JOHN TRICHELL, individually and on behalf of all others similarly situated, Plaintiff - Appellant, versus MIDLAND CREDIT MANAGEMENT, INC., a Kansas corporation, MIDLAND FUNDING, LLC, a Delaware limited company, Defendants - Appellees.
No. 18-14144
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
July 6, 2020
[PUBLISH] D.C. Docket No. 4:18-cv-00132-ACA. Appeal from the United States District Court for the Northern District of Alabama.
KEITH COOPER, individually on behalf of himself and all others similarly situated, Plaintiff - Appellant, versus MIDLAND CREDIT MANAGEMENT, INC., Defendant - Appellee.
No. 19-10120
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
July 6, 2020
D.C. Docket No. 4:18-cv-00082-CDL. Appeal from the United States District Court for the Middle District of Georgia.
Before WILLIAM PRYOR, Chief Judge, MARTIN and KATSAS,* Circuit Judges.
Plaintiffs John Trichell and Keith Cooper received debt-collection letters that they say were misleading, but neither of them claims to have been misled. We consider whether Trichell and Cooper have Article III standing to pursue claims under the Fair Debt Collection Practices Act (FDCPA).
I
The FDCPA seeks to “eliminate abusive debt collection practices by debt collectors.”
In 2017, Midland Credit sent three collection letters to Alabama resident John Trichell, who had defaulted on credit-card debt sometime before 2011. Each letter said that Trichell, who owed almost $43,000, had been ”pre-approved for a discount program designed to save you money.” Trichell App. 1-2 at 1, 2, 3 (formatting in original). The letters offered three repayment plans, all seemingly generous. Trichell could pay off his debt completely for about $13,000. He could pay off his debt in twelve monthly installments of about $1,800. Or he could create his own repayment plan with monthly payments as low as $50. The letters congratulated Trichell and encouraged him to “[a]ct now to maximize your savings and put this debt behind you.” Id.
In fact, the offers were not so generous. Under Alabama law, the governing statute of limitations provides a defense if a suit to recover on a debt was filed more than six years after the last payment. See
Trichell sued Midland Funding and Midland Credit under the FDCPA. He alleged that the collection letters were misleading and unfair in falsely suggesting that he could be sued or that the debt could be reported to credit-rating agencies. Trichell sought to represent a class of similarly situated debtors and to recover statutory damages.
The district court dismissed the complaint for failure to state a claim. The court did not address whether Trichell had Article III standing to maintain his lawsuit. On the merits, the court concluded that the collection letters were neither misleading nor unfair.
The case of Keith Cooper, a Georgia resident, is similar. In 2017, Midland Credit sent a collection letter to Cooper, who had defaulted on credit-card debt in 2010. The letter offered Cooper seemingly attractive options for paying off his balance at steep discounts. But because the debt had been delinquent since 2010, claims on it would be time-barred.
Cooper sued Midland Credit under the FDCPA. He alleged that the letter was misleading because it failed to warn that making a partial payment on the debt could constitute a new promise to pay giving rise to a new limitations period. Cooper sought class certification and damages.
The district court dismissed the complaint for failure to state a claim. The court did not consider whether Cooper had Article III standing. On the merits, the court reasoned that because the disclaimer promised no lawsuit, the collection letter was not misleading.
In briefing the appeals, no party raised the question of Article III standing. In both cases, however, we ordered the parties to address that issue at argument.
Before reaching the merits, we must consider our own jurisdiction and that of the district court. See, e.g., Lake Country Estates, Inc. v. Tahoe Reg‘l Planning Agency, 440 U.S. 391, 398 (1979). In particular, we must ourselves decide whether the plaintiffs in these cases have Article III standing, see United States v. Hays, 515 U.S. 737, 742 (1995), and we must do so before reaching the merits, see Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 101-02 (1998).
A
When the delegates to the Constitutional Convention gathered in the summer of 1787, the extent of federal-court jurisdiction formed a focal point of their discussions. See W. Casto, The Supreme Court in the Early Republic: The Chief Justiceships of John Jay and Oliver Ellsworth 5-16 (1995). In a debate over what became Article III, section 2, James Madison urged that the jurisdiction of the Supreme Court be limited to cases of a “Judiciary Nature,” for the “right of expounding the Constitution in cases not of this nature ought not to be given to that Department.” 2 Records of the Federal Convention of 1787, at 430 (M. Farrand ed., 1911). The delegates agreed without objection. Id.
