by David Arkush
Readers may recall that in Safeco Insurance Co. v. Burr, 127 S. Ct. 2201 (2007), previously discussed here and here, the Supreme Court held that the language "willfully fails to comply with any requirement imposed under this subchapter," 15 U.S.C. § 1681n(a), encompasses not just knowing, but also reckless violations of the Fair Credit Reporting Act (FCRA).
To my surprise, the September 28th issue of the Class Action Litigation Report (BNA) contains an attempt to read this as a pro-defense ruling that creates a consumer harm requirement. The "Analysis & Perspective" piece argues that, after Safeco, a defendant is not liable for statutory violations unless it "subjected the consumer to 'an unjustifiably high risk of harm that is either known or so obvious that it should be known.'" (emphasis added). This interpretation would allow defendants to escape liability for statutory violations in numerous cases. But it's dead wrong.