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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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Categories: emotional distress