Consistent with Madison‘s admonition, Article III grants federal courts the “judicial Power” to resolve only “Cases” or “Controversies.”
Under settled precedent, the “irreducible constitutional minimum” of standing consists of three elements: the plaintiff must have suffered an injury in fact, the defendant must have caused that injury, and a favorable decision must be likely to redress it. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). The party invoking the jurisdiction of a federal court bears the burden of establishing these elements to the extent required at each stage of the litigation. Id. at 561. Thus, at the motion-to-dismiss stage, Trichell and Cooper bore the burden of alleging facts that plausibly establish their standing. See Ashcroft v. Iqbal, 556 U.S. 662, 677-84 (2009); Salcedo v. Hanna, 936 F.3d 1162, 1168 (11th Cir. 2019).
The “foremost” standing requirement is injury in fact. Steel Co., 523 U.S. at 103. An injury in fact consists of “an invasion of a legally protected interest” that is both “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Defs. of Wildlife, 504 U.S. at 560 (quotation marks omitted). A “concrete” injury must be ”de facto“—that is, it must be “real, and not abstract.” Spokeo, 136 S. Ct. at 1548 (quotation marks omitted). A “particularized” injury “must affect the plaintiff in a personal and individual way.” Id. (quotation marks omitted). Each
As a general matter, tangible injuries qualify as concrete. See Spokeo, 136 S. Ct. at 1549. But the complaints here do not allege that the collection letters caused Trichell or Cooper any tangible injury. For example, neither plaintiff alleges that he made any payments in response to the defendants’ letters—or even that he wasted time or money in determining whether to do so. Instead, when confronted with the standing issue during oral argument, Trichell and Cooper asserted only intangible injuries, in the form of alleged violations of the FDCPA. Intangible injuries sometimes qualify as concrete, but not always. In particular, a plaintiff does not “automatically satisf[y] the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.” Spokeo, 136 S. Ct. at 1549. Rather, “Article III standing requires a concrete injury even in the context of a statutory violation.” Id. To determine whether an intangible injury is sufficiently concrete, we must look to both history and the judgment of Congress. Id.
B
For history, we consider whether the alleged intangible injury bears a “close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts.” Spokeo, 136 S. Ct. at 1549. Spokeo applied this analysis to claims under the Fair Credit Reporting Act (FCRA), which requires consumer reporting agencies to follow procedures to ensure the accuracy of consumer reports, and which authorizes private suits for willful violations. See id. at 1545. The Court analogized statutory claims for the disclosure of inaccurate reports to the traditional torts of libel and slander per se, which permit recovery even if the plaintiff‘s harms are “difficult to prove or measure.” Id. at 1549. So, for example, a FCRA claim arising from the disclosure of an inaccurate zip code would not be actionable, for it is “difficult to imagine” how such a disclosure “could work any concrete harm” that would have been actionable at common law. Id. at 1550. On the other hand, the Ninth Circuit concluded that a FCRA claim arising from the disclosure of false information about the plaintiff‘s age, employment, education, and wealth does involve a concrete injury, and therefore is actionable, because it is similar to claims actionable at common law. Robins v. Spokeo, Inc., 867 F.3d 1108, 1113-17 (9th Cir. 2017). And, of course, a FCRA claim involving not only disclosure of false and sensitive information, but also consequential harms such as a reduced credit score, is also actionable. Pedro v. Equifax, Inc., 868 F.3d 1275, 1279-80 (11th Cir. 2017).
