In Shepherd v. Debt Recovery Sols. of Ohio, Inc., No. 3:20-cv-520 (N.D. Ohio Apr. 22, 2021), the court dismissed a putative class action alleging violations of the Fair Debt Collections Practices Act, finding that the named plaintiff had not suffered a concrete injury, and therefore, he lacked standing to assert a claim.
The plaintiff, Jared Shepherd, alleged that a debt collection letter he received from the defendant was misleading and attempted to collect an amount that was not authorized by the agreement creating his debt. Specifically, the letter at issue stated that the defendant "charges a 3% transaction fee for payment via credit card and debit card." Shepherd asserted that this statement "misled and deceived [him] into the belief that he falsely owed an additional 3% transaction fee when this charge is a violation of the FDCPA."
The defendant moved to dismiss Shepherd's claim, asserting that he failed to plead the existence of an actual injury. The court agreed, finding that Shepard's allegations did not show "a material risk of real harm to a concrete interest." Because Shepard was not required to take an action that would cause him to incur a transaction fee, the court concluded that he had not suffered an actual injury, stating:
Even if I assume Defendant's reference to a 3% transaction fee for credit and debit card payments violates the FDCPA, Shepherd's allegations establish only that this assumed violation could have caused him harm. Defendant's letter did not mandate that Shepherd pay by credit card; as Defendant notes, the letter expressly informed Shepherd he was not required to make payments with a debit or credit card.
The ruling that Shepard lacked standing provides another example of courts increasingly focusing on this issue in connection with claims brought under the FDCPA. It is clear that such claims cannot survive where a plaintiff fails to allege some actual, present harm.
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