Check out Levine v. World Financial Network, No. 08-10416 (11th Cir. Jan. 12, 2008), a new Fair Credit Reporting Act decision from the Eleventh Circuit. Experian, the mammoth credit reporting company, sold a credit report about the plaintiff to the plaintiff's former creditor. The plaintiff had paid the debt in full and had no existing account with the creditor. At the time Experian sold the credit report, there purportedly existed differing views on whether providing a credit report to a former creditor violates the Fair Credit Report Act, with the Fifth Circuit arguably holding that it doesn't and a Federal Trade Commission advisory letter holding that it does. (To see why the Fifth Circuit's ruling does not necessarily authorize what Experian did in Levine, take a gander at Wilting v. Progressive County Mut. Ins. Co., 227 F.3d 474 (5th Cir. 2000).) So, based on this difference of opinion, and the Supreme Court's recent decision in Safeco Ins. Co. of Am. v. Burr, 127 S. Ct. 2201 (2007), the Eleventh Circuit held that Experian could not be held liable for a "willful" violation of FCRA (which is required to obtain statutory damages under the Act). FCRA has become pretty darn hard to enforce in a private case.
This is all the more reason why it is disadvantageous to use the FCRA or the FDCPA. It is far wiser to invoke state law provisions or simple intentional torts. Although they may attempt to do so, the credit reporting agencies cannot remove if: 1) it is unreasonable that the Plaintiff will receive more than 75k; and 2) you don't use federal law. In most consumer cases, it is unreasonable that a consumer Plaintiff will get more than 75k thus, there is no real reason to stipulate to that in the pleadings or otherwise. Moreover, federal law caps you thus, why use it. Find something in the state code or just allege intentional torts. The preemptive force of the FRCA is not so great as to overcome the pleading of an intentional tort. That is a state law matter.