In Perry v. Cable News Network, Inc., 854 F.3d 1336 (11th Cir. 2017), this Court applied a historical analysis to assess Article III standing to raise claims under the Video Privacy Protection Act. That statute prohibits video tape service providers from disclosing customer records, and it provides a cause of action to anyone aggrieved by a violation. See id. at 1340. The Court analogized this statutory cause of action to the traditional tort of intrusion upon seclusion, which makes a defendant liable for invading the plaintiff‘s privacy without any further harm. Id. at 1340-41. Given the similarity of the statutory claim to the traditional tort, the Court held that a
By contrast, the common law furnishes no analog to the FDCPA claims asserted here. The closest historical comparison is to causes of action for fraudulent or negligent misrepresentation, but these torts differ from the plaintiffs’ claims in fundamental ways. For centuries, misrepresentation torts have required a showing of justifiable reliance and actual damages. See Pasley v. Freeman (1789) 100 Eng. Rep. 450, 453 (Buller, J.) (“Fraud without damage, or damage without fraud, gives no cause of action; but where these two concur, an action lies.“); Prosser & Keeton on the Law of Torts §§ 105, 108 (5th ed. 1984). Today as well, a claim for fraudulent misrepresentation still requires the plaintiff to prove harm “caused to him by his justifiable reliance upon the misrepresentation.” Restatement (Second) of Torts, § 525 (1977); see also Restatement (First) of Torts, § 525 (1938). Likewise, negligent misrepresentation claims still require plaintiffs to show harm “caused to them by their justifiable reliance upon” the false information. Restatement (Second) of Torts, § 552; see also Restatement (First) of Torts, § 552. In short, under our common-law tradition, “there can be no recovery if the plaintiff is none the worse off for the misrepresentation, however flagrant it may have been.” Prosser & Keeton, supra, § 110.
The claims asserted here depart dramatically from these centuries of tradition. The plaintiffs seek to recover for representations that they contend were misleading or unfair, but without proving even that they relied on the representations, much less that the reliance caused them any damages. By jettisoning the bedrock elements of reliance and damages, the plaintiffs assert claims with no relationship to harms traditionally remediable in American or English courts. This cuts against Article III standing, for the purpose of that doctrine is to confine courts to their “traditional role.” Summers v. Earth Island Inst., 555 U.S. 488, 492 (2009); see also Spokeo, 136 S. Ct. at 1547; Raines, 521 U.S. at 819.1
C
In assessing injury in fact, we also consider the judgment of Congress. It can matter for two reasons. First, Congress may “elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law.” Defs. of Wildlife, 504 U.S. at 578. So, for example, Congress may make “legally cognizable” the interests of a competitor harmed by conduct that violates a statute. See, e.g., Hardin v. Ky. Utils. Co., 390 U.S. 1, 5-6 (1968); FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 476-77 (1940). Second, Congress is “well positioned” to make its own judgment about which harms are sufficiently concrete, particularized, and imminent to constitute injuries in fact. Spokeo, 136 S. Ct. at 1549. For example, the Telephone Consumer Protection Act (TCPA) prohibits certain unsolicited communications and provides a cause of action to individuals
receiving them. Although the
Congress‘s role in our assessment of Article III standing is necessarily limited. As the master of its own statutes, Congress may freely make injuries legally cognizable for statutory purposes. See Defs. of Wildlife, 504 U.S. at 578. But the requirements of concreteness, particularization, and imminence are “irreducible” elements of Article III itself. See id. at 560-61. In enacting statutory causes of action, Congress must assess for itself whether these constitutional requirements have been met. See
Here, the judgment of Congress disfavors Trichell and Cooper. The FDCPA‘s statutory findings contain one sentence identifying the harms against which the statute is directed: “Abusive debt collection practices contribute to [a] number of personal bankruptcies, to marital instability, to the loss of jobs, and to
invasions of individual privacy.”
The FDCPA‘s private cause of action reinforces this analysis. It provides that a person may recover “any actual damage sustained by such person as a result of” an FDCPA violation and “such additional damages as the court may allow.”
In sum, the FDCPA‘s narrow findings and cause of action affirmatively cut against Cooper and Trichell and, in any event, suggest no congressional judgment firm enough to break with centuries of tradition indicating that misrepresentations are not actionable absent reliance and ensuing damages.3
D
Against this history and congressional judgment, Trichell and Cooper assert standing based on risk and informational injuries. Neither theory works.
