What does willful mean?

Under the Fair Credit Reporting Act, for negligent violations of the statute a consumer can recover her actual damages, and attorneys’ fees and costs. 15 U.S.C. § 1681o. For willful violations of the statute, a consumer can recover her actual damages or statutory damages of $100 to $1000, punitive damages, and attorneys’ fees and costs. 15 U.S.C. § 1681n.

Willful Violations

The Supreme Court has stated that “willful” violations include both knowing violations of the statute and reckless violations of the statute. Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 69 (2007). Recklessness means

“a known or obvious risk that was so great as to make it highly probable that harm would follow.” Id.

In other words, a reckless Fair Credit Reporting Act violation is one where the there was a known or obvious risk that the company was violating the law, but the company disregarded that risk. For example, if a company had been told by a court or by an administrative agency that the company’s conduct violated the law, but the company did not change its policies, its conduct could be considered reckless or knowing. Or if many customers had complained about inaccuracies in their credit files, but the credit bureau did not change its procedures, that could be evidence of a willful violation.

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