Home > Uncategorized > Does the FCRA require proof of emotional distress at summary judgment? First Circuit Summary.

Does the FCRA require proof of emotional distress at summary judgment? First Circuit Summary.

February 1, 2013

This week I am hoping to begin a series of posts on whether a plaintiff who seeks emotional distress damages in a claim arising under the Fair Credit Reporting Act must present some sort of evidence of those damages to survive summary judgment.  My impression is (and I think the series will bear it out) that different circuits have answered this question differently.  Because most FCRA cases settle, and because evaluating damages is an important aspect of settlement, I think this will be a valuable series for me and for those of you who read this blog.  The series will go through the various circuits in order, beginning here with the First Circuit.

The First Circuit Court of Appeals does not appear to have addressed this question directly.  It noted in Orekoya v. Mooney, 330 F.3d 1, 9 (1st Cir. 2003) that “the Fair Credit Reporting Act (FCRA) … has usually been interpreted to include emotional distress damages within ‘actual damages.'”  But Orekoya did not itself involve a claim for emotional distress damages under the FCRA.

District courts in the First Circuit have addressed the issue as follows:

In Richardson v. Fleet Bank, 190 F. Supp. 2d 81, 87 (D. Mass. 2001), defendant Equifax asked the court to adopt a rule that plaintiffs could not seek emotional distress damages under the FCRA unless they had suffered some other actual loss (e.g., loss of a credit opportunity, loss of employment, loss of housing opportunity, etc.).  The district court refused to adopt that rule and stated that emotional distress damages were viable even without some proof of another “real” injury.

In Allicon v. Wireless, No. 11-cv-007-SM, 2012 U.S. Dist. LEXIS 17165, at **9-10 (D.N.H. Jan. 18, 2012), the court stated that “Plaintiffs may recover damages for emotional distress and punitive damages under the FCRA. While Allicon has reported “hours of consternation” in his efforts to have his records corrected, he has not alleged or proved any mental or emotional distress or injury resulting from such consternation. Accordingly, the court finds that no award of damages for emotional distress is proper.”

In Valvo v. Trans Union LLC, No. 04-70S, 2005 U.S. Dist. LEXIS 39120, at **16-18 (D.R.I. Oct. 27, 2005), Trans Union asked the court to reject plaintiff’s claim for emotional distress damages at summary judgment, on the basis that the plaintiff had not presented sufficient proof of such damages.  It asked the court to follow Cousin v. Trans Union Corp., 246 F.3d 359 (5th Cir. 2001), which required the plaintiff to provide some proof of emotional distress damages at summary judgment.  However, the district court declined to do so, on the grounds that:  1) the First Circuit had never adopted the rule in Cousin; 2) the plaintiff in Cousin had been the only person who received an allegedly inaccurate report (i.e., he could not have been humiliated because nobody else saw it), whereas Trans Union had provided the report in the case before the court to third parties other than the plaintiff; and 3) the question of whether plaintiff had provided sufficient proof of damages appeared to the court to be a fact question best resolved at trial as opposed to summary judgment.

In Veno v. AT&T Corp., 297 F. Supp. 2d 379, 386 (D. Mass. 2003), defendant AT&T asked the court to reject plaintiff’s claim for summary judgment on the grounds that:  1) there was no actual loss other than emotional distress; and 2) the plaintiff had failed to provide sufficient evidence of emotional distress.  The court rejected both arguments.  It stated that:  1) there was evidence that plaintiff had suffered an invasion of privacy, which would be a separate harm over and apart from emotional distress; and 2) while AT&T’s argument that plaintiff’s evidence for summary judgment was weak was “convincing,” it was not proper at summary judgment to resolve that issue against plaintiff, as the non-moving party.

These opinions in the district courts are not completely consistent.  While all of them have favored the plaintiffs, they have not unanimously and flatly rejected two rules that would be favorable to defendants, namely:  1) to claim emotional distress damages, a plaintiff must show some other form of actual damage; and 2) to claim emotional distress damages, a plaintiff must provide some proof thereof.

The courts here do seem to indicate that even if you cannot get emotional damages without evidence of some other “real” injury, when a defendant provides an allegedly inaccurate report to a third party, that is much like the state-law claims of false light or invasion of privacy to be a separate “real” injury, such that the plaintiff can recover emotional distress damages.

The courts here also seem to indicate that given the presumption in favor of the non-moving party, defendants who seek summary judgment on the grounds that the plaintiff has failed to provide evidence of emotional distress damages beyond conclusory testimony will have an uphill climb.  The court in Allicon was the only court of those described here to state that a plaintiff’s evidence of emotional distress was too vague to survive summary judgment, and even that court found that plaintiff should receive statutory damages of $1,000.

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