidence of emotional distress is his or her own testimony, then that is not enough to survive summary judgment:

An independent review of relevant legal authorities reveals that the parties’ stipulation regarding emotional distress damages is consistent with the case law of this Circuit and other Circuits.

The undersigned begins by recognizing that, in King v. Asset Acceptance, LLC, 452 F. Supp. 2d 1272, 1281 (N.D. Ga. 2006), another Court in this Circuit permitted an FCRA claim to proceed to trial even though the only evidence of emotional distress damages was based solely on the plaintiff’s own testimony. This precedent is not persuasive, however, for the reasons that follow. First, the Court in King relied on Moore v. Equifax Info. Servs. LLC, 333 F. Supp. 2d 1360, 1365 & n.3 (N.D. Ga. 2006), for the proposition that “a plaintiff is not required to produce evidence of emotional distress beyond his own testimony.” King, 452 F. Supp. 2d at 1281. Two other courts faced with the same question since Moore was decided, however, have come out the other way and required more than an FCRA plaintiff’s own testimony to support a claim for emotional distress damages. See Sampson v. Equifax Info. Servs., LLC, No. CV204-187, 2005 U.S. Dist. LEXIS 19240, 2005 WL 2095092, at *5 (S.D. Ga. Aug. 29, 2005) (collecting cases and concluding that an FCRA plaintiff “must produce some form of independent, corroborating evidence of her humiliation and embarrassment at trial to recover compensatory damages for emotional distress”); Jordan v. Trans Union LLC, No. 1:05 CV 305 GET, 2006 U.S. Dist. LEXIS 38785, 2006 WL 1663324, at *7-8 (N.D. Ga. June 12, 2006) (holding, in a case arising under the FCRA, that “[t]he remainder of plaintiff’s complaints such as feeling frustrated and degraded are insufficient, standing alone, to support damages for mental anguish.”). In addition, Moore provides dubious support for the conclusion reached in King, because the plaintiff in Moore did not rely exclusively on his own testimony of emotional distress damages to withstand summary judgment, as there was evidence of actual monetary damage based on “Equifax’s publication of the inaccurate bad check report in plaintiff’s credit file, [which caused] a lender [to] require[ ] plaintiff to pay a higher interest rate on his mortgage loan than he would have otherwise.” Moore, 333 F. Supp. 2d at 1365. Finally, in Moore, unlike the instant case, the emotional distress damages were found to arise from an identifiable instance where the plaintiff was humiliated when incorrect credit information was published to a third party. Id. Here, Plaintiff’s claim for emotional distress damages is not tied to a discrete breach of the FCRA. In sum, it is Plaintiff’s burden to prove that he was injured as a result of an FCRA violation that occurred after March 9, 2006, and Plaintiff’s recitation of distressing economic hardships that he experienced over an eight year period are too vague, too conclusory and too imprecise to meet that burden.

Moreover, the notion that an FCRA plaintiff’s “testimony of emotional distress must be coupled with additional evidence [of] . . . some kind of actual or genuine injury” is consistent with the standard adopted by other courts facing this question. James Lockhart, Annotation, Remedies Available in Private Action Under §§ 616 and 617 (15 U.S.C.A. §§ 1681n, 1681o) of Fair Credit Reporting Act — Other than Attorney’s Fees, 20 A.L.R. Fed. 2d 509, at § 21 (2007) (collecting cases, including Cousin v. Trans Union Corp., 246 F.3d 359 (5th Cir. 2001), and district court cases from the Second, Fifth, Sixth, Eighth, Ninth and Eleventh Circuits); accord Wantz v. Experian Info. Solutions, 386 F.3d 829, 834 (7th Cir. 2004) (“Where . . . the plaintiff’s own testimony is his only evidence of emotional damages, he must explain the circumstances of his injury in reasonable detail and not rely on conclusory statements, unless the facts underlying the case are so inherently degrading that it would be reasonable to infer that a person would suffer emotional distress from the defendant’s action.”) (internal quotation marks omitted); Sloane v. Equifax Info. Servs., LLC, 510 F.3d 495, 503 (4th Cir. 2007) (holding, in a FCRA case, that plaintiffs may not rely on mere “‘conclusory statements’”; rather, they must “‘sufficiently articulate[ ]‘ true ‘demonstrable emotional distress,” including “the factual context in which the emotional distress arose; evidence corroborating the testimony of the plaintiff; the nexus between the conduct of the defendant and the emotional distress; the degree of such mental distress; mitigating circumstances, if any; physical injuries suffered due to the emotional distress; medical attention resulting from the emotional duress; psychiatric or psychological treatment; and the loss of income, if any.”).

