The second approach does not require publication of inaccurate information as a prerequisite to recover emotional distress damages. One court held, “A consumer may suffer
1246
Id. (“Stevenson testified that it was a ‘terrific shock’ to him to discover his bad credit rating after maintaining a good credit reputation since 1932.”).
1247
Thompson, 682 F.2d, at 514 (“Even after the error was discovered, Thompson spent months pressing SARMA to correct its mistakes and fully succeeded only after bringing a lawsuit against SARMA. This Court is of the opinion that the trial judge was entitled to conclude that the humiliation and mental distress were not minimal but substantial.”).
1248
Centuori, 431 F. Supp. 2d, at 1010 (“Plaintiff claims damages stemming from emotional distress caused by Experian's willful or negligent failure to properly screen the Public Defender's application for access to its credit history database, leading to the Public Defender's impermissible access of Plaintiff's credit history.”). 1249
Robinson, 560 F.3d, at 241 (The court stated, “Thus, we have distinguished between plaintiff testimony that
amounts only to conclusory statements and plaintiff testimony that sufficiently articulates true demonstrable emotional distress.”).
1250
Casella, 56 F.3d, at 475 (The court held, “Whether or not we would agree with Guimond, we do not believe a plaintiff can recover for pain and suffering when he has failed to show that any creditor or other person ever learned of the derogatory information from a credit reporting agency.” [Emphasis added in original]); Trikas, 351 F. Supp. 2d, at 44 (The court cited the same reasoning as Casella v. Equifax Credit Information Services.). 1251
McKeown v. Sears Roebuck & Co., 335 F. Supp. 2d 917, 933 (W.D. Wis. 2004) (The court held, “… it makes no sense to apply this requirement to other types of emotional distress.”).
1252 Id. 1253
distress if he has difficulty in correcting his credit history or trouble managing his finances until his history is corrected; this is true regardless whether his erroneous information was actually published to a third party.”1254
I believe the “publication” requirement depends on the type of case being litigated. When the consumer alleges that other people knew about the inaccuracy of his credit report, then “publication” should be required. It makes no sense to award emotional distress damages because other people knew about the inaccuracy without proof that the information was already communicated to the others. However, in other cases, consumers may suffer emotional distress even if the information is not communicated to third parties, such as by spending time and effort to correct inaccurate information in the consumers’ credit report.
5.4 Indirect Credit Reporting Damage
Damage resulting from a violation of the FCRA can be direct or indirect damage. Indirect damage or “consequential damage” are defined as “Losses that do not flow directly and immediately from an injurious act but that result indirectly from the act.”1255 When it comes to application, I find it difficult to differentiate between “direct” and “indirect” damages.
However, according to the definition, “direct damages” in the credit reporting context are the damages that result naturally from the violation, while indirect damages are the damages that flow naturally but indirectly from the violation. For instance, denial of credit because of inaccurate information in the credit report is a natural result of errors. However, when credit is denied, “which is direct damages”, effort and money spent to correct the errors, flow naturally but indirectly from errors.
From the types of damages discussed, one can conclude that indirect damages are recoverable, so long so they are foreseeable and reasonably flow indirectly from the violation, and the consumer makes reasonable effort to mitigate the damages.1256
Most of “out-of-pocket expenses”, loss of profit, and loss of opportunities, are indirect damages. For instance, “taking days off” to correct an inaccurate credit report does not flow directly and immediately from the violation. However, it flows naturally indirectly from the violation, especially if the CRA does not cooperate to solve the issue through the mail or over the phone.
5.5 Mitigation of Damage
Mitigation of damage means the plaintiff must “make reasonable efforts to lessen damages.”1257 Such efforts can be actions to lessen damage or negatively by the omission of acts that increase the damage.1258 The effect of mitigation of damage is to reduce the
1254
Id.
1255
BLACK’S LAW DICTIONARY, supra note 163. 1256
City Nat'l Bank of Charleston v. Wells, 384 S.E.2d 374, 383, 385 (W. Va. 1989) (“In sum, we conclude that the plaintiff's evidence of losses due to an impaired credit rating satisfies all the requirements of consequential damages recoverable under the UCC” and ‘To recover consequential damages, the buyer must establish: (1) causation, (2) foreseeability, (3) reasonable certainty as to amount, and (4) that he is not barred by mitigation doctrines’.”).
1257
FISCHER,supra note 1232, at 62.
1258 Id.
recovery of the plaintiff.1259 Not mitigating damage may result in severing causation between defendant acts and the ultimate outcome.
Under one approach, mitigation of damage is not an applicable doctrine in credit reporting damage. One court stated the court “has been unable to locate any FCRA cases addressing a consumer's duty to mitigate damages.”1260 Although the court found no precedent, the mitigation of damage doctrine should apply as fairness and justice require. Another court held that “failure of the consumer to mitigate his damages … should have a “bearing [only] on the [calculation of] damages.”1261
One commentator believes that mitigation of damage should not apply because “requiring mitigation would interfere with fulfillment of the statutory purpose behind the provision.”1262 This argument can be rebutted by stating the defendant is responsible only for the damage he caused. He is not responsible for additional damage caused by plaintiff’s refrainment from mitigating damage.
5.6 Recovering Damage under Islamic Law
Damage issues include damage resulting from intentional and non-intentional acts. Damage under Islamic law is discussed under different categories, but mostly under criminal law in regard to bodily harm and under civil liability in regard to destruction, usurping of real estate or personal properties.1263
5.6.1. Conditions for Recoverability of Damage:
Islamic scholars provide conditions for recoverability of damage as follows.
