Last year, the Supreme Court decided Spokeo, Inc. v.
Robins, 578 U.S.—, 136 S. Ct. 1540 (2016), which
addressed whether the plaintiff adequately pleaded Article III
standing by alleging bare violations of the Fair Credit Reporting
Act, based on the publication of allegedly inaccurate consumer
information. The Court held that the lower court, the Ninth
Circuit, failed to address the "concreteness" component
of the injury-in-fact element of standing and vacated and remanded
for consideration. In its opinion, the Court offered guidance to
the Ninth Circuit, noting that the injury-in-fact element comprises
both particularity and concreteness components. The latter requires
that the injury be "de facto"; "that is, it must
actually exist." While allegations of "a bare procedural
violation, divorced from any concrete harm," will not suffice,
"the violation of a procedural right granted by statute can be
sufficient," so long as the right is tied to some
A recent unpublished decision of the Eleventh Circuit,
Church v. Accretive Health, Inc., 654 F. App'x 990
(11th Cir. 2016) (per curiam), addressed whether a plaintiff
adequately pleaded constitutional standing under Spokeo in
a Fair Debt Collection Practices Act (FDCPA) case premised on the
alleged failure to include required disclosures in a written
communication. The Spokeo issue was raised for the first
time on appeal. In its decision, the court analyzed
Spokeo's instruction that the "risk of real
harm," part of the concreteness requirement, could mean that
"'the violation of a procedural right granted by statute
can be sufficient in some circumstances to constitute injury in
fact' and in such circumstances, a plaintiff need not
allege any additional harm beyond the one Congress has
identified." In application, the court observed that the FDCPA
"requires that debt collectors include certain disclosures in
an initial communication with a debtor, or within five days of such
communication." The court went on to hold that "through
the FDCPA, Congress has created a new right—the right to
receive the required disclosures in communications governed by the
FDCPA—and a new injury—not receiving such
disclosures." That right, the court found, was substantive and
was elevated to the status of a legally cognizable injury. The
court ultimately held that the denial of the right to receive the
disclosure was a concrete injury sufficient to support the
injury-in-fact element of Article III standing.
Church has garnered attention in the FDCPA context and
beyond for its post-Spokeo consideration of whether
alleging a statutory violation suffices to confer standing, with
one district court concluding that "Church has been
widely followed." Hagy v. Demers & Adams, LLC,
No. 2:11-cv-530, 2017 WL 1134408, at *3 (S.D. Ohio Mar. 27, 2017).
We are keeping a watchful eye on the development of Spokeo
in the lower courts as applied to a variety of consumer protection
statutes with statutory damages, including the FDCPA.
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