Consistent with its expansive view of constitutional standing, the Ninth Circuit recently held that a plaintiff has constitutional standing under the Fair Debt Collection Practices Act to sue for a misrepresentation that was never actually communicated to him.
In Tourgeman v. Collins Financial Services, Inc., the plaintiff brought a class action lawsuit against multiple defendants under the FDCPA. The plaintiff’s claim against one defendant in particular was premised on the allegation that the defendant made misleading representations to the plaintiff in a series of collection letters. That defendant argued that the plaintiff could not possibly have suffered an injury in fact necessary for constitutional standing because he admittedly never received the letters.
Although the Ninth Circuit recognized that a plaintiff must suffer an injury in fact to have constitutional standing, it concluded that the violation of the right not to be the target of misleading debt collection communications was sufficient to confer standing, even if the plaintiff never knew of, and never received, those communications. Effectively, the Ninth Circuit held that a plaintiff can sue for false representation under the FDCPA when the representation, false or otherwise, never actually reached the plaintiff.
The Ninth Circuit’s holding is consistent with its recent decisions finding that the violation of a statute alone, without more, is sufficient to satisfy the injury in fact requirement of Article III. By removing the need for a plaintiff or purported class member to show that he or she was personally affected by a violation of the FDCPA, the Ninth Circuit’s decision may ultimately lower the hurdle for class certification under various federal consumer protection statutes.