In Beaudry v. Telecheck Services, Inc. , — F.3d __, 2009 WL 2633205 (6th Cir. 2009), the Court of Appeals held that a FCRA plaintiff need not plead or prove actual damages — e.g. denial of credit — to recover for a willful violation of FCRA. The Court of Appeals described Plaintiff’s claim as follows:
In 2007, Cheryl Beaudry sued the defendants, a group of foreign corporations who provide check-verification services. According to Beaudry, the defendants failed to account for a 2002 change in the numbering used by the Tennessee driver’s license system, leading their systems to reflect incorrectly that many Tennessee consumers, including Beaudry, were first-time check-writers. Claiming that this error affected her and “hundreds of thousands, if not millions,” of other Tennesseans, Class Action Compl., R. 1, 65 (Aug. 17, 2007), she sought to represent a class of affected consumers, contending that the defendants’ willful failure to provide accurate information entitled the class members to “declaratory relief, injunctive relief, statutory damages, punitive dam-ages, attorneys’ fees, costs and expenses.”
The Court of Appeals rejected this argument, explaining:
The defendants, however, insist that the statute requires something more-that Beaudry allege a different form of “injury”: consequential damages. “Plain-tiff,” they note, “has not … had a check rejected or any other transaction terminated as a result of a TeleCheck recommendation”; nor has she “suffered any harm with respect to the availability of credit.” Br. at 5. But the Act imposes no such hurdle on willfulness claimants. The Act does not require a consumer to wait for unreasonable credit reporting procedures to result in the denial of credit or other consequential harm before enforcing her statutory rights. It requires regulated companies to use “reasonable procedures” when “prepar[ing] a consumer report” “with respect to” a given consumer, and creates a cause of action in favor of the consumer when they do not. 15 U.S .C. §§ 1681e(b), 1681n(a). ¶ Section 1681n, which creates the cause of action for willful violations, also does not impose the con-sequential-damages requirement that defendants wish to add to the statute. “Any consumer,” it says, may sue to recover “any actual damages … or damages of not less than $100 and not more than $1000” from “[a]ny person who willfully fails to comply with any requirement imposed under [the FCRA] with respect to [that] consumer.” 15 U.S.C. § 1681n(a)(1)(A) (emphasis added). Because “actual damages” represent an alternative form of relief and because the statute permits a recovery when there are no identifiable or measurable actual damages, this subsection implies that a claimant need not suffer (or allege) consequential damages to file a claim. A comparison with § 1681o buttresses the point: Congress excluded the statutory-damages option in negligence cases. “Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) (internal quotation marks omitted). ¶ Case law in this and related areas backs up this interpretation. In Murray v. GMAC Mortg. Corp., 434 F.3d 948 (7th Cir.2006), the Seventh Circuit ad-dressed the Act’s prohibition on accessing a consumer’s credit score without her consent and the narrow exception created for lenders who are making a “firm offer of credit” to the consumer. See 15 U.S.C. § 1681b(c)(1)(B)(i). The court explained that individual-damages issues did not preclude class certification because the class representative could seek statutory damages “without proof of injury” in lieu of actual damages. Murray, 434 F.3d at 952-53. Other courts have reached the same conclusion when considering § 1681n statutory damages suits premised on violations of other provisions of the Act. See Ashby v. Farmers Ins. Co. of Or., No. CV 01-1446-BR, 2004 WL 2359968, at *5 (D.Or. Oct. 18., 2004) (holding that no “actual harm” need be proved in an action under § 1681m(a) because “Congress … has stated in plain terms that statutory damages are available as an alternative remedy to actual damages”); accord Gillespie v. Equifax Info. Servs., No. 05 C 138, 2008 WL 4614327, at *7 (N.D.Ill. Oct.5, 2008) (relying on the same reasoning in determining that class treat-ment was appropriate for a violation of § 1681g(a)(1)’s disclosure requirements); Murray v. New Cingular Wireless Servs., Inc., 232 F.R.D. 295, 302-03 (N.D.Ill.2005) (reaching a similar conclusion with respect to a FCRA claim premised on a violation of § 1681b(e)).