The Role of a FACTA Expert Witness
The Fair and Accurate Credit Transactions Act of 2003 or “FACTA” amended the federal consumer protection statute called the Fair Credit Reporting Act or “FCRA.” FACTA certainly wasn’t the first amendment to the FCRA, which has been around since the early 1970s and had already been amended many times. The FCRA has also been amended a number of times since FACTA. For example, Dodd-Frank amended the FCRA in 2010.
FACTA’s amendments were significant and non-compliance with FACTA’s requirements have led to many lawsuits alleging non-compliance with one or more of its provisions. And, as with many credit related lawsuits, FACTA lawsuits often have a need for a FACTA expert witness. And like other credit related litigation, FACTA expert witnesses often find themselves on both the Plaintiff and Defendant’s sides.
It’s not uncommon for someone familiar with the FCRA to serve as a FACTA expert witness because the provisions of FACTA have been a part of the FCRA for many years. And at this point FACTA and the FCRA have for all practical purposes become one in the same. For example, many of the identity theft consumer protections of the FCRA didn’t exist before FACTA. The requirement for the credit reporting agencies to allow consumers one free credit report every 12 months didn’t exist before FACTA. And you can thank FACTA for your credit card receipts not displaying your entire account number.
The role of a FACTA expert witness is similar to the role of an FCRA expert witness. A Plaintiff’s expert generally has opinions about the practices of a company that is covered by the FCRA or FACTA and often suggests that a Plaintiff consumer has been damaged because of a company not complying with the Act. On the Defendant’s side the expert witness is generally retained to provide rebuttal to the Plaintiff’s expert’s opinions, as needed.
Similar to FCRA or other credit related lawsuits, the question of damages always comes into play. And like FCRA lawsuits there’s generally an allegation of lower credit scores and some form of economic damages. Economic damage allegations generally include things like credit denials, adversely priced approvals, and being “frozen” out or “chilled” from applying for credit.
There are two types of FACTA experts:
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