1- First Condition: Certainty of Right
The protected right or interest (body, mental status, money, etc.) must be certain to be achieved but for the negligence. If the right is not certain to be attained, such as uncertain future profit, then damages cannot be recovered because attainment is doubtful. For example, when “A” hits “B’s” truck and causes “B’s” business to stop, “A” is not liable for lost profit of “B” because realization of the profit is not certain. “B” may lose, the goods may be destroyed, or the market price may drop. Even without “A’s” negligence, “B” may not accomplish the profit. It is possible that “B” benefits from the delay of his business by the increase of prices. 1264 However, if the right is certain to be accomplished, then damage is recoverable.1265 For instance, if “A” causes the electricity of “B’s” building to stop for a week and tenants of that building terminate their contracts because of it, such damage is recoverable as the protected right is certain. If there is no harm at all, then there is no remedy even though the defendant breaches a duty.1266
1259 Id. at 63. 1260 Graham, 306 F. Supp. 2d, at 880. 1261
Hyde v. Hibernia Nat. Bank in Jefferson Parish, 861 F.2d 446, 450 (5th Cir. 1988). 1262
NATIONAL CONSUMER LAW CENTER, supra note 17, at 480. 1263
ALMARZOQI,supra note9,at 200. 1264
Id. at 195. 1265
Id. at 196. 1266
2- Second Condition: Damage must be Real
Damage to the protected interest must be real harm in order to be recovered. Harm is not considered real in three cases.
First, harm is not real when, from the act of defendant, the plaintiff receives a benefit that equals or exceeds the harm inflicted.1267 For instance, when a witness testifies falsely that “A” owes $1000 to “B”, requiring “A” to pay $1000 is harm. However, when “B” releases “A” of the payment for free, “A” suffers no monetary damages.
Second, harm must not be certain to happen regardless of defendant’s negligence. For instance, if a cow is going to die soon because it is sick, the shepherd is not liable if he slaughters the cow.1268 However, he is not allowed to eat the meat, because the meat is the property of the owner. This rule applies only to properties and does not apply to persons. Therefore, a person cannot kill a dying person contending that the person is going to die anyway.1269
Third, the result of the defendant’s act must not be the same intended result of the plaintiff.1270 For example, if “A” hits a wall and causes it to collapse, “A” is not liable for that wall if the plaintiff was planning to destroy it. This rule does not apply if the result is the same but the time or the manner of destruction matters. An example would be if the plaintiff needed the wall for an extra month or he wanted to use the materials of the wall but the defendant caused them to be destroyed.
3- Third Condition: Interest must be Protected, Valuable, and Measurable
The interest (human body, human mentality, or property) must be protected, valuable and measurable.1271 First, some properties are not protected per se under Islamic law such as alcohol1272 and pork. Therefore, destruction of such items, although it is punishable,1273 does not entail liability, according to the strongest opinion.1274 Similarly, destruction that results from self-defense is not protected.1275 When a person defends himself reasonably and destroys a property of the transgressor, he is not liable for the destruction of the transgressor’s property. Likewise, reasonable destruction of the property of a fugitive in the course of pursing him is not protected.1276 Also, when the property is placed in a location in an illegal way, the property is not protected.1277 For instance, if “A” puts a kiosk in the middle of the street against the law, “B” is not liable when he hits the kiosk.
1267
American law has a similar rule known as “Special Benefits Rule”. FISCHER,supra note 1232, at 73.
1268
A cow or the like must be slaughtered in order to be permissible to be eaten. If it dies itself without slaughtering, its meat is not lawful. Therefore, the shepherd saved the property of the owner by slaughtering the cow and making it lawful.
1269
ALMARZOQI,supra note9,at 200. 1270
Id. at 202. 1271 M
UHAMMAD ALDOSARI,CIVIL LIABILITY PREVENTIVES AND ITS JUDICIAL APPLICATIONS 283 (1st edition, Ashbilia Treasures House, 2010); MUHAMMAD ABU SAQ, REMEDIES OF TORT IN ISLAMIC JURISPRUDENCE, at 177 (1st edition 1999); WAHBA AL-ZUHAYLI, LIABILITY THEORY 57-58 (8th edition, the Intellect House & Modern Intellect House, 2008) (1982).
1272
The purchase or sale of alcohol is prohibited unless for medical purposes. 1273
It is punishable if the destruction is without ruler’s permission. The punishment is for usurping the authority of the ruler, but not for the destruction itself.
1274
ALMARZOQI,supra note9,at 203 (Hanfi school provides liability for the destruction of alcohol and pork if the owner is non-Muslim because a non-Muslim has the right to own them.).
1275 Id. 1276 Id. 1277 Id. at 204.
Second, the interest must be valuable and measurable or damages cannot be recovered.1278 The interest must have monetary value that can measured or assessed in the market. Similar to tangible property, there are intangible benefits that have market value such as “residency” of houses, rental time of cars, and the like.1279 Therefore, Islamic scholars differ in regard to the recoverability of moral damage. Although moral damage is valuable, there is no market to assess such value and it cannot be measured.
5.6.2. Emotional Distress under Islamic Law
Islamic scholars differ in regard to the recoverability of moral damage which encompasses emotional distress as follows.