In conclusion, there is no settled precedent in the Eleventh Circuit on what evidence a plaintiff must have to press a claim for emotional distress damages.  Some courts say one’s own testimony is enough; others require more.

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Proof of emotional distress and the FCRA: Tenth Circuit summary.

November 1, 2013 Leave a comment

This month, our current series – on how each federal circuit treats proof of emotional distress damages under the FCRA – turns to the Tenth Circuit.  The 10th Circuit has made things easy for us, as it recently decided a case which presented this very issue:  Llewellyn v. Allstate Home Loans, Inc., 711 F.3d 1173 (10th Cir. 2013).

In Llewellyn, the plaintiff borrowed money from a bank to buy a house, and the bank had Ocwen service the loan.  The plaintiff then refinanced his loan, but he didn’t tell Ocwen that (at least not as clearly as he could’ve), and his new bank paid off the old loan by sending money to the old bank, not Ocwen.  The plaintiff, thinking that his loan had been completely refinanced, stopped paying Ocwen.  And Ocwen, knowing that it wasn’t getting payments on a loan that it thought was still open, commenced foreclosure proceedings.  This mess was eventually cleared up, but plaintiff sued Ocwen for violating the FCRA by allegedly failing to properly report the status of his loan to the credit bureaus.

As evidence of his emotional distress damages, the plaintiff submitted an affidavit, together with some medical records, in which he said that he had been healthy before his difficulties with Ocwen, but that afterward, his “health began to rapidly deteriorate”:  he allegedly suffered a recurrence of Crohn’s disease and of depression, plus  “‘severe abdominal pain with stomach and intestinal cramping, along with bloating, constipation, diarrhea, and reoccurring nausea” as well as “drenching night sweats, panic attacks, anxiety, severe kidney pains, horrible joint pains at [his] wrists, neck, hips, jaw, spine, and knees, and low grade fevers and chills.”  711 F.3d at 1182.

Ocwen filed for summary judgment and argued that because the plaintiff’s affidavit was uncorroborated and self-serving, it was not enough evidence of emotional distress to justify a trial.  This caused the 10th Circuit to consider what sort of evidence of emotional distress a plaintiff had to have to survive summary judgment on an FCRA claim.  It stated:

“We agree that in relying on his own testimony, Plaintiff was required to “explain [his] injury in reasonable detail and not rely on conclusory statements,” [Bagby v. Experian Info. Solutions, Inc., 162 F. App'x 600, 605 (7th Cir. 2006)], and conclude he has done precisely that.  Plaintiff detailed the state of his health prior to the Ocwen Defendants’ negative reporting, including the dormancy of his pre-existing conditions; he identified his discovery of the Ocwen Defendants’ negative credit reports as the event precipitating the deterioration of his health; and he described, in great detail, the stress, anxiety, and physical symptoms he experienced after learning of the negative reports and the effect they had on his Crohn’s disease and depression. Plaintiff’s attribution of his symptoms and the deterioration of his health to the Ocwen Defendants’ actions is not so incredible or conclusory we can ignore it.  It is reasonable to infer from the aggravation of Plaintiff’s previously managed conditions and the development of several new symptoms at precisely the time Plaintiff discovered the negative reports on his credit report that the Ocwen Defendants’ actions caused these forms of emotional damages. This inference is no less reasonable simply because Plaintiff was diagnosed with diabetes and experienced other stressful life events (including several foreclosures) during the same time period.

Contrary to the Ocwen Defendants’ assertion, Plaintiff was not required to produce evidence to corroborate his detailed and specific testimony in order to survive summary judgment…. Plaintiff described the circumstances surrounding his injury in reasonable and sufficient detail that he was not required to produce further evidence of his emotional distress.  We conclude that his affidavit alone created a genuine dispute as to whether the Ocwen Defendants’ actions caused him to suffer emotional damages.”

711 F.3d at 1182-83.

In summary, in the 10th Circuit, a plaintiff can survive summary judgment on emotional distress damages under the FCRA by either:  i) providing evidence that corroborates his claim of emotional distress (e.g., statements from doctors, family members, etc.); or ii) providing “detailed and specific testimony” as opposed to “conclusory statements.”