1
Trichell and Cooper assert that the collections letters they received created a risk that unsophisticated consumers might be misled into making unnecessary or even harmful payments on time-barred debt. And that risk, they conclude, is enough to establish a concrete injury. This theory suffers from two fatal defects:
First, Trichell and Cooper do not allege that the collection letters posed any risk of harm to themselves. Second, any risk that the letters may have posed to them had dissipated by the time they filed suit.
Risk to Plaintiffs: An injury in fact must be particularized as well as concrete. See Spokeo, 136 S. Ct. at 1548. To be particularized, the injury “must affect the plaintiff in a personal and individual way.” Defs. of Wildlife, 504 U.S. at 560 n.1 (emphasis added). In other words, “the ‘injury in fact’ test requires more than an injury to a cognizable interest.
The plaintiffs’ risk-as-injury theory founders because their complaints do not allege that the collection letters “substantially increased the risk” of harm to Trichell or Cooper. Thole, 140 S. Ct. at 1621. Trichell asserts only that the letters “would lead a consumer to believe that they [sic] had to pay this debt to avoid being sued, credit reported, or having to pay the full amount at some point in the future.” Trichell App. 1 at 6 (emphasis added). Cooper comes closer, but he too falls short. He alleges that the collection letter sent to him “puts an unsophisticated consumer, i.e. Plaintiff, into a difficult position. The consumer is enticed by the prospect of saving a great deal of money on a debt but not advised that by making a payment, he will be re-starting the statute of limitations that could subject him to a future lawsuit for which he previously had an absolute defense.” Cooper App. 1 at 8. Cooper‘s allegation that he was put into a “difficult position” does not support a plausible inference that he was at substantial risk of making any payment. Nor does Cooper‘s allegation that the collection letter “expos[ed] him to a potential lawsuit that he would not have previously been exposed to.” Id. at 8-9. Moreover, Cooper‘s complaint reflects a perfect understanding of why the collection letters were arguably misleading, without any suggestion that Cooper figured this out only after flirting with the idea of making a payment. With no plausible allegation that they were ever at substantial risk of being misled, Trichell and Cooper cannot show standing based on such a risk to others.4
Casillas v. Madison Avenue Associates, Inc., 926 F.3d 329 (7th Cir. 2019), reinforces our conclusion. That case involved an FDCPA requirement to tell recipients of debt-collection letters how to preserve their rights to contest the debt. Id. at 332. The debt collector failed to provide the notice, the plaintiff sued, and the Seventh Circuit affirmed a dismissal for lack of Article III standing. The court reasoned that, because the plaintiff had never planned to contest the debt, she was never
Our analysis draws further support from Frank v. Autovest, LLC, No. 19-7119, 2020 WL 3053199 (D.C. Cir. June 9, 2020). There the plaintiff claimed that the defendants had violated the FDCPA by filing false affidavits in a collection action. The plaintiff invoked the same FDCPA provisions at issue here: Section 807‘s prohibition on misleading statements and Section 808‘s prohibition on unfair collection methods. Id. at *2. The D.C. Circuit held that the plaintiff lacked standing because the false affidavits did not mislead or otherwise injure the plaintiff. Id. As for the judgment of Congress, the court stressed that “[n]othing in the FDCPA suggests that every violation of the provisions implicated here” creates an Article III injury. Id. at *3. Moreover, it made no difference that the affidavits might have misled a hypothetical unsophisticated debtor. Tracking Casillas, the court explained that “[a]fter Spokeo, a plaintiff must demonstrate a subjective—that is, an actual—personal injury for standing even when his merits argument turns on the perspective of an objective, unsophisticated consumer.” Id. at *4. Like the plaintiff in Frank, Trichell and Cooper have failed to allege such a personal injury.
