Renetrice Pierre v. Midland Credit Management ( 2022 )

In the
United States Court of Appeals
for the Seventh Circuit
____________________
Nos. 19-2993 & 19-3109
RENETRICE R. PIERRE, individually and on
behalf of all others similarly situated,
Plaintiff-Appellee/
Cross-Appellant,
v.
MIDLAND CREDIT MANAGEMENT, INC.,
Defendant-Appellant/
Cross-Appellee.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16 C 2895 — Harry D. Leinenweber, Judge.
____________________
On Petition for Rehearing and Rehearing En Banc
____________________
DECIDED JUNE 8, 2022
____________________
Before SYKES, Chief Judge, and EASTERBROOK, KANNE,
ROVNER, WOOD, HAMILTON, BRENNAN, SCUDDER, ST. EVE,
KIRSCH, and JACKSON-AKIWUMI, Circuit Judges.
2 Nos. 19-2993 & 19-3109
SYKES, Chief Judge. On consideration of the petition for
rehearing and for rehearing en banc filed on April 15, 2022, a
majority of judges in active service voted to deny the peti-
tion for rehearing en banc. Judges Rovner, Wood, Hamilton
and Jackson-Akiwumi voted to grant the petition for rehear-
ing en banc. Accordingly, the petition for rehearing and
rehearing en banc is DENIED.
Nos. 19-2993 & 19-3109 3
HAMILTON, Circuit Judge, joined by ROVNER, WOOD, and
JACKSON-AKIWUMI, Circuit Judges, dissenting. I respectfully
dissent from the denial of rehearing en banc. This case
presents an important question on the extent of Congress’s
power under the Constitution to regulate interstate
commerce—its power to authorize private civil remedies for
statutory violations that cause intangible but concrete
injuries, including emotional distress, fear, and confusion.
Defendant Midland Credit Management violated the
rights of plaintiff Pierre and a plaintiff class under the Fair
Debt Collection Practices Act in trying to collect so-called
“zombie” debts—debts on which Midland knew the statute
of limitations had expired. See Pantoja v. Portfolio Recovery
Associates, LLC, 852 F.3d 679 (7th Cir. 2017) (addressing merits
of such claims). Midland tried to revive a debt that had been
the subject of a suit against Pierre years earlier, ending in
dismissal. Pierre was not fooled into paying on the debt, but
she testified that Midland’s attempt to revive the debt had
caused her emotional distress and anxiety. Anyone who has
experienced financial insecurity can easily understand her
injuries. A jury awarded Pierre and the class statutory
damages of $350,000. The panel reversed, however, finding
that Pierre lacked standing even to bring this suit.
The constitutional issue here is whether a plaintiff who
proves a violation of the Act in attempting to collect a debt
from her can show standing based on injuries that are intan-
gible but quite real. Such injuries may include emotional dis-
tress, stress, anxiety, and the distress that can be caused by
unlawful attempts to collect consumer debts.
The panel majority said no. Its key holding: “Psychologi-
cal states induced by a debt collector’s letter … fall short.”
4 Nos. 19-2993 & 19-3109
Pierre v. Midland Credit Management, Inc., 29 F.4th 934, 939 (7th
Cir. 2022). That holding, which followed several recent deci-
sions of this court, has strayed far from the Supreme Court’s
more nuanced guidance on the power of Congress to author-
ize standing for statutory violations in Spokeo, Inc. v. Robins,
578 U.S. 330 (2016), and TransUnion LLC v. Ramirez, 141 S. Ct.
2190 (2021).
I. Spokeo and TransUnion
The Pierre majority opinion and the Seventh Circuit cases
it followed have erred by painting with too broad a brush.
They have failed to give the judgments of Congress the “due
respect” the Supreme Court called for in Spokeo and
TransUnion. They have overlooked close historical parallels—
from both common law and constitutional law—for remedies
for intangible harms caused by many violations of the FDCPA
and other consumer-protection statutes.
In Spokeo, the defendant was a consumer reporting agency
that generated profiles of individual consumers. Plaintiff Rob-
ins discovered that his Spokeo profile contained inaccurate in-
formation. He sued for an allegedly willful violation of the
Fair Credit Reporting Act’s requirement to use reasonable
procedures to assure maximum possible accuracy of such in-
formation. The Supreme Court held that the alleged statutory
violation regarding his information was not enough, by itself,
to establish the concrete and particularized injury in fact
needed for constitutional standing. 578 U.S. at 342–43. The
Court remanded for further consideration of standing.
Along the way, the Court said that a plaintiff must allege
and prove a “concrete” injury, but the Court also made clear
that an intangible injury could be concrete for purposes of
Nos. 19-2993 & 19-3109 5
standing. 578 U.S. at 340–41. The key question in Spokeo and
in cases like Pierre’s is when an intangible injury is sufficiently
concrete. To answer that, Spokeo teaches, “both history and the
judgment of Congress play important roles.” Id. at 340. The
Supreme Court told courts to consider “whether an alleged
intangible harm has a close relationship to a harm that has
traditionally been regarded as providing a basis for a lawsuit
in English or American courts,” and to treat the judgment of
Congress as “instructive and important.” Id. at 341.
