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Wednesday, June 06, 2007

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Friend of the Cause

It is truly interesting the positive spin that can be taken from anything that the US Supreme Court does. This matter, in my opinion, is an 80% victory for the users and providers of credit reports.

Although 'reckless disregard' was deemed to be a test for wilfullness - if courts apply the 'objective' standard as implied by the decision it will be very difficult for any matter to be a willful violation that is a matter of first impression. The FCRA is a terribly written statute. The FTC has done no favors for anyone with their position that they will not provide any guidance or letters on FCRA matters, and stating over and over they only want to be an enforcement agency not a regulator. Without a willful violation hook there is no way that a class action, under the FCRA, can be upheld (actual damages would be invidualized for each class member).

I would submit that the same circuits that found willfulness to require actual knowledge will be very aggressive in dismissing willfulness claims using the objectiveness language - and the two outlying circuits will now be faced with making a determination that there was meaningful precedent or guidance so they can make an objective determination that there was, on its face, an appearance that the action that was taken was more likely than not - incorrect as a matter of law. After they make that determination, unless it is so obvious that the party snubbed its nose at valid on point precedent, it would seem the second piece of the puzzle then comes into play. That piece is the subjective issues of why the action was taken, what information was relied upon, etc. - and legal advice would be, assuming facts relied upon were accurate, a powerful defense otherwise the Crt would have totally shot it down in its footnote.

So agree better than the Crt saying actual knowledge was the test - but not much more.

buy wholesale

Imagine Discover’s claim to have 50 million cardholders. That would indicate they have 50 million to perhaps 100 million or more Social Security numbers in their files. Certainly all of that personal information and

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