20 F.4th 1184
7th Cir.2021Background
- Brooke Persinger (filed as Brooke Casey) received a bankruptcy discharge in 2017; the discharge listed several former names but omitted a delinquent Viasat debt.
- In Jan. 2018 Southwest Credit received a Viasat account in Persinger’s former name, ran a LexisNexis “bankruptcy scrub,” received no immediate hit, and ordered a propensity‑to‑pay score (a soft pull/consumer report).
- Months later LexisNexis updated Southwest with Persinger’s 2017 bankruptcy; Southwest promptly closed the account.
- Persinger sued under the FCRA (15 U.S.C. § 1681 et seq.), alleging Southwest obtained her consumer report without a permissible purpose; the district court granted summary judgment to Southwest.
- Persinger’s deposition limited her claimed harms to invasion of privacy, stress, and anger; she disavowed monetary, credit, employment, housing, or insurance harms.
- On appeal the Seventh Circuit considered standing (concrete injury), whether the inquiry violated § 1681b, and whether Southwest acted negligently or willfully.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing — concrete injury | Unauthorized access to her propensity‑to‑pay score invaded her privacy and caused dignitary harm | No concrete injury beyond statutory violation; no pecuniary or reputational harm shown | Persinger has standing: privacy intrusion is analogous to intrusion upon seclusion and is a concrete injury under Spokeo/Ramirez and Congress’s FCRA judgment |
| Permissible purpose (§1681b(a)(3)(A)) — collection on discharged debt | Obtaining the report to collect a discharged debt is impermissible under §1681b(a)(3)(A) | §1681b(a)(3)(A) can permit access in some circumstances; statute is not categorically inapplicable because of bankruptcy | Court: collecting on a discharged debt is not a permissible purpose under §1681b(a)(3)(A); but the statute isn’t categorically barred by bankruptcy in all contexts |
| Negligence / actual damages (15 U.S.C. §1681o) | Privacy invasion caused emotional distress and dignitary harm supporting actual damages | No actual damages: Persinger disavowed pecuniary, credit, reputational harms; emotional distress not proven in detail | Summary judgment for Southwest on negligence: Persinger failed to prove actual damages |
| Willfulness / reckless disregard (15 U.S.C. §1681n) | Southwest’s bankruptcy‑notice handling and scrub procedures were flawed or showed recklessness | Southwest had reasonable compliance procedures, relied on LexisNexis, lacked actual knowledge of the bankruptcy | No willfulness: record shows reasonable procedures, no actual knowledge or reckless disregard; summary judgment affirmed |
Key Cases Cited
- Spokeo, Inc. v. Robins, 578 U.S. 330 (2016) (concrete‑injury requirement for Article III standing in statutory‑harm cases)
- TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021) (plaintiffs must show a concrete harm to have Article III standing)
- Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47 (2007) (defines willfulness and reckless disregard standard under the FCRA)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing elements: injury in fact, causation, redressability)
- Crabtree v. Experian Info. Sols., Inc., 948 F.3d 872 (7th Cir. 2020) (acknowledges some §1681b violations can be concrete harms)
- Gadelhak v. AT&T Servs., Inc., 950 F.3d 458 (7th Cir. 2020) (use history and Congress’s judgment to assess concreteness)
- Nayab v. Capital One Bank, 942 F.3d 480 (9th Cir. 2019) (held §1681b(f) violation analogous to intrusion upon seclusion and supported standing)