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FCRA Climbing the Ladder for Top Consumer Litigation Statute

According to a report from leading litigation-monitoring service WebRecon, Fair Credit Reporting Act (FCRA) filings have begun to outnumber Telephone Consumer Protection Act (TCPA) filings across the country in recent months. This development represents a drastic shift in consumer protection litigation, as TCPA filings had consistently outpaced FCRA filings over the previous two years.  In each month save one since September 2017, FCRA suits have outnumbered those filed under TCPA. For example, in February 2018, 422 plaintiffs filed suit under the FCRA compared to 296 plaintiffs alleging violations of the TCPA.

FCRA litigation has not simply started to overtake other consumer credit statutes, but it has started to exceed its own track record. The 422 suits filed under the FCRA in February 2018 is a 59.2% increase from the 265 that were filed in February 2017. In the same timeframe, TCPA filings decreased 21.3%. To date, in raw numbers, 2018 FCRA suits have outnumbered TCPA suits 731 to 611. Noteworthy, the report shows a higher percentage (36.3%) of all FCRA suits are filed as class actions, as compared to the TCPA (22.3%) and Fair Debt Collection Practices Act (FDCPA) (23%).  Putting aside record breaking class actions like the $60 million verdict against TransUnion, it is not unheard of for individual suits to involve six-figure verdicts because of the availability of punitive damages. For example, the Ninth Circuit upheld a $430,000 jury verdict in an individual suit just last year.

The report also shows that many consumer plaintiffs are repeat players—about 33% of all plaintiffs alleging FCRA, TCPA, or FDCPA violations in February 2018 had filed at least one similar suit before. Combined, these repeat player plaintiffs had filed about 4,069 lawsuits under the various consumer protection statutes since 2001.

While the D.C. Circuit’s opinion in ACA International, Inc. v. FCC could take the blame for giving pause to some would-be TCPA filers, it merits mentions that the WebRecon report only reflects data pre-dating that decision. Further, despite recent U.S. Supreme Court rulings like those in Midland Funding, LLC v. Johnson and Henson v. Santander Consumer USA, Inc., FDCPA suits still outpace all others, and TCPA filings generally remain strong. However, this consistent uptick in FCRA suits makes clear that consumers and the plaintiffs’ bar have set their sights on the FCRA for individual and ever increasingly class action suits.