We recognize that other circuits disagree. In Macy v. GC Services Limited Partnership, 897 F.3d 747 (6th Cir. 2018), which involved the same FDCPA
provisions at issue in Casillas, the Sixth Circuit found standing based on the increased forfeiture risk to consumers in general, without any showing that the failure to provide notice placed the plaintiffs at greater risk. See id. at 758–59. Likewise, in Cohen v. Rosicki, Rosicki & Associates, P.C., 897 F.3d 75 (2d Cir. 2018), which involved the
In our view, the approach of the Seventh and D.C. Circuits is more faithful to
Dissipated Risk: In any event, any risk to Trichell and Cooper had entirely dissipated by the time they filed their respective complaints. As noted above, the complaints explain perfectly well why the collection letters were arguably misleading. The complaints thus did not, and could not, make any allegation that Trichell or
By contrast, this Court has rejected claims of
So too here: Even if Trichell and Cooper were placed at risk of being defrauded when they received their collection letters, the risk never materialized, had dissipated before the complaints were filed, and cannot possibly threaten any future concrete injury. For this additional reason, Trichell and Cooper cannot show
Trichell counters that this analysis is inconsistent with Holzman v. Malcolm S. Gerald & Associates, Inc., 920 F.3d 1264 (11th Cir. 2019), which permitted an
2
Trichell and Cooper also seek to base standing on a claimed informational injury. They contend that the
The plaintiffs’ theory invokes two Supreme Court cases addressing when a denial of information constitutes an injury in fact. In Public Citizen v. DOJ, 491 U.S. 440 (1989), the Court held that the government’s refusal to disclose information about prospective judicial nominees, as assertedly required by the
First, the statutes at issue in Public Citizen and Akins made certain information subject to public disclosure. But the
Casillas makes a similar point. That case involved
Second, the plaintiffs in Public Citizen and Akins identified consequential harms from the failure to disclose the contested information. The advocacy organizations in Public Citizen alleged that they needed the information to “participate more effectively in the judicial selection process.” 491 U.S. at 449. And the voters in Akins alleged that the information “would help them (and others to whom they would communicate it) to evaluate candidates for public office.” 524 U.S. at 21. Trichell and Cooper have identified no comparable downstream consequences from their receipt of allegedly misleading communications that failed to mislead. Absent any such concrete impact, they can complain only about receiving information that had no impact on them. As several other courts have recognized, an asserted informational injury that causes no adverse effects cannot satisfy
Finally, we note that Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), is also inapposite. That case arose under the
Havens Realty does not sweep that broadly. For one thing, it is unclear whether the Court rendered a holding about the concreteness of the tester’s injury, as opposed to whether Congress had made the injury legally cognizable under the
III
Neither Trichell nor Cooper suffered an injury in fact when they received allegedly misleading communications that did not mislead them. Because they lack
VACATED and REMANDED.
MARTIN, Circuit Judge, concurring in part and dissenting in part:
Keith Cooper and John Trichell received letters from Midland Credit Management, Inc. (“Midland“) seeking to collect on time-barred debt. Mr. Cooper and Mr. Trichell view these letters as deceptive because they gave the false impression that debts previously owed by the men were still legally enforceable. Mr. Cooper goes a step further, saying that if he had responded to the letter by making a payment on the time-barred debt, he would have unwittingly restarted the statute of limitations. In other words, his payment would have converted a debt he was not legally obligated to pay into one he was. Plaintiffs claim these letters violate the
I believe both plaintiffs have satisfied
I.
I begin with basic principles of our
Contrary to the majority opinion, I read
Plaintiffs’ claims are analogous to the common law torts of abuse of process and fraudulent misrepresentation, and the violations they allege are at the very core of the interests Congress sought to protect when enacting the
A.
Although Congress’s decision to grant a right to sue “is not determinative of
Congress passed the
While unscrupulous debt collectors comprise only a small segment of the industry, the suffering and anguish which they regularly inflict is substantial. Unlike creditors, who generally are restrained by the desire to protect their good will when collecting past due accounts, independent collectors are likely to have no future contact with the consumer and often are unconcerned with the consumer‘s opinion of them.
Id. The report went on to find that “[c]ollection abuse [by debt collectors] takes many forms, including . . . [the] misrepresentation of a consumer’s legal right” as well as “simulating legal process.” Id. Similarly, a House report concluded that at the time of the
To address these abuses, the
In reaching its conclusion that “the judgment of Congress disfavors Trichell and Cooper,” Maj. Op. at 14, I fear the majority opinion trivializes the harm resulting from misleading debt collection letters. The majority holds that the receipt of a deceptive debt collection letter is “like an unwanted text message,” which this Court said is insufficient to confer standing in Salcedo v. Hanna, 936 F.3d 1162, 1168 (11th Cir. 2019). It is not similar, according to the majority, to an unwanted phone call, which this court said is enough to establish standing in Cordoba, 942 F.3d at 1268. Neither comparison withstands scrutiny. The Salcedo plaintiff received a single text message from his former attorney offering a ten percent discount on legal services. 936 F.3d at 1165. The Cordoba plaintiff got advertising phone calls from DIRECTV. 942 F.3d at 1266. Marketing texts or phone calls causing a temporary nuisance to the recipient are a far cry from one of Midland’s letters, which plaintiffs say falsely represented that they were on the hook for tens of thousands of dollars of debt.