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Proof of emotional distress and the FCRA: Ninth Circuit Summary

October 4, 2013 Leave a comment

This month’s most is the latest in a continuing series on what sort of evidence a plaintiff must have to convince a court that he or she has a credible claim for emotional distress damages due to an alleged FCRA violation.  We focus here on the Ninth Circuit.

The Ninth Circuit itself has never decided a case in which this exact question was presented.  But it has said the following about emotional distress damages in general:

“The holding of [Price v. City of Charlotte, 93 F.3d 1241, 1251 (4th Cir. 1996)] that “the evidence of the emotional distress must be demonstrable, genuine, and adequately explained,” [] is not the law of this Circuit:  While objective evidence requirements may exist in other circuits, such a requirement is not imposed by case law in . . . the Ninth Circuit, or the Supreme Court….

Zhang’s testimony alone is enough to substantiate the jury’s award of emotional distress damages. Zhang testified that the job at American Gem was “my dream, working in this country,” and that when he was terminated, he was “troubled,” and “couldn’t believe” it….

Despite the fact that his testimony was hampered by language and translation problems, the jury obviously could have gleaned that he was greatly hurt and humiliated by his termination and the manner in which it was carried out.  Under [Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 513 (9th Cir. 2000)], this testimony is more than sufficient to support a substantial compensatory damage award for emotional distress.”

Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1040-41 (9th Cir. 2003) (several citations omitted).

A number of district courts in the Ninth Circuit have been confronted with the question of how much evidence a plaintiff must have to support a claim for emotional distress damages for an FCRA violation.  Those courts have generally noted the absence of controlling circuit court authority but cited Zhang and concluded that detailed testimony from the plaintiff is enough.  See, e.g., Johnson v. Wells Fargo Home Mortg., Inc., No. 3:05-cv-00321-RAM, 2011 U.S. Dist. LEXIS 92718, at **19-20 (D. Nev. Aug. 17, 2011) (stating that “Importantly, while the Ninth Circuit has not explicitly addressed what type of evidence is necessary to support an award of emotional distress damages under the FCRA, in other contexts, it has declined to follow the Fifth Circuit’s more stringent requirements for emotional distress damages,” and citing Zhang for the applicable standard); Acton v. Bank One Corp., 293 F. Supp. 2d 1092, 1101 (D. Ariz. 2003) (same).

In summary, a plaintiff can survive summary judgment on a claim for emotional distress damages under the FCRA if he or she provides reasonably detailed testimony that explains the distress.

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Proof of emotional distress and the FCRA: Eighth Circuit summary.

September 6, 2013 Leave a comment

The Eighth Circuit Court of Appeals has not yet taken a firm position on what sort of evidence a plaintiff must show to establish a right to emotional distress damages for an FCRA claim.  However, the district courts appear to be inclined toward the Third Circuit’s generous approach as opposed to the Seventh Circuit’s skeptical one, as the following passages will show:

The FCRA provides for “damages for humiliation, mental distress or injury to reputation and creditworthiness, even if Plaintiff has suffered no out-of-pocket losses.” Cousin v. Trans Union Corp., 246 F.3d 359, 369, n. 15 (5th Cir. 2001); see also Millstone v. O’Hanlon Reports, Inc., 528 F.2d 829, 834-35 (8th Cir. 1976). A plaintiff must demonstrate a “genuine injury” to recover an award for emotional distress. Carey v. Piphus, 435 U.S. 247, 264 n. 20, 98 S. Ct. 1042, 55 L. Ed. 2d 252 (1978). Acceptable evidence of a genuine injury includes witness corroboration of any outward manifestation of emotional distress. Forshee v. Waterloo Indus., 178 F.3d 527, 531 (8th Cir. 1999). The Eighth Circuit has not ruled on the standard to be applied to emotional distress damages in a case brought under the FCRA. Other courts have, however, applied the genuine injury test to FCRA claims. See Cousin, 246 F.3d at 371; Murphy, 456 F.Supp.2d at 1093.

In Fahey v. Experian Info. Solutions, Inc., 571 F. Supp. 2d 1082 (E.D. Mo. 2008) the court allowed plaintiff to recover emotional distress damages where plaintiff asserted “he suffered depression and irritability, became uncharacteristically withdrawn, and suffered physical ailments” as a result of defendant’s reporting inaccurate information about him. Plaintiff supported his allegations with an affidavit from a friend who stated “plaintiff became and remained depressed and withdrawn, refused to leave his mobile home to socialize, and appeared like a ‘broken man’ with no motivation to do anything.” Id.

