D. Attorneys’ Fees under the FCRA Are in the Nature of Penalties or Fines Plaintiff requests attorneys’ fees under 15 U.S.C. §§ 1681n(a)(3) and 1681o(a)(2). (See Compl. ¶ 35.) But the Penalty Bar shields Fannie Mae from liability for attorneys’ fees, which are in the nature of penalties. See, e.g., Suntrust Mortg., Inc. v. AIG United Guar. Corp., No. 3:09cv529, 2011 WL 1225989, at *20 (E.D. Va. Mar. 29, 2011)

The statute effectively identifies the class of persons able to recover under the statute – those with “actual damages sustained … as a result of the failure.” 15 U.S.C. § 1681n(a)(1)(A). By its use of the word “or,” the statute permits a plaintiff who pleads some harm to elect to recover minimum compensation, but in no way abrogates the requirement that plaintiffs sufficiently plead (and show) some harm.

A violation of FACTA is subject to standard FCRA remedies. See, e.g., Bateman v. Am. Multi-Cinema, Inc., 623 F.3d 708, 715 (9th Cir. 2010) (stating that “FACTA and other provisions of the FCRA share the same statutory damages provision, ee 15 U.S.C. § 1681n”). Case 4:16-cv-00596-JAS-LCK Document 14-1 Filed 11/11/16 Page 13 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7- requirements of standing simply by alleging that [Spokeo] is in violation of a statute that grants individuals a private right of action,” because “even when asserting a statutory violation, the plaintiff must allege the Article III minima of injury-in-fact.”

77. Plaintiff and the Adverse Action Class are further entitled to recover their costs and attorneys’ fees, pursuant to 15 U.S.C. § 1681n(a)(3). PRAYER FOR RELIEF 78.

Id. at *1. While the requirement allegedly violated in that case related to credit reports (another substantive provision within the FCRA), the court applied the same willful noncompliance statute (Section 1681n(a)) and the same applicable standards for pleading (Twombly/Iqbal) and willfulness (Safeco Ins. Co. of America v. Burr, 551 U.S. 47). The court instructed that to state a claim for a willful violation, “plaintiffs must allege facts related to defendants’ state of mind, particularly facts that allow the Court to draw the reasonable inference that the alleged violations were knowing or reckless.”

ew York State mortgage-recordation statutes), and Jaffe v. Bank of Am., N.A., No. 13-cv-4866 (VB), 2016 U.S. Dist. LEXIS 92899, at *9–12 (S.D.N.Y. July 15, 2016) (same), and Zink v. First Niagara Bank, N.A., No. 13-CV-01076-RJA-JJM, 2016 U.S. Dist. LEXIS 98104, at *8–16 (W.D.N.Y. July 1, 2016) (same); and compare Hancock, 830 F.3d at 514, with Fraser v. Wal-Mart Stores, Inc., No. 2:13-cv-00520-TLN-DB, 2016 U.S. Dist. LEXIS 144351, at *1–2, *15 (E.D. Cal. Oct. 18, 2016) (Article III standing for consumer alleging merchant violated state law prohibiting requests for zip codes at point of sale). Case 2:15-cv-00190-WJM-MF Document 69 Filed 01/12/17 Page 32 of 34 PageID: 1092 26 Plaintiff’s own, particularized, legally protected interest, by printing more than five digits of his credit card number on the sales receipts at the points of sale; (2) this Court can redress J. Crew’s violation of FACTA by awarding statutory and/or punitive damages as provided by the statute, see 15 U.S.C. § 1681n (a)(1)(A), -(2); and (3) the scourge of credit card identity theft through printed receipts presented such an actual threat that it twice merited Congressional legislation in the past 13 years. CONCLUSION J. Crew asks this Court to write FACTA out of the statute books.

Similarly, Congress provided direct sanctions for abusive litigation. See 15 U.S.C. § 1681n(c). Controlling runaway litigation, therefore, and lessening the time and effort that courts and litigants inevitably expend on meritless claims are legitimate public concerns not lost on Congress.

Tr. pp. 50, 55; see 15 U.S.C. §§1681n, 1681o.) Woods’ failure to understand these basic facts concerning the class he represents makes him an inadequate person to represent the interest of the purported class members.

In sum, the record is devoid of any evidence suggesting that Plaintiff received notice of a qualifying adverse action based on information in any TransUnion credit report, within the 60 days preceding October 26, 2011. Thus, as a matter of law, TransUnion was subject to no statutory “requirement” to deliver to Plaintiff the disclosure upon which he sues, and therefore Plaintiff can recover no damages under 15 U.S.C. Section 1681n. In other words, because Plaintiff was not exempt from the fee and because Plaintiff did not pay the $8.

Article III does not prohibit Congress from “elevating to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law.” Lujan v. 9 See 15 U.S.C.§ 1681n note, enacted by Pub. L. 110-241, 122 Stat.