Yet another Seventh Circuit decision has affirmed that a violation of the Fair Debt Collection Practices Act (FDCPA) does not, by itself, create an injury-in-fact sufficient for Article III standing. This time, however, two judges concurring in judgment voiced their belief that the circuit has gone too far in its interpretation of the Supreme Court’s Spokeo v. Robins holding.
The case, Markakos v. Medicredit, Inc., marks the ninth decision by the Seventh Circuit in the past five months to hold that a breach of the FDCPA, standing alone, does not amount to an injury-in-fact. Plaintiff Rose Markakos asserted defendant Medicredit, Inc. violated the FDCPA by sending her a collection letter that did not include the creditor’s correct legal name. She also asserted that, after she disputed the debt through her attorney, Medicredit violated the FDCPA again by sending a second letter that listed a different amount owed than the first letter. Importantly, she did not allege that she paid more than she owed on the debt or that her response to the debt was altered by the alleged misinformation.
The three-judge panel affirmed the district court’s dismissal without prejudice, holding that Markakos lacked standing because she did not allege the deficient information caused her harm. Citing the “slew of cases” the circuit has recently decided on this issue, the court rejected the plaintiff’s argument that she suffered an informational injury. Since the violation did not cause her to pay extra money, affect her credit, or alter her response to the debt, she was not harmed.
Although the majority opinion’s authoring judge considered the resolution of the standing issue “quite straightforward,” the opinion went further to justify the circuit’s recent injury-in-fact precedent in response to critiques from individual judges on the Seventh Circuit. These critiques have arisen in a dissenting and a concurring opinion in two recent cases and were also raised by the two other judges on the Markakos panel, who concurred based on stare decisis alone (the judicial principle of deciding cases consistently with past decisions). The opinion affirmed that Spokeo made very clear that a violation of a consumer protection statute like the FDCPA, without specific allegations of a harm or an appreciable risk of harm caused by the violation, does not create standing. The opinion pointed to the more recent Supreme Court case Thole v. U.S. Bank N.A. as further support for this position, in which the Court held that the plaintiffs asserting violations of the Employee Retirement Income Security Act had nevertheless received all of their pension benefits and thereby lacked Article III standing.
In two separate concurrences, the other two judges on the Markakos panel expressed their disagreement with the circuit’s recent injury-in-fact decisions. Although they agreed stare decisis required dismissing Markakos’s suit for lack of standing, they believed the circuit’s precedent has gone too far beyond Spokeo by holding a mere statutory violation can never confer standing, even where the violation implicates the core interests Congress sought to address through the statute.
The triad of opinions in Markakos demonstrate that even five years later, lower courts continue to wrestle with Spokeo‘s implications for Article III standing. It is possible the Supreme Court will provide further guidance on this issue in its pending decision in TransUnion LLC v. Ramirez this summer. (While the Court’s decision cannot be predicted with certainty, it is interesting to note that Justice Barrett helped start the Seventh Circuit’s train of “No Harm, No Foul” FDCPA cases before moving to the Supreme Court.) In the meantime, Troutman Pepper will continue to monitor and report decisions expounding on this important issue.