The majority also minimizes plaintiffs’ injuries by analogizing them to a person “taking offense that the government has violated other statutes.” Maj. Op. at 15. That the majority relies on Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130 (1992), for this proposition demonstrates the weakness of the comparison. In Lujan, environmental organizations challenged a regulation requiring federal agencies to consult with the Secretary of the Interior about threats to endangered species caused by agency action. Id. at 558–59, 112 S. Ct. at 2135. The appeals court held that the injury-in-fact requirement was satisfied because Congress had “confer[red] upon all persons . . . an abstract, self-contained, noninstrumental ‘right’ to have the Executive observe the procedures required by law.” Id. at 573, 112 S. Ct. at 2143. The Supreme Court reversed, reiterating that standing does not exist to assert a “generally available grievance about government” that “no more directly and tangibly” affects the plaintiffs “than it does the public at large.” Id. at 573–74, 112 S. Ct. at 2143. But in its discussion, the Court recognized the difference between “generalized grievance” cases, like Lujan, and others in which “plaintiffs are seeking to enforce a procedural requirement the disregard of which could impair a separate concrete interest of theirs.” Id. at 572, 112 S. Ct. at 2142. The claims of Mr. Cooper and Mr. Trichell fall squarely into the latter category. They did not allege merely that Midland ran afoul of the
I believe the judgment of Congress supports plaintiffs’ claim that they have each suffered concrete injury.
B.
Also instructive on whether a statutory violation constitutes a concrete injury is an examination of whether it “has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts.” Spokeo, 136 S. Ct. at 1549. The majority recognizes that a statutory violation will often be sufficiently concrete when it is closely related to a claim that has historically been recognized at common law. Maj. Op. at 9–12. This Court’s decision in Perry serves as an example. The panel found Mr. Perry had standing to assert a claim based solely on the violation of a provision of the
I see a close relationship between Mr. Trichell and Mr. Cooper’s
Abuse of process protects against the “the unscrupulous use of the courts by individuals as instruments with which to maliciously injure their fellow men.” Bertero v. Nat’l Gen. Corp., 529 P.2d 608, 614 (Cal. 1974) (alteration adopted) (quotation marks omitted). For over 300 years, common law courts have recognized that “contriving to injure someone by pretense and color of legal process demand[s] redress because it resulted in a loss of reputation, anxiety and the expenditure of funds in defense.” Bd. of Ed. of Farmingdale Union Free Sch. Dist. v. Farmingdale Classroom Teachers Ass’n, Inc., Local 1889, 343 N.E.2d 278, 281 (N.Y. 1975) (citing Savile v. Roberts (1698) 91 Eng. Rep. 1147). Beyond that, “[t]he employment of process to extort property was, of itself, a sufficient cause of action,” a principle which has carried into modern jurisprudence. Id. at 282. And while abuse of process has typically required the initiation of formal legal proceedings, the “effecting [of] a not too subtle threat . . . should be actionable” as well. Id. at 283; cf. Ruberton v. Gabage, 654 A.2d 1002, 1005 (N.J. Super. Ct. App. Div. 1995) (defining “abuse of process” as “the abuse of procedural methods used by a court to acquire or exercise its jurisdiction over a person or over specific property.” (quotation marks omitted)).
The common law also protects against harms resulting from intentionally false communications and misleading nondisclosures. See Dan B. Dobbs et al., The Law of Torts § 662 (2d ed. June 2020 update); Restatement (Second) of Torts § 525 (1977); Cunningham v. Credit Bureau of Lancaster Cty., Inc., No. 17-cv-5102, 2018 WL 6062351, at *6 (E.D. Pa. Nov. 20, 2018) (observing that “the common law has long reflected an interest in avoiding the harms inherent to receiving misleading information“) And some common law courts have allowed plaintiffs “to recover for [emotional] distress arising where the defendant negligently transmits or fails to transmit important information.” Dobbs, supra, § 395.
