Can We Say Goodbye to Six-Figure Emotional Distress Jury Awards? The Future of Actual Damages Awards in Light of the Seventh Circuit’s Standing Decisions

Imagine you are a juror selected to sit for a case in which the plaintiff contends that the defendant debt collector violated certain provisions of the Fair Debt Collection Practices Act (“FDCPA”).  You and your fellow jurors find that the plaintiff established a prima facie case for a violation of the FDCPA and that the debt collector is liable to the plaintiff.  The judge then provides you with the following jury instruction:

If you decide for the plaintiff on the issue of the defendant’s liability, you must fix the amount of money that will reasonably and fairly compensate the plaintiff for any of the following elements of damages proved by the evidence to have resulted from the defendant’s violation or violations of the FDCPA:

1. Any actual out-of-pocket loss or expense which the plaintiff has incurred, and which is directly attributable to any violation of the FDCPA on the part of the debt collector.

1. Any damages which the plaintiff suffered on account of any emotional distress, humiliation, or mental suffering, proved by the evidence to have been caused by the violation of the FDCPA on the part of the debt collector.

Emotional distress awards under the FDCPA have spawned an avalanche of comments in recent years.  The law does not set a definite standard by which to calculate compensation for emotional distress damages. There is also no requirement that a witness testifies regarding an appropriate amount of compensation for the violation.  The only requirement is that the compensation for emotional distress must be just and reasonable. 

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Without a fixed standard or limit for actual damages, quantifying the emotional distress can be challenging for a jury and may lead to a significant award.  Over the last decade, numerous financial services companies have been hit with multi-million-dollar judgments or jury verdicts based on claims of emotional distress.  Here are a few examples[1]:

In Saccameno v. Ocwen Loan Servicing, LLC, 372 F.Supp.3d 609 (N.D. Ill., 2019), the plaintiff brought an action against a mortgage loan servicer and lender alleging that they violated the FDCPA by engaging in wrongful loan servicing and debt collection practices.  During the trial, the plaintiff testified that she suffered from depression and anxiety as a result of the defendants’ conduct and that she lived in fear that her home would be repossessed.  The plaintiff further testified she was so upset that she was unable to concentrate on her job and was fired. Several witnesses presented testimony during the trial, including the plaintiff’s doctor who testified that he diagnosed the plaintiff with depression and panic disorder and had prescribed medications. After trial, the jury returned a verdict for the plaintiff, which included an award of $500,000 for emotional distress. 

In Portfolio Recovery Associates LLC v. Mejia, No. 1216-CV34184, 2015 WL 13106253 (16th Cir. Ct. Mo. July 20, 2015), the plaintiff filed suit against the defendant debt buyer asserting that it sued the wrong person for a $1,000 credit card account in violation of the FDCPA.  The plaintiff testified that the lawsuit terrified her and that she feared she would lose her house or be arrested.  A Missouri jury concluded that the debt buyer violated the FDCPA and awarded the plaintiff $250,000 for emotional distress.

In Yazzie v. Law Offices of Farrell & Seldin, No. 10-CV-00292 (D.N.M. July 29, 2011), the plaintiff alleged that the defendant debt collector violated the FDCPA by pursuing her for a debt she did not owe arising from an account that belonged to someone else with a similar name.  The jury found that the plaintiff proved her claims against the debt collector and awarded her $161,000 in actual damages for emotional distress.   

In McCollough v. Johnson, Rodenburg & Lauinger LLC, 637 F.3d 939 (9th Cir. 2011), the plaintiff claimed that the defendant law firm violated the FDCPA by filing a lawsuit against him that was barred by the statute of limitations and continuing to prosecute it for eight months.  At trial, the plaintiff testified that the lawsuit caused him anxiety, pain, an increased temper, and conflict with his wife.  The plaintiff also presented evidence of emotional distress through testimony from a clinical psychologist who examined him in July 2008. During the trial, the plaintiff admitted to a disabling pre-existing condition, but characterized the impact of the lawsuit on him as “the straw that broke the camel’s back.”  The jury found in favor of the plaintiff and awarded $250,000 for emotional distress damages.  The Ninth Circuit Court of Appeals affirmed the jury verdict, finding that ample evidence existed in the record to support the award.

While some of the examples above included testimony from a doctor, others merely included self-serving testimony from the plaintiff regarding the alleged emotional distress.  This demonstrates the ease with which some plaintiffs have succeeded in emotional distress claims. 

Going forward, it will be interesting to see whether the more stringent standing requirements in the Seventh Circuit impact emotional distress claims and reduce the number of six-figure awards for actual damages.

[1] All jury trial emotional distress awards are subject to appeal or review.