Looking Ahead: Consumer Rights

A number of recent cases address plaintiffs’ standing under the Fair Debt Collection Practices Act (“FDCPA”), following the Supreme Court’s decision in TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021). In TransUnion, the Supreme Court considered whether members of a certified class of individuals whose credit reports contained incorrect information had suffered a concrete injury under the Fair Credit Reporting Act (FCRA). The FCRA requires that credit reporting agencies use reasonable procedures to ensure accuracy in credit reporting, and the agencies did not use those procedures. Id. at 2206. Only class members whose incorrect information was disclosed to third parties were determined to have standing. Id. at 2209. On the other hand, the Court found no standing for other class members whose information was never disseminated, rejecting the argument that “the mere existence” of incorrect information in their credit reports sufficed to establish a concrete injury. Id. at 2209, 2211.

Since TransUnion, lower courts have grappled with what is required to bring a case under the FDCPA, which establishes legal protections from abusive debt collection practices. Only a few appellate courts have decided FDCPA standing issues since TransUnion, often finding plaintiffs lack standing, but for different reasons. For example, a Fifth Circuit panel independently raised the question of standing and determined that it was lacking. Perez v. McCreary, Veselka, Bragg & Allen, P.C., 45 F.4th 816 (5th Cir. 2022). In Perez, the plaintiff alleged that a form collection letter sent by the defendant failed to inform her that the unpaid utility bill it sought to collect was time-barred under state law. Id. at 820. Applying TransUnion, the Fifth Circuit rejected the argument “that the violation of her statutory rights under the FDCPA itself qualifies as a concrete injury.” Id. at 823.  It also rejected the argument that standing existed because the letter exposed her “to a risk that she might accidentally pay her time-barred debts,” concluding that this was too speculative, and “TransUnion held that merely being subjected to a risk of future harm cannot support a suit for damages.” Id. at 824 (citing TransUnion, 141 S. Ct. at 2210–11).

Similarly, in Ward v. National Patient Account Services Solutions, the Sixth Circuit held that a violation of the FDCPA by itself was not sufficient to create standing. 9 F.4th 357, 363 (6th Cir. 2021). Ward involved a situation where the consumer received two similar billing statements and two similar voicemail messages from NPAS, Inc., which had been hired by a medical provider to collect unpaid medical bills. Id. at 360. The consumer sent a letter to unrelated entity NPAS Solutions, LLC, directing it to stop communicating with him. Id. The consumer sued, alleging FDCPA violations. In dismissing the claim, the Sixth Circuit explained that “confusion alone is not a concrete injury for Article III purposes.” Id. at 363.

On the other hand, the Tenth Circuit held that a consumer had demonstrated Article III standing based on receipt of an unwanted telephone call and voicemail message after sending a written cease-and-desist request to defendant. Lupia v. Medicredit, Inc., 8 F.4th 1184 (10th Cir. 2021). In that case, after an analysis of the history of the statute and Congressional intent, the court concluded that the consumer had endured a sufficiently concrete intangible harm when she was contacted by the debt collector after it received her cease-and-desist letter. Id. at 1191–93.

Allie Horwitz

ahorwitz@aarp.org

Julie Nepveu

jnepvue@aarp.org

View the Full the Supreme Court Preview