There is a close relationship between these common law claims and the harms from which Congress sought to guard consumers when it passed the
C.
The idea that where a statute itself protects a concrete interest, a plaintiff need not allege any harm beyond that which was identified by Congress, was as true before Spokeo as it is after. See Spokeo 136 S. Ct. at 1549 (citing Fed. Election Comm’n v. Akins, 524 U.S. 11, 20–25, 118 S. Ct. 1777, 1784–87 (1998), and Pub. Citizen v. Dep’t of Justice, 491 U.S. 440, 449, 109 S. Ct. 2558, 2564 (1989)). Both history and the judgment of Congress suggest that Midland’s violations of the
Other Circuit Courts agree. The majority recognizes that both the Second and Sixth Circuits are at odds with its holding. In Cohen v. Rosicki, Rosicki & Associates, P.C., 897 F.3d 75 (2d Cir. 2018), the Second Circuit considered whether the plaintiff had standing to assert an
In Macy, the plaintiffs claimed the defendant debt collector failed to provide notice, as required under the
II.
Of course, Mr. Cooper and Mr. Trichell cannot establish standing by solely alleging a concrete harm. Rather,
However, I reject the majority’s conclusion as to Mr. Cooper. He met his burden to allege a particularized injury at the pleading stage. Mr. Cooper’s complaint alleges that Midland’s letter put him “into a difficult position” because it “entice[d]” him to make a payment by offering significant savings on his debts. He says that if he had acted on Midland’s letter and made a payment on his debt, he would have “expos[ed] him[self] to a potential lawsuit that he would not have previously been exposed to.” According to the complaint, Midland’s letter thus employed “deceptive means” “[w]ith respect to [Mr. Cooper].” I view Mr. Cooper’s complaint to sufficiently allege that Midland’s letter put him at real risk of making a payment on his time-barred debt.2 He has therefore made the
The majority looks to the Seventh Circuit’s decision in Casillas v. Madison Avenue Associates, Inc., 926 F.3d 329 (7th Cir. 2019), and the D.C. Circuit’s decision in Frank to support its holding that Mr. Cooper did not allege a particularized harm. Neither case lends support to the majority’s holding. In Casillas, the court assessed whether the plaintiff had alleged a concrete injury, as opposed to whether that injury was particularized. Id. at 333 (“The question here is whether Casillas has alleged that she suffered—or faced a real risk of suffering—a concrete harm.“); see also Spokeo, 136 S. Ct. at 1548 (“Concreteness . . . is quite different from particularization.“). And to the extent Casillas held that plaintiffs cannot satisfy the injury-in-fact requirement by alleging an
The majority’s reliance on Frank is similarly unavailing. The Frank court assessed an
III.
The majority also concludes that Plaintiffs could not have suffered an injury in fact because any risk to them “had entirely dissipated by the time they filed their respective complaints.” Maj. Op. at 21–22. I reject this conclusion as well. As set out
Nicklaw v. CitiMortgage, Inc., 839 F.3d 998 (11th Cir. 2016), is not to the contrary. Our court held that Mr. Nicklaw lacked standing because he failed to allege that he was ever subject to either “a harm [or] a material risk of harm that the district court could remedy.” Id. at 1003. The Nicklaw panel also properly recognized that plaintiffs may satisfy
The D.C. Circuit addressed a similar circumstance in Jeffries v. Volume Services of America, Inc., 928 F.3d 1059 (D.C. Cir. 2019). The question in Jeffries was whether the plaintiff suffered an injury in fact when a vendor printed the expiration date and all sixteen digits of her credit card number on her receipt, in violation of the
Here, Mr. Cooper seeks retrospective relief for his past exposure to precisely the sort of risk Congress sought to curb when it enacted the
IV.
Congress passed the
Notes
Although the Court in Thole suggested that plaintiffs must allege a “substantially increased” risk of harm to satisfy