Plaintiff claims she feels violated, devastated, and drained because of the complete loss of control over her own name. Plaintiff also asserts that she has feelings of guilt and responsibility because she believes her family has been burdened by her credit concerns. Plaintiff’s husband has observed a change in her sleep habits during her dispute with the credit reporting agencies. He has seen Plaintiff crying and has witnessed her frustration. Plaintiff’s husband believes she suffers from depression as a result of what has transpired since November 2006. The Court determines this is sufficient evidence of a genuine injury to survive a motion for summary judgment.

Campbell v. Experian Info. Solutions, Inc., No. 08-4217, 2009 U.S. Dist. LEXIS 106045, at **16-18 (W.D. Mo. Nov. 13, 2009).

Most courts within the Eighth Circuit have found that emotional distress qualifies as actual damages. See, e.g., Edeh v. Midland Credit Mgmt., Inc., No. 09-1706, 748 F. Supp. 2d 1030, 2010 U.S. Dist. LEXIS 103888, 2010 WL 3893604, at *10 (D. Minn. 2010); McKinley v. CSC Credit Servs., Inc., No. 05-2340, 2007 U.S. Dist. LEXIS 34528, 2007 WL 1412555, at *5 (D. Minn. 2007); Zean v. Unifund CCR Partners, No. 08-1091, 2009 U.S. Dist. LEXIS 69707, 2009 WL 2461723, at *2-3 (D. Minn. Aug. 10, 2009) (“Relief under the FCRA may also include out-of-pocket damages for emotional distress, even when no out-of-pocket damages have been sustained.” (citing Millstone v. O’Hanlon Reports, Inc., 528 F.2d 829, 834 (8th Cir. 1976) (holding that rule providing no recovery for “mere mental pain and anxiety” is inapplicable in FCRA actions) and Bakker v. McKinnon, 152 F.3d 1007, 1013 (8th Cir. 1998) (holding plaintiffs could recover for emotional distress suffered when their credit reports were unlawfully obtained and their privacy violated based upon testimony regarding how they felt as a result of these acts))).

However, courts are divided on whether the testimony of the plaintiff alone suffices at the summary judgment stage. Compare Edeh, 748 F. Supp. 2d 1030, 2010 U.S. Dist. LEXIS 103888, 2010 WL 3893604, at *10 (“Moreover, HN4Go to the description of this Headnote.emotional distress is, by its nature, extremely subjective, and often the only evidence of emotional distress will be the testimony of the distressed person.”) with McKinley, 2007 U.S. Dist. LEXIS 34528, 2007 WL 1412555, at *5 (“[T]he Supreme Court held that an emotional injury constitutes ‘injury’ . . . only if it would be compensable under the terms of the zone of danger test. [T]he zone of danger test limits recovery for emotional injury to those plaintiffs who sustain a physical impact as a result of a defendant’s negligent conduct, or who are placed in immediate risk of physical harm by that [*885] conduct.” (internal citations and quotation marks omitted)). In McKinley, the court found that the testimony of the plaintiff with affidavits from family and friends as to his “anger, frustration, loss of sleep, and distraction allegedly caused by his credit dispute” were insufficient as a matter of law to survive summary judgment on the issue of actual damages. 2007 U.S. Dist. LEXIS 34528, 2007 WL 1412555, at *5.

Some courts have utilized a middle ground at the summary judgment stage, “requiring that, when a plaintiff’s testimony is the only evidence of emotional damages, the plaintiff must sufficiently explain the circumstances surrounding his or her emotional injury and may not rely on conclusory statements.” Zean, 2009 U.S. Dist. LEXIS 69707, 2009 WL 2461723, at *2-3.

Here, Meyer has presented no evidence of physical injury under the “zone of danger test” — even less evidence than the plaintiff in McKinley who had affidavits from friends and family as to his emotional distress. Utilizing the middle ground of Zean, Meyer has pointed out no other evidence of her emotional distress than her “humiliation” over having to repeat her story and not being believed. (Licup Aff., Ex. A at 133:4-6, Docket No. 26.) Under the more lenient standard of Edeh, that characterizes emotional distress as “highly subjective,” Meyer’s evidence would suffice. As a result, while the Court is skeptical about this portion of Meyer’s claim, the Court finds that the emotional distress Meyer has alleged is sufficient to survive summary judgment.

Meyer v. F.I.A. Card Servs., N.A., 780 F. Supp. 2d 879, 884-85 (D. Minn. 2011).

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