Spokeo also cited Lujan v. Defenders of Wildlife, 504 U.S. 555,
578 (1992), for the proposition that Congress may elevate to
the status of legally cognizable injuries harms that were pre-
viously not adequate to support a case. The Spokeo Court con-
cluded that a violation of the FCRA’s procedural require-
ments could result in cognizable harm, but memorably
warned that a “bare procedural violation,” such as a report of
an incorrect zip code, would not be enough by itself to estab-
lish concrete harm. 578 U.S. at 342. 1
Spokeo left plenty of room for debate about standing under
consumer-protection statutes. The Court offered more guid-
ance in TransUnion LLC v. Ramirez, another FCRA case. A
1 On remand in Spokeo, the Ninth Circuit found that the plaintiff had
alleged a sufficiently concrete harm to sue. Giving deference to the judg-
ment of Congress, the Ninth Circuit found that dissemination of false in-
formation in consumer reports posed a risk of serious harm and that con-
sumers’ interests in accurate information resembled reputational and pri-
vacy interests long protected under tort law. 867 F.3d 1108, 1113–15 (9th
Cir. 2017). The court also concluded that the alleged inaccuracies regard-
ing plaintiff Robins were neither harmless nor trivial, like the Supreme
Court’s hypothetical wrong zip code. Id. at 1116–17. The Supreme Court
denied further review in the case. 138 S. Ct. 931 (2018).
6 Nos. 19-2993 & 19-3109
credit reporting agency offered to tell creditors whether par-
ticular consumers might be on a government list of suspected
terrorists, drug-traffickers, and others with whom business
dealings are generally unlawful. Lots of law-abiding Ameri-
cans share first and last names with people on the govern-
ment’s list, and TransUnion identified such people as “poten-
tial matches” for the terrorist list. When plaintiff Ramirez
tried to buy a car, his name turned up as a potential match.
The dealer refused to sell him the car. Ramirez sued TransUn-
ion on behalf of a class for failing to use reasonable measures
to ensure that it distributed accurate information.
As a matter of statute, all class members in TransUnion had
viable FCRA claims. The issue for the Court was standing un-
der Article III. As in Spokeo, the key question was whether the
intangible harms claimed by the class members were suffi-
ciently concrete. The Court echoed Spokeo in saying that intan-
gible harms close to those traditionally recognized in the law
were sufficient, including the loss of a constitutional right. 141
S. Ct. at 2204 (citing freedoms of speech and religion). The
Court also repeated that courts must afford “due respect” to
Congress’s decision to create a private right of action for stat-
utory violations, though without giving Congress a blank
check to “transform something that is not remotely harmful
into something that is.” Id. at 2204–05 (citation omitted).
The TransUnion Court gave more specific meaning to this
abstract guidance in the different ways it actually treated the
two subclasses. For one subclass, TransUnion files listed them
as “potential matches” for the suspected terrorist list, but
TransUnion had never provided that information to any po-
tential creditors during the relevant period. Id. at 2209. The
Court held that those class members lacked standing. The
Nos. 19-2993 & 19-3109 7
undisclosed information had not caused them any harm at all.
It was as if, the Court said, a person had written a defamatory
letter and then left it in a desk drawer. Id. at 2210. The plain-
tiffs argued that the false information in those files put them
at serious risk of having the false information disseminated to
creditors in the future, but the Court rejected that theory for
standing, at least for a damages claim. Id.
The other subclass in TransUnion presented an easier ques-
tion. The misleading information about them was actually
sent to third parties. The Court agreed unanimously that
those plaintiffs had standing. See 141 S. Ct. at 2208–09. The
majority compared the misleading credit reports to the tort of
defamation. The Court rejected TransUnion’s attempt to dis-
tinguish its violations from defamation by arguing that
merely “misleading” information was not literally false. The
Court explained: “In looking to whether a plaintiff’s asserted
harm has a ‘close relationship’ to a harm traditionally recog-
nized as a basis for a lawsuit in American courts, we do not
require an exact duplicate.” Id. at 2209. The Court did not in-
sist, however, on proof that members of that subclass had lost
out on particular loans or purchases. Id.
II. Intangible but Concrete Injuries Under the FDCPA
Plaintiff Pierre’s claim should easily satisfy the Supreme
Court’s standing requirements. She proved all elements of an
FDCPA claim for a deceptive and unfair practice. She also sat-
isfied the constitutional requirements of Spokeo and TransUn-
ion by offering evidence of harms that, first, lie close to the
heart of the protection Congress reasonably offered consumer
debtors in the FDCPA, and second, bear close relationships to
harms long recognized under the common law and constitu-
tional law.
8 Nos. 19-2993 & 19-3109
A. The Judgment of Congress
In enacting the FDCPA, Congress wanted to provide a
remedy for consumers subjected to abusive practices. Those
included:
obscene or profane language, threats of
violence, telephone calls at unreasonable hours,
misrepresentation of a consumer's legal rights,
disclosing a consumer’s personal affairs to
friends, neighbors, or an employer, obtaining
information about a consumer through false
pretense, impersonating public officials and
attorneys, and simulating legal process.
S. Rep. No. 95-382 at 2, as reprinted in 1977 U.S.C.C.A.N. 1695,
1696. In the statutory findings, Congress said abusