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Date: 06-04-2019
Case Style:
Paula Casillas v. Madison Avenue Associates, Inc.
Case Number: 17-3162
Judge: Barrett
Court: United States Court of Appeals for the Seventh Circuit on appeal from the Southern District of Indiana (Marion County)
Plaintiff's Attorney: David J. Philipps, Mary E. Philipps and Angie K. Robertson
Defendant's Attorney: James R. Branit, Nicholas D. Butovich
Description:
The bottom line of our opinion can
be succinctly stated: no harm, no foul. Madison Avenue Associates,
Inc. made a mistake. The Fair Debt Collection Practices
Act requires debt collectors to notify consumers about the
2 No. 17‐3162
process that the statute provides for verifying a debt. Madison
sent Paula Casillas a debt‐collection letter that described the
process, but it neglected to specify that she had to communicate
in writing to trigger the statutory protections. Casillas noticed
the omission and filed a class action against Madison.
The only harm that Casillas claimed to have suffered,
however, was the receipt of an incomplete letter—and that is
insufficient to establish federal jurisdiction. As the Supreme
Court emphasized in Spokeo, Inc. v. Robins, Casillas cannot
claim “a bare procedural violation, divorced from any concrete
harm, and satisfy the injury‐in‐fact requirement of Article
III.” 136 S. Ct. 1540, 1549 (2016). Article III grants federal
courts the power to redress harms that defendants cause
plaintiffs, not a freewheeling power to hold defendants accountable
for legal infractions. Because Madison’s violation of
the statute did not harm Casillas, there is no injury for a federal
court to redress.
I.
Paula Casillas allegedly owed a debt to Harvester Financial
Credit Union. Presumably acting as an agent of the credit
union, Madison Avenue Associates, Inc. sent Casillas a letter
demanding payment. The Fair Debt Collection Practices Act
requires a debt collector to give a written notice to a consumer
within five days of its initial communication. 15 U.S.C.
§ 1692g(a). That notice must include, among other things, a
description of two mechanisms that the debtor can use to verify
her debt. First, a consumer can notify the debt collector “in
writing” that she disputes all or part of the debt, which obligates
the debt collector to obtain verification of the debt and
mail a copy to the debtor. Id. § 1692g(a)(4). A failure to dispute
No. 17‐3162 3
the debt within 30 days means that the debt collector will assume
that the debt is valid. Id. § 1692g(a)(3). Second, a consumer
can make a “written request” that the debt collector
provide her with the name and address of the original creditor,
which the debt collector must do if a different creditor
currently holds the debt. Id. § 1692g(a)(5). Madison’s notice
conveyed all of that information, except that it neglected to
specify that Casillas’s notification or request under those provisions
must be in writing.
Casillas filed a class action against Madison because of
that omission. She did not allege that she tried—or even
planned to try—to dispute the debt or verify that Harvester
Financial Credit Union was actually her creditor. But the Act
renders a debt collector liable for “fail[ing] to comply with
any provision of [the Act],” id. § 1692k(a), and by neglecting
to notify Casillas of the writing requirement, Madison failed
to comply with a provision of the Act. That, Casillas alleged,
“constitute[d] a material/concrete breach of her rights under
the [Act].” She sought to recover a $1000 statutory penalty for
herself and a $5000 statutory penalty for the unnamed class
members, along with attorneys’ fees and costs. Id.
§ 1692k(a)(2)(A)–(B). The parties eventually entered a joint
motion for class certification and preliminary approval of a
class settlement.1
1 A debt collector’s liability to unnamed class members is “such
amount as the court may allow … not to exceed the lesser of $500,000 or 1
per centum of the net worth of the debt collector.” § 1692k(a)(2)(B). The
$5000 Casillas sought for the unnamed members of the class represents
1% of Madison’s net worth. The attorneys’ fees were the big‐ticket item
and the reason why Madison quickly agreed to settle the case.
4 No. 17‐3162
While that motion was pending, we decided Groshek v.
Time Warner Cable, Inc., 865 F.3d 884 (7th Cir. 2017). There, following
the Supreme Court’s decision in Spokeo, we held that
a plaintiff cannot satisfy the injury‐in‐fact element of standing
simply by alleging that the defendant violated a disclosure
provision of a consumer‐protection statute. Id. at 887. The district
court held that Groshek required it to dismiss Casillas’s
complaint. Casillas had not alleged that Madison’s omission
affected her in any way. And absent an allegation that Madison’s
violation had caused her harm or put her at an appreciable
risk of harm, the district court said, Casillas lacked
standing to sue.
II.
The elements of standing are well settled: the plaintiff
must allege an injury in fact that is traceable to the defendant’s
conduct and redressable by a favorable judicial decision.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). These
requirements are rooted in Article III, which limits a federal
court’s authority to the resolution of “Cases” or “Controversies.”
U.S. CONST. art. III, § 2. If the plaintiff does not claim to
have suffered an injury that the defendant caused and the
court can remedy, there is no case or controversy for the federal
court to resolve.
Casillas’s appeal involves the injury‐in‐fact requirement,
which the Supreme Court has described as the “[f]irst and
foremost” element of standing. Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 103 (1998). An “injury in fact” is “an
invasion of a legally protected interest which is (a) concrete
and particularized and (b) actual or imminent, not conjectural
or hypothetical.” Lujan, 504 U.S. at 560 (citations and quotation
marks omitted). An alleged harm need not be tangible to
No. 17‐3162 5
be “concrete,” but it must be “‘real,’ and not ‘abstract.’”
Spokeo, 136 S. Ct. at 1548. The question here is whether Casillas
has alleged that she suffered—or faced a real risk of suffering—
a concrete harm.2
A.
We begin by emphasizing a basic point: the fact that Congress
has authorized a plaintiff to sue a debt collector who
“fails to comply with any requirement [of the Fair Debt Collection
Practices Act],” 15 U.S.C. § 1692k(a), does not mean
that Casillas has standing. See Spokeo, 136 S. Ct. at 1549 (“Congress’
role in identifying and elevating intangible harms does
not mean that a plaintiff automatically satisfies the injury‐infact
requirement whenever a statute grants a person a statutory
right and purports to authorize that person to sue to vindicate
that right.”). Congress has the power to define intangible
harms as legal injuries for which a plaintiff can seek relief,
see Lujan, 504 U.S. at 578, and it has sought to exercise that
power by enabling debtors to hold debt collectors liable for
statutory violations. But Congress must operate within the
confines of Article III, which “requires a concrete injury even
in the context of a statutory violation.” Spokeo, 136 S. Ct. at
1549. Thus, Casillas cannot demonstrate standing simply by
pointing to Madison’s procedural violation. She must show
that the violation harmed or “presented an ‘appreciable risk
2 Madison has disclaimed any position on this issue. Casillas has interpreted
the settlement agreement to require Madison to support her
standing argument. To avoid being accused of breaching the agreement,
Madison has declined to argue that Casillas lacks standing; its brief offers
a neutral assessment of the case law.
6 No. 17‐3162
of harm’ to the underlying concrete interest that Congress
sought to protect.” Groshek, 865 F.3d at 887 (citation omitted).
The Fair Debt Collection Practices Act seeks to protect
debtors from “the use of abusive, deceptive, and unfair debt
collection practices by many debt collectors.” 15 U.S.C.
§ 1692(a). Section 1692g serves this end by giving debtors a
way to dispute or verify their supposed debts. And by obligating
creditors to tell debtors how to do that, subsections
(a)(4) and (5) reduce the risk that debtors will inadvertently
lose the protections given to those who observe the statutory
requirements.
Casillas did not allege that Madison’s actions harmed or
posed any real risk of harm to her interests under the Act. She
did not allege that she tried to dispute or verify her debt orally
and therefore lost or risked losing the statutory protections.
Indeed, she did not allege that she ever even considered contacting
Madison or that she had any doubt about whether she
owed Harvester Financial Credit Union the stated amount of
money. She complained only that her notice was missing
some information that she did not suggest that she would
ever have used. Any risk of harm was entirely counterfactual:
she was not at any risk of losing her statutory rights because
there was no prospect that she would have tried to exercise
them. Because Madison’s mistake didn’t put Casillas in
harm’s way, it was nothing more than a “bare procedural violation.”
Spokeo, 136 S. Ct. at 1549. Casillas had no more use
for the notice than she would have had for directions accompanying
a product that she had no plans to assemble.
Casillas insists that she suffered the same kind of harm
that we held sufficient to confer standing in Robertson v. Allied
No. 17‐3162 7
Solutions, 902 F.3d 690 (7th Cir. 2018). There, a prospective employer
violated the Fair Credit Reporting Act’s requirement
that it provide the plaintiff with a copy of her background
check before it revoked her offer of employment. Id. at 693.
We held that the plaintiff satisfied the injury‐in‐fact requirement
even though she had not alleged that the report was inaccurate
or that she could have persuaded the defendant to
hire her if she had received it. Id. at 697. Casillas says that she
suffered an injury in fact even though she did not allege that
she would have disputed or verified the debt if the notice had
been complete.
But the plaintiff in Robertson alleged that the defendant
had not only violated the statute but also harmed the concrete
interest that the statute protected. The Fair Credit Reporting
Act required the prospective employer to give the applicant a
copy of the background report before it took an adverse action
so that she would have an opportunity to review and respond
to the information in the report. If there were inaccuracies, she
could identify them; if the negative information was accurate,
she could try to put the bad facts in a better light. Id. at 696–
97. The plaintiff alleged that the employer took that opportunity
from her: “[b]y withholding her background report …
[the employer] limited her ability to review the basis of the
adverse employment decision and impeded her opportunity
to respond.” Id. at 695.
In holding that this allegation satisfied the injury‐in‐fact
requirement, we emphasized that “Article III’s strictures are
met not only when a plaintiff complains of being deprived of
some benefit, but also when a plaintiff complains that she was
deprived of a chance to obtain a benefit.” Id. at 697. The plaintiff
in Robertson made just that complaint. She did not have to
8 No. 17‐3162
allege that she could have retained the job offer if she had access
to the background report. Her lost opportunity to try to
change the defendant’s opinion of her was a sufficiently concrete
injury to confer standing.
Casillas did not allege any comparable lost opportunity.
Nor could she. Unlike the Fair Credit Reporting Act, the provisions
of the Fair Debt Collection Practices Act that Madison
violated do not protect a consumer’s interest in having an opportunity
to review and respond to substantive information.
See id. (“An informational injury can be concrete when the
plaintiff is entitled to receive and review substantive information.”
(emphasis added)). They instead protect a consumer’s
interest in knowing her statutory rights. And in Robertson,
we expressly distinguished a defendant’s obligation to
provide substantive information from its obligation to give
notice of statutory rights. There, the prospective employer
had not only failed to provide the plaintiff with the background
report; it had also failed to provide her with a written
summary of her rights under the Fair Credit Reporting Act.
See id. at 693. We didn’t need to resolve whether the plaintiff
would have had standing if the latter were her only complaint—
so we didn’t. But we observed that “[t]he problem
with that argument is that it describes only a procedural injury.
[The plaintiff] did not indicate how, if the procedures
had properly been followed, she might have persuaded [the
employer] to hire her. With or without written notice of her
rights, [she] would not have become an [] employee.” Id. at
694–95. So too here: receiving a complete notice would not
have changed anything for Casillas.
Casillas’s case is not like Robertson. Instead, as the district
court recognized, it is like those in which we have held that
No. 17‐3162 9
procedural injuries under consumer‐protection statutes are
insufficiently concrete to confer standing. In Groshek, for example,
the plaintiff sued a prospective employer for violating
the Fair Credit Reporting Act. 865 F.3d at 886. The defendant
had complied with the Act by disclosing that it would obtain
a credit report on the applicant. But it violated the Act’s
“stand‐alone” requirement: the statute mandated that the disclosure
appear on its own page, and the defendant had included
other information along with it. Id. at 885–86. We said
that the plaintiff had alleged nothing more than a bare procedural
violation. Id. at 887. He hadn’t claimed that the improper
format had caused him to misunderstand the disclosure,
he hadn’t asserted that he would have withheld consent
if the information had been presented correctly, and he hadn’t
said that he was unaware that the prospective employer
would obtain a credit report on him. Id. Instead, he had “alleged
a statutory violation completely removed from any concrete
harm or appreciable risk of harm.” Id. Under Spokeo, we
explained, that was not enough to satisfy Article III. Id.; see also
Meyers v. Nicolet Restaurant of De Pere, LLC, 843 F.3d 724, 727
(7th Cir. 2016) (holding that the defendant’s failure to truncate
the expiration date from the plaintiff’s credit card receipt did
not put the plaintiff at any material risk of credit card fraud
because he was the only one who ever saw the receipt). Similarly
here, Casillas did not allege that she even read the disclosure,
much less that she relied on it to her detriment.
Casillas’s best case is from the Sixth Circuit, which sees
things differently than we do. In Macy v. GC Services Limited
Partnership, the defendant violated the very same requirements
that Madison did here: it failed to notify the plaintiffs
that they had to dispute their debts in writing to trigger the
protections of the Fair Debt Collection Practices Act. 897 F.3d
10 No. 17‐3162
747, 751 (6th Cir. 2018). Like Casillas, the plaintiffs did not allege
that they tried or had any intention of trying to contact
the debt collector to verify the debt. Id. at 758. Instead, they
claimed that not knowing about the writing requirement
“could lead the least‐sophisticated consumer to waive or otherwise
not properly vindicate her rights under the [Act].” Id.
The Sixth Circuit held that the plaintiffs had alleged a concrete
injury because “[w]ithout the information about the in‐writing
requirement, Plaintiffs were placed at a materially greater
risk of falling victim to ‘abusive debt collection practices.’” Id.
(quoting 15 U.S.C. § 1692(e)).
We disagree. It is certainly true that the omission put those
consumers who sought to dispute the debt at risk of waiving
statutory rights. But it created no risk for the plaintiffs in that
case, who did not try (and, for that matter, expressed no plans
to try) to dispute the debt. It is not enough that the omission
risked harming someone—it must have risked harm to the
plaintiffs.3 As the Supreme Court has explained, “the ‘injury in
fact’ test requires more than an injury to a cognizable interest.
It requires that the party seeking review be himself among the
injured.” Sierra Club v. Morton, 405 U.S. 727, 734–35 (1972). Because
Macy didn’t require the plaintiffs to allege a risk of harm
3 Casillas insists that the “unsophisticated consumer” standard, which
we have applied elsewhere in our precedent, means that standing exists
whenever a debt‐collection letter might have misled a naive consumer.
But the “unsophisticated consumer” standard is a rule for interpreting a
debt‐collection letter to determine whether it is misleading. See Williams v.
OSI Educ. Servs., Inc., 505 F.3d 675, 677–78 (7th Cir. 2007). It is not a rule
permitting those who have not been injured to vindicate the rights of those
who have.
No. 17‐3162 11
to themselves, it is inconsistent with Groshek and Meyers, not
to mention Spokeo itself. We decline to follow it.4
Casillas also seeks help from the Second Circuit, but the
case that she cites is distinguishable. In Strubel v. Comenity
Bank, the plaintiff sued a bank because it provided, and she
signed, a credit card agreement that allegedly omitted several
disclosures required by the Truth in Lending Act. 842 F.3d
181, 185 (2d Cir. 2016). Casillas highlights one omission in
particular: the bank’s failure to notify the plaintiff that “a consumer
dissatisfied with a credit card purchase must contact
the creditor in writing or electronically.” Id. at 190. The Second
Circuit said that a consumer has a concrete interest in
“avoid[ing] the uninformed use of credit,” id. (quoting 15
U.S.C. § 1601(a)); thus, failing to notify the consumer of her
obligations before she began exercising that credit created a
serious risk that she would “unwittingly [] lose the very credit
rights the law affords” her, id. The court held that the plaintiff
had sufficiently alleged an injury in fact.
There is some facial similarity between the omission in
Strubel and the one in Casillas’s case: both disclosures neglected
to tell a consumer that she must exercise her rights in
writing. But as the Second Circuit explained, the disclosure in
Strubel was supposed to come at the beginning of an openended
credit relationship between the plaintiff and the bank;
it explained how she could protect her rights with respect to
4 Because this opinion creates a circuit split, it has been circulated
among all judges of this court in regular active service. See 7th Cir. R. 40(e).
A majority did not favor a rehearing en banc. Chief Judge Wood, joined
by Circuit Judges Rovner and Hamilton, filed a dissent from the denial of
rehearing en banc, which is attached to this opinion.
12 No. 17‐3162
the transactions that she would undertake during that relationship.
Id. at 190–91. The faulty disclosure thus put the
plaintiff at some risk, because any subsequent transaction
might be unsatisfactory, thereby triggering her obligation to
object in writing.
We don’t offer an opinion on the Second Circuit’s conclusion
that the risk of harm to that plaintiff was substantial
enough to be concrete. For present purposes, it is sufficient to
note that Strubel is materially different from this case. When
the plaintiff in Strubel received the incomplete notice, she did
not yet know whether she would ever object to a credit card
purchase. When Casillas received the incomplete notice, she
already knew that she would not dispute her debt. In other
words, unlike Casillas, the plaintiff in Strubel alleged at least
a possibility that the omission would hurt her.5
B.
Casillas has a back‐up argument. She claims that it doesn’t
matter whether she alleged a material risk of harm to her
debt‐verification rights because she suffered another kind of
harm that was sufficiently concrete: an “informational in‐
5 We also note that the Second Circuit did not hold that every omission
caused the plaintiff concrete harm. The bank had also failed to tell her that
she was obligated to provide a creditor with timely notice to stop automatic
payment of a disputed charge. Id. at 191. But the plaintiff’s card did
not offer automatic payment, so the Second Circuit held that the omission
of the disclosure had posed no risk of harm to her. Id. at 191–92. In this
respect, the plaintiff in Strubel was similarly situated to Casillas: the information
that she did not receive was information that she would not have
used. The Second Circuit’s resolution of this claim supports our conclusion
that Casillas lacks standing.
No. 17‐3162 13
jury.” According to Casillas, both the Supreme Court’s precedent
and ours hold that the deprivation of information is itself
a concrete harm. Thus, she says, she did not need to allege
anything more—for example, that she lost or was at risk of
losing her statutory rights because she communicated orally
with Madison. As she sees it, she has standing simply because
Madison failed to provide her all of the information required
by § 1692g(a)(4) and (5); being deprived of information was
itself the injury. But Casillas misunderstands the relevant
precedent.
The seminal cases addressing “informational injury” are
Federal Election Commission v. Akins, 524 U.S. 11 (1998), and
Public Citizen v. U.S. Department of Justice, 491 U.S. 440 (1989).
In Akins, a group of voters sued to compel a political organization
to disclose information that the voters believed the
Federal Election Campaign Act required the organization to
provide. 524 U.S. at 15–16. The Court held that those voters
had alleged an injury in fact sufficient to confer standing—
namely, “their inability to obtain information … that, on [the
voters’] view of the law, the statute requires that [the political
organization] make public.” Id. at 21. In Public Citizen, the
plaintiff sought the disclosure of consultations between the
president and the American Bar Association regarding potential
judicial nominees. When the Department of Justice refused
to provide that information, the plaintiff sued it for violating
the Federal Advisory Committee Act. 491 U.S. at 443,
447. The Court held that those seeking disclosure under that
14 No. 17‐3162
law, like those seeking disclosure under the Freedom of Information
Act, need to show nothing more “than that they
sought and were denied specific agency records.” Id. at 449.6
Casillas treats Akins and Public Citizen as if they settle the
matter of her own standing. But those cases hold that the denial
of information subject to public disclosure is one of the intangible
harms that Congress has the power to make legally cognizable.
See Spokeo, 136 S. Ct. at 1549 (discussing “Congress’
role in identifying and elevating intangible harms”). Publicdisclosure
laws—sometimes called “sunshine laws”—protect
the public’s interest in evaluating matters of concern to the
political community. And denying a request for information
under a sunshine law necessarily implicates that interest. In
Akins, the denial “directly related to voting, the most basic of
political rights.” 524 U.S. at 24–25. In Public Citizen, the denial
hampered the plaintiffs’ ability to “participate more effectively
in the judicial selection process.” 491 U.S. at 449.
Casillas, of course, did not allege that she sought and was
denied information pursuant to a sunshine law. Indeed, she
did not seek information at all. See id. (explaining that a plaintiff
who “is not seeking to compel [the defendant] to provide
him with information” has not suffered the kind of concrete
harm that Akins and Public Citizen recognize). The Fair Debt
6 Since Spokeo was decided, we too have recognized this kind of public‐
disclosure “informational injury” as sufficiently concrete to confer
standing, albeit in the context of a common‐law rather than a statutory
cause of action. In Carlson v. United States, the plaintiff, a historian, asserted
a common‐law right of access to grand‐jury records from a World War II–
era espionage investigation. 837 F.3d 753, 755–56 (7th Cir. 2016). Citing
Akins and Public Citizen, we held that “Carlson’s injury‐in‐fact is the denial
of access to government documents that he has a right to seek.” Id. at 758.
No. 17‐3162 15
Collection Practices Act protects an entirely different interest,
and as we have already said, Casillas alleged no material risk
of harm to that interest. Moreover, while the plaintiffs in the
public‐disclosure cases alleged that the respective defendants
“impaired [their] ability to use [the information] for a substantive
purpose that the statute envisioned,” Robertson, 902
F.3d at 694, Casillas did not allege that she would have used
the information at all.
Casillas’s last line of defense is Havens Realty Corp. v. Coleman,
455 U.S. 363 (1982), which she claims stands for the proposition
that a plaintiff suffers a concrete “informational injury”
any time a defendant violates a statutory disclosure requirement.
There, the plaintiff, who was black, sued the defendant
after it falsely told her that an apartment complex had
no vacancies. The plaintiff had no intention of actually renting
an apartment; she had requested the information because she
suspected that the defendant was engaged in unlawful racial
steering practices. Id. at 368–69. The Court held that she had
alleged a concrete injury under the Fair Housing Act, which
“conferred on all ‘persons’ a legal right to truthful information.”
Id. at 373. Casillas says that the Fair Debt Collection
Practices Act has likewise conferred on all debtors a right to
complete information about their statutory rights. And as in
Havens Realty, Casillas says, it is enough for her to claim that
she was deprived of the information to which she was legally
entitled—even if she wouldn’t use it.
But the bare harm of receiving inaccurate or incomplete
information is not the harm that the plaintiff in Havens Realty
alleged. She claimed the harm of being lied to because of her
race. That was an invasion of the very interest that the Fair
Housing Act protects: freedom from racial discrimination in
16 No. 17‐3162
the pursuit of housing. Id. at 373. Indeed, the statute itself does
not prohibit all misrepresentations about housing availability,
but only those made “because of race” or some other protected
characteristic. 42 U.S.C. § 3604(d). In holding that the
plaintiff could proceed without showing any additional
harm, the Court recognized this kind of racial discrimination
as an intangible injury that Congress has the authority to
identify as legally cognizable. That is obviously neither the
harm Casillas claimed nor the one that the Fair Debt Collection
Practices Act protects against.7
C.
In sum, Casillas alleged nothing more than a bare procedural
violation of the Fair Debt Collection Practices Act. That
is insufficient for purposes of Article III. See Spokeo, 136 S. Ct.
7 In Church v. Accretive Health, Inc., the Eleventh Circuit held that the
Fair Debt Collection Practices Act created a “right to information” that is
analogous to the right protected by Havens Realty. 654 F. App’x 990, 994
(11th Cir. 2016) (“Just as the tester‐plaintiff had alleged injury to her statutorily‐
created right to truthful housing information, so too has Church
alleged injury to her statutorily‐created right to information pursuant to
the [Fair Debt Collection Practices Act].”). It thus held that a bare procedural
violation of the Act’s disclosure requirements is a “concrete injury”
sufficient to establish standing. Id. Church does not give us pause. For one
thing, it is an unpublished opinion that does not establish law even within
the Eleventh Circuit. For another, the debt collector in Church failed to
make any of the disclosures required by § 1692g(a), and we address only
whether Congress has created a bare right to information in § 1692g(a)(4)
and (5). But to the extent that Church generally recognizes a bare procedural
violation of any disclosure requirement as a concrete injury, it is at
odds with Groshek and Robertson. Moreover, for the reasons we discuss
above, it misreads Havens Realty. The Sixth Circuit has expressly rejected
Church, see Lyshe v. Levy, 854 F.3d 855, 859–861 (6th Cir. 2017), and to the
extent that it is inconsistent with our opinion in this case, we do as well.
No. 17‐3162 17
at 1549. And while she asks that she be given the opportunity
to file an amended complaint on remand if we find jurisdiction
lacking, she has not indicated—either here or in the district
court—what facts she would allege to cure the jurisdictional
defect. The district court denied her request for leave to
file an amended complaint, and it was right to do so. See Gonzalez‐
Koeneke v. West, 791 F.3d 801, 807 (7th Cir. 2015) (“[A]
district court does not abuse its discretion by denying a motion
for leave to amend when the plaintiff fails to establish
that the proposed amendment would cure the deficiencies
identified in the earlier complaint.”).
III.
Finally, we note that Casillas has forfeited her separate
claim that the incomplete disclosure violated the Act’s prohibition
on “unfair or unconscionable means to collect or attempt
to collect any debt.” 15 U.S.C. § 1692f. Although her
complaint presented that alleged violation as a separate
claim, it was substantively identical to her § 1692g claim. On
appeal, she has not challenged the district court’s dismissal of
her § 1692f claim, so she has forfeited any challenge to it. See
Sansone v. Brennan, 917 F.3d 975, 983 (7th Cir. 2019).
* * *
Casillas caught the defendant in a mistake, but it was not
one that hurt her. The district court’s judgment is AFFIRMED.
18 No. 17‐3162
WOOD, Chief Judge, with whom ROVNER and HAMILTON,
Circuit Judges, join, dissenting from the denial of en banc consideration.
From 10,000 feet above the ground, the decision in
this case that plaintiff Paula Casillas lacks standing to pursue
her claim under the Fair Debt Collection Practices Act (“the
Act”) against the debt‐collection firm of Madison Avenue Associates
seems sensible enough. Article III demands injury‐infact,
a causal link, and redressability, Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560–61 (1992). As our panel sees this
case, Casillas founders on the first criterion: actual injury. But
the plot thickens when we look more particularly at the violation
she asserted: Madison’s failure to warn her, as required
by 15 U.S.C. § 1692g, that a dispute over the debt or a request
for information about the original creditor is ineffective unless
it is made in writing. The panel regards that omission as a
“bare procedural injury” and thus not one that can support
standing under Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549
(2016). In so concluding, this court has created a conflict with
the Sixth Circuit, which held otherwise in Macy v. GC Servs.
Ltd. P’ship, 897 F.3d 747 (6th Cir. 2018), on materially indistinguishable
facts.
Recognizing that it was opening up this rift, the panel circulated
its opinion to all judges of the Seventh Circuit in regular
active service pursuant to Local Rule 40(e); the question
was whether this is an important enough issue to warrant plenary
consideration by the en banc court. A majority of my colleagues
have answered that question in the negative, thereby
signaling their approval of the panel’s decision. I respectfully
disagree with that assessment. The panel’s opinion will make
it much more difficult for consumers to enforce the protections
against abusive debt collection practices that Congress
conferred in the Act. That alone is troublesome. But what
No. 17‐3162 19
troubles me even more is the light this case shines on the need
for a clear test in this circuit to distinguish between statutory
protections that create, on the one hand, a “bare procedural
injury” that does not support standing, and, on the other
hand, statutory protections for the type of concrete, particularized,
and actual or imminent injury that meet Article III
standards. In my view, the rejection of standing in the case
before us is not so self‐evident that we should resolve it using
the truncated Rule 40(e) process. We should instead have a
full adversarial presentation before the en banc court.
My concerns are both procedural and substantive. I begin
with procedure. In demanding proof of injury, we need to
guard against pushing a merits judgment into the Article III
injury‐in‐fact inquiry; we also need to ensure that we are not,
de facto, demanding fact pleading. The Supreme Court underscored
the standing/merits distinction in Lexmark Int’l, Inc. v.
Static Control Components, Inc., 572 U.S. 118 (2014), in which it
took care to distinguish between an adequate allegation of injury‐
in‐fact for standing purposes and the question whether
that asserted injury fell within the scope of the statute on
which the plaintiff was relying (there, the Lanham Act). Id. at
125–28. It is possible to point to a real injury (and thus pass
the Article III hurdle) but still lose on the merits for failing to
state a claim on which relief can be granted. See FED. R. CIV.
P. 12(b)(6).
We additionally need to be sure that we are not returning
to a fact pleading regime, as it is not required or even acceptable
under Federal Rule of Civil Procedure 8(a)(2) and it is not
specifically required under this Act. We repeatedly have
stressed that the Federal Rules of Civil Procedure use a noticepleading
standard, not a fact‐pleading standard. A complaint
20 No. 17‐3162
need not include allegations about every element of a claim,
as long as it meets the plausibility standard established in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662 (2009). Finally, nothing in Twombly or Iqbal
changed the rule requiring both facts and reasonable inferences
from those facts to be taken in the pleader’s favor at the
earliest stages of the litigation. Thus, for example, a person
may plead that she was injured by a statutory violation. If she
fails to prove that injury in the end, the court should conclude
that she loses on the merits, not that she never had Article III
standing to begin with. The panel opinion takes a step toward
both unnecessary heightened requirements.
From a substantive point of view, as the panel said, plaintiff
Casillas “must show that the violation [of the Act] harmed
or presented an appreciable risk of harm to the underlying
concrete interest that Congress sought to protect.” Ante at 5
(cleaned up), citing Groshek v. Time Warner Cable, Inc., 865 F.3d
884, 887 (7th Cir. 2017). I agree with that statement. Where I
believe the panel is on shakier ground—shaky enough to warrant
full en banc attention—is in its application of that standard.
It is helpful in this connection to look at the statutory provision
that lies at the center of this dispute:
(a) Notice of debt; contents
Within five days after the initial communication
with a consumer in connection with the collection of
any debt, a debt collector shall, unless the following information
is contained in the initial communication or
the consumer has paid the debt, send the consumer a
written notice containing—
No. 17‐3162 21
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is
owed;
(3) a statement that unless the consumer, within
thirty days after receipt of the notice, disputes the validity
of the debt, or any portion thereof, the debt will
be assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt
collector in writing within the thirty‐day period that the
debt, or any portion thereof, is disputed, the debt collector
will obtain verification of the debt or a copy of a
judgment against the consumer and a copy of such verification
or judgment will be mailed to the consumer
by the debt collector; and
(5) a statement that, upon the consumer’s written request
within the thirty‐day period, the debt collector
will provide the consumer with the name and address
of the original creditor, if different from the current
creditor.
15 U.S.C. § 1692g(a) (emphasis added). In particular, we are
concerned with the requirements in section 1692g(a)(4) and
(5) that the consumer must communicate with the debt collector
in writing. Failure to do that is anything but a picky procedural
gaffe. Section 1692g(b) specifies that if the consumer
makes such a written request, “the debt collector shall cease
collection of the debt, or any disputed portion thereof,” until
the debt collector takes the requested steps. The right to be left
alone is a crucial part of the congressionally mandated
scheme to eliminate abusive and unfair tactics from the debtcollection
business.
22 No. 17‐3162
It is also worth noting that people might not appreciate the
need for a written record of their dealings with the debt collector
and thus without a reminder that they must reduce
their concerns to writing, they are likely to forfeit the important
substantive rights the Act provides for them. When
they receive a letter, they are often encouraged to call a 1‐800
telephone number. But someone who responds to a debt‐collection
letter in that way will be put into a “Gotcha!” situation.
No notification in writing equals greatly diminished protection
under the Act.
It is a fair inference from Casillas’s complaint that Madison’s
omissions at a minimum put her in imminent risk of losing
the many protections in the Act that are designed to regulate
the debt‐collection process as it goes forward. The right
to verification, the right to have the name and address of the
original creditor, the right to cessation of debt‐collection activities,
and others, are far from bare procedural protections—
they are protections that serve as the gateway to the Act’s substantive
regime. The Supreme Court confirmed in Spokeo that
intangible harms defined by Congress can qualify as injuryin‐
fact. 136 S. Ct. at 1549. The only type of injury it ruled out
was “a bare procedural violation, divorced from any concrete
harm.” Id. In addition, standing is not limited to cases in
which the plaintiff already has suffered the harm. It may be
“actual or imminent.” Id. at 1548, citing Lujan, 504 U.S. at 560
(emphasis added). Read in the proper light, Casillas’s pleadings
put forward enough to infer an imminent concrete and
particular injury.
The panel in our court reasons that “[b]ecause Madison’s
mistake didn’t put Casillas in harm’s way, it was nothing
more than a ‘bare procedural violation.’” Ante at 6. It said this
No. 17‐3162 23
because Casillas’s pleadings did not spell out the various
types of harm that loomed because of Madison’s failure to
warn her that communications that were not in writing were
a waste of time, and that but for the omitted information,
Casillas would have (or would have considered) using the
statutory procedures to assert her rights. But surely the panel
means to do more than alert future plaintiffs in these cases
that they should plead that they would stand on their rights
and to highlight the imminent loss of numerous substantive
protections afforded under the Act. A simple amendment to
the complaint would solve that problem.
Turning to substance, the key to differentiating between a
“bare” procedural right and a right grounded in substantive
interests lies in the concrete interest that the procedural right
is designed to protect. The Sixth Circuit captured this insight
nicely in Macy, where it said that “to determine whether a
procedural violation manifests injury in fact, a court properly
considers whether Congress conferred the procedural right in
order to protect an individual’s concrete interests.” 897 F.3d
at 754, quoting Strubel v. Comenity Bank, 842 F.3d 181, 189 (2d
Cir. 2016).
The point is simple: what, and whose, interest is the procedural
requirement designed to serve? If the procedural rule
stated that all notices had to be printed on three‐holed paper,
then it might be fair to say that this was a purely administrative
rule that did not implicate consumer rights. Or, as the Supreme
Court observed in Spokeo, if the envelope reflected a
mistaken zip code but the letter reached the consumer despite
that error, there is no possible further injury and one can say
conclusively that no harm resulted from the mistake. Yet some
24 No. 17‐3162
procedures—perhaps many—exist in order to protect underlying
substantive interests rather than for simple administrative
convenience. As the Sixth Circuit pointed out, the Ninth
Circuit’s decision in Spokeo on remand from the Supreme
Court helpfully describes the type of procedural injury that
implicates harm to those concrete substantive interests:
[A]n alleged procedural violation [of a statute] can by
itself manifest concrete injury where Congress conferred
the procedural right to protect a plaintiff’s concrete
interests and where the procedural violation presents
a risk of real harm to that concrete interest.
Macy, 897 F.3d at 755, quoting from Robins v. Spokeo, Inc., 867
F.3d 1108, 1113 (9th Cir. 2017).
By way of analogy, fundamental due process requires notice
and an opportunity to be heard, not for the fun of reading
the notice and listening to one’s own voice, but because, as
Mathews v. Eldridge said, those rights guard against mistakes
when the government is poised to deprive someone of a protected
interest. 424 U.S. 319, 333–35 (1976). But taken to the
extreme, even the right to notice and an opportunity to be
heard might be thought to be “bare” procedural rights, because
neither one assures any particular outcome for the person
involved.
Given the fact that a person who is not told that the objections
under sections 1692g(a)(4) and (5) must be made in writing,
or else they are ineffective to preserve a host of rights under
the Act, there is a strong case to be made that this case falls
on the concrete injury side of the line, not on the “bare procedural”
side. Unlike the mistaken zip code, the likelihood of
ongoing injury from forfeited rights, misunderstandings, and
No. 17‐3162 25
abusive practices is great enough to support standing. Madison
may have substantive defenses that apply to it, and so I
express no view on the ultimate merits of this case. I also express
no view on the appropriateness of class certification. I
dissent, however, from the decision that the question whether
Casillas herself has pleaded enough to pass the injury‐in‐fact
bar for Article III standing is so straightforward, and the Sixth
Circuit’s view so misguided, that we should not hear this case
en banc.
Outcome: Affirmed
Plaintiff's Experts:
Defendant's Experts:
Comments: