Do FCRA Punitive Damages Survive the Plaintiff’s Death?

One of the best parts of the Fair Credit Reporting Act (“FCRA”) is a consumer’s opportunity to recover punitive damages against a defendant that willfully violates the Act. Regretfully, sometimes litigation can take several years and a plaintiff can pass away while the case is pending. When then is happens, the personal representative of the estate is usually substituted in as plaintiff and the case continues. However, federal courts in Texas and Florida have recently ruled that punitive damages are not available to the estates.

As reasoned in the Middle District of Florida in Malverty v. Equifax Information Services, LLC:

At least two district courts have held that an FCRA claim for punitive damages is penal and does not survive the death of a party. Beaudry v. TeleCheck Servs., Inc., No. 3:07-0842, 2016 WL 11398115, at *16 (M.D. Tenn. Sept. 29, 2016); Caraballo v. S. Stevedoring, Inc., 932 F. Supp. 1462, 1466 (S.D. Fla. 1996). And numerous courts have held that claims for punitive damages under other generally remedial statutes, like the Americans with Disabilities Act (ADA) and Age Discrimination in Employment Act (ADEA), abate upon the death of a party. See, e.g., Smith v. Dep’t of Human Servs, State of Okla., 876 F.2d 832, 836-37 (10th Cir. 1989) (ADEA); Kettner v. Compass Grp. USA, Inc., 570 F. Supp. 2d 1121, 1133-34 (D. Minn. 2008) (ADA and Rehabilitation Act); Hanson v. Atl. Research Corp., No. 4:02CV00301 SMR, 2003 WL 430484, at *4 (E.D. Ark. Feb. 14, 2003) (ADA); Hawes v. Johnson & Johnson, 940 F. Supp. 697, 704 (D.N.J. 1996) (ADEA). I agree with the reasoning of these cases and find that, even if the FCRA is correctly characterized as a remedial statute, an FCRA claim for punitive damages is penal by nature and does not survive the death of a party. Malverty’s claim for punitive damages is dismissed.

And the Southern District of Texas in Irvin-Jones v. Equifax Information Services, LLC:

The FCRA’s punitive damage provision is more akin to those in the Federal Railroad Safety Act, 42 U.S.C. § 1981a, and others with both remedial and penal provisions. Compare 15 U.S.C. § 1681n(a)(2) (liability for “such amount of punitive damages as the court may allow”) with 49 U.S.C. § 20109(e)(3) (“[R]elief … may include punitive damages in an amount not to exceed $250,000.”) and 42 U.S.C. § 1981a(b) (allowing punitive damages up to $300,000 for each complainant). The punitive damages allowed by the FCRA fall within this category of “plainly penal” punitive claims recognized by other courts rather than the modest statutory damages permitted by TILA. See, e.g., Fulk, 35 F.Supp.3d at 764. Accordingly, the court concludes that Plaintiff’s claims for punitive damages under the FCRA against the Defendants are penal and therefore do not survive her death.

Even with this rulings, estates are still able to recover actual damages and other relief under the FCRA.