Court of Appeals (D.C.) Dismisses FDCPA Claim for Lack of Art. III Standing

In Frank v. Autovest, No. 19-7119, 2020 U.S. App. LEXIS 18082, at *6 (D.C. Cir. June 9, 2020), the Court of Appeals for the D.C. Circuit dismissed for lack of Art. III standing an FDCPA claim purported based on the debt collector’s filing of false affidavits in a collection action.

Frank hasn’t carried that burden. She fails to identify a concrete personal injury traceable to the false representations in the Dunn and Deuman affidavits or the alleged request for contingency fees in the Wagman affidavit. In fact, Frank testified unequivocally that she neither took nor failed to take any action because of these statements. See Frank Dep. 55:17-56:2, 59:17-60:10, 62:13-63:2, J.A. 28-29, 32-33, 35-36. Nor did Frank testify that she was otherwise confused, misled, or harmed in any relevant way during the collection action by the contested affidavits. And although Frank stated that Autovest’s suit caused her stress and inconvenience, see id. at 40:13-22, J.A. 19, she never connected those general harms to the affidavits, see id. at 64:8-65:22, 67:15-68:11, J.A. 37-40. Because Frank was unaffected by the conduct that underlies her FDCPA claims, she lacks Article III standing. Frank’s counterarguments are unconvincing. First, she points to pocketbook injuries in the form of “court costs and attorney’s fees” she incurred “defending Autovest’s lawsuit.” Frank Reply 9. But the record contains no evidence linking these expenses to the alleged statutory violations. Frank testified that her litigation decisions were driven by unfamiliarity with Autovest, not the contents of the Dunn, Deuman, or Wagman affidavits. See Frank Dep. 37:3-13, J.A. 17 (Q: “What made you decide to seek counsel in connection with the collection action?” A: “Because I felt I was being scammed. . . . I never heard of Autovest.”); see also id. at 57:2-8, 68:4-11, 70:13-71:13, J.A. 30, 40, 42-43. In short, there’s no evidence that the contested statements rendered litigation more expensive or onerous.  Second, Frank argues that she suffered an informational injury when Dunn and Deuman “denied [her] access to truthful information.” Frank Reply 10. A plaintiff suffers a cognizable injury if she (1) “has been deprived of information that, on [her] interpretation, a statute requires . . . a third party to disclose,” and (2) “suffers, by being denied access to that information, the type of harm Congress sought to prevent by requiring disclosure.” Friends of Animals v. Jewell , 828 F.3d 989, 992 (D.C. Cir. 2016). Frank cannot satisfy the second requirement. Again, she disclaimed detrimental reliance-or any other harm-based on the misrepresentations in the Dunn and Deuman affidavits. Finally, Frank contends that the alleged FDCPA violations encompass injuries of “the type Congress ‘sought to curb,'” and thus that she need not prove “any additional harm,” such as “[r]eliance on false information.” Frank Reply 9 (quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549, 1550 (2016)). For support, she cites the Act’s private right of action, 15 U.S.C. § 1692k, and Congress’s recognition that “[a]busive debt collection practices contribute to . . . personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy,” id. § 1692(a). . . Nor is it enough for Frank to simply point to the false statements in the Dunn and Deuman affidavits, because “not all inaccuracies cause harm or present any material risk of harm.” Spokeo, 136 S. Ct. at 1550; see also Hancock v. Urban Outfitters, Inc., 830 F.3d 511, 514 (D.C. Cir. 2016) (“[S]ome statutory violations . . . result in no harm, even if they involve[] producing information in a way that violate[s] the law.” (internal quotation marks omitted)). A misrepresentation in a debt collector’s court affidavit-including a false statement about the affiant’s employer-is certainly capable of causing a concrete and particularized injury. But Frank has not demonstrated that these statements had that effect. Without that showing, Frank lacks standing-even if Autovest and Andrews violated the FDCPA. Nevertheless, Frank insists that her subjective response to the contested affidavits is irrelevant. All that matters, in her telling, is the affidavits’ likely effect on a hypothetical unsophisticated debtor. Frank Br. 10; Oral Arg. Tr. 4:18-22. But this argument confuses standing with the merits. Frank correctly identifies the substantive standard that governs her FDCPA claims, which asks whether the debt collector’s statement would confuse or mislead the unsophisticated consumer (or in some courts, the least sophisticated consumer). See Jones v. Dufek, 830 F.3d 523, 525 n.2 (D.C. Cir. 2016) (explaining that although “[t]he term ‘unsophisticated’ is probably more accurate[,] . . . [i]n practice,” the formulations “appear to be the same”). Under this standard, “the specific plaintiff need not prove that she was actually confused or misled, only that the objective,” unsophisticated debtor would be. See Jensen v. Pressler & Pressler, 791 F.3d 413, 419 (3d Cir. 2015); see also Pollard v. Law Office of Mandy L.Spaulding, 766 F.3d 98, 103 (1st Cir. 2014) (“[T]he FDCPA does not require that a plaintiff actually be confused.”). We agree with Frank that the FDCPA creates statutory rights and remedies designed to protect the unsophisticated consumer. Cf. Jones, 830 F.3d at 525. But Congress’s effort to protect plaintiffs cannot relieve them of the requirement to establish Article III standing-including a “concrete and particularized” injury-in-fact. [*11]  Spokeo, 136 S. Ct. at 1548 (explaining that a “particularized” injury is “personal” to the plaintiff). “Broad though Congress’s powers may be to define and create injuries, they cannot override constitutional limits.” Hagy, 882 F.3d at 623. This mismatch between the (objective) merits inquiry and the (subjective) standing inquiry is not unique to the FDCPA, but it can trip up an unsuspecting plaintiff. And case law has not always helped matters. Some courts have characterized the Act as “enlist[ing] the efforts of sophisticated consumers . . . as ‘private attorneys general’ to aid their less sophisticated counterparts, who are unlikely themselves to bring suit under the Act, but who are assumed by the Act to benefit from the deterrent effect of civil actions brought by others.” Jensen, 791 F.3d at 419 (quoting Jacobson v. Healthcare Fin. Servs., Inc., 516 F.3d 85, 91 (2d Cir. 2008)). Read too broadly, this view of the FDCPA is incompatible with the Supreme Court’s standing jurisprudence. See Lujan, 504 U.S. at 577 (explaining that “a subclass of citizens who suffer no distinctive concrete harm” may not sue to enforce statutory rights). Article III’s case-or-controversy requirement remains in effect regardless of the doctrinal test that courts apply to FDCPA claims. And as decisions by our sister circuits indicate, the Act is rife with procedural [*12]  requirements and substantive prohibitions that do not necessarily trigger concrete injuries when violated. See Casillas v. Madison Ave. Assocs.,Inc., 926 F.3d 329, 339 (7th Cir. 2019) (concluding that a debt collector’s failure to inform the debtor that a challenge to the debt under section 1692g(a) must be “in writing” did not cause concrete harm); Hagy, 882 F.3d at 622 (holding that the plaintiffs lacked standing to bring a claim under section 1692e(11) for failure to disclose debt-collector status because they did not show that “the non-disclosure created a risk of double payment, caused anxiety, or led to any other concrete harm”). After Spokeo, a plaintiff must demonstrate a subjective- that is, an actual-personal injury for standing even when his merits argument turns on the perspective of an objective, unsophisticated consumer. On the margin, this rule might hamper the deterrence purpose of the Act by reducing the number of viable civil suits. Still, an FDCPA plaintiff possesses multiple avenues to standing, see Hagy, 822 F.3d at 622, and he need not suffer the same harm that underlies his statutory claim. For instance, a plaintiff could submit evidence of investigatory injuries-e.g., resources spent uncovering or confirming the truth-rather than outright deception. In short, there’s ample room for consumers of all sorts and levels of sophistication to bring FDCPA suits, but under Article III, they must be proper plaintiffs.