On July 6, the Eleventh Circuit held that two recipients of debt collection letters lacked Article III standing to pursue claims against a debt collection agency under the Fair Debt Collection Practices Act (“FDCPA”). Although the plaintiffs alleged that they received misleading letters, they did not allege that they were actually misled, and therefore did not plead concrete, particularized injuries as required by Article III. The case deepens a circuit split concerning standing to sue for intangible statutory violations in the wake of the Supreme Court’s Spokeo decision.

• Plaintiff John Trichell, who had defaulted on about $43,000 of credit card debt, received a letter from defendant Midland Credit Management, Inc. stating that he had been pre-approved for a repayment program. The letter encouraged him to “act now” to maximize his savings. Under governing Alabama law, however, any claim to recover the debt was time-barred, since Trichell had made no payments on it for over six years. The letter referenced this legal point in a disclaimer, stating that Trichell could not be sued given the age of the debt, nor would the debt be reported to a credit bureau. Plaintiff Keith Cooper, a Georgia resident, received a similar letter from Midland for a debt that was uncollectible under Georgia law for the same reason. Cooper’s letter contained an identical disclaimer.
• Plaintiffs brought claims against Midland under the FDCPA, which prohibits a debt collector from making a misleading representation to collect a debt. Trichell alleged that his letter was misleading because it suggested that he could be sued for the debt or that it could be reported to a credit bureau. Cooper alleged that his letter was misleading because it did not warn him that making a partial payment on the debt could constitute a new promise to pay and therefore give rise to a new limitations period. The district court dismissed each complaint for failure to state a claim but did not address standing.
• On appeal, in an opinion authored by D.C. Circuit Judge Gregory Katsas (sitting by designation), the Eleventh Circuit declined to consider the merits of each plaintiff’s allegations and instead concluded that both Trichell and Cooper lacked standing to bring their FDCPA claims because they failed to allege concrete and particularized injuries.
• With respect to the concreteness requirement, the court first found that neither plaintiff alleged a tangible injury, as they did not allege they made any payments (or even wasted time in determining whether to do so). Instead, both plaintiffs asserted bare procedural violations of the FDCPA.
• Next, the court noted that “[i]ntangible injuries sometimes qualify as concrete, but not always.” Determining whether an intangible injury was sufficiently concrete required the court to consider the common-law history of the injury alleged and the legislative intent behind the enactment of the FDCPA:
  • Looking at the historical background, the court found that the plaintiffs’ claims were not analogous to common law misrepresentation torts (such as fraud) because they did not allege reliance or actual damages. Without such allegations, the plaintiffs could not show that the alleged violations made them “worse off.” “By jettisoning the bedrock elements of reliance and damages,” the court stated, “the plaintiffs assert claims with no relationship to harms traditionally remediable in American or English courts,” which “cuts against Article III standing.”
  • The court further found that the FDCPA’s legislative history disfavored a finding of standing here, as the statute was aimed at preventing abusive debt collection practices that can cause bankruptcy, job loss, and other harms. The court found that those harms were a “far cry” from receiving an allegedly misleading communication that did not actually mislead them.
  • In dicta, the court noted that federal courts “cannot treat an injury as ‘concrete’ for Article III purposes based only on Congress’s say-so”: while Congress’s role in identifying and elevating intangible harms “may inform that assessment,” it “cannot control it.”
• The plaintiffs posited two “injury” theories for purposes of establishing Article III standing: (1) injury predicated on the risk that the letters might mislead unsophisticated consumers into making unnecessary or harmful debt payments and (2) an informational injury based on their right to receive truthful communications from debt collectors.
• The Eleventh Circuit held that the risk-based injury theory failed Article III’s particularization requirement for two reasons:
  • First, particularization requires that the injury affect the plaintiff: “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,” the court concluded.
  • Second, any risk to Trichell and Cooper had dissipated by the time they filed suit. The court observed that standing is judged as of the time the complaint is filed, and neither plaintiff alleged a risk of being misled in the future.
• The Eleventh Circuit also rejected plaintiffs’ purported “informational injury,” holding that the FDCPA is not a public disclosure statute and creates no substantive entitlement to receive information from debt collectors.
• The Eleventh Circuit noted that opinions from the Seventh Circuit and D.C. Circuit concerning Article III standing for alleged FDCPA violations reinforced its conclusions (though, arguably, the Eleventh Circuit’s opinion went further by rejecting the plaintiffs’ standing arguments at the Rule 12 stage). While the dissent by Judge Beverly Martin relied instead upon contrary opinions from the Second and Sixth Circuits, the majority determined that “the approach of the Seventh and D.C. Circuits is more faithful to Article III” since “a statutory violation that poses a risk of concrete harm to consumers in general, but not to the individual plaintiff, cannot fairly be described as causing a particularized injury to the plaintiff.”
• The case is Trichell v. Midland Credit Management, Inc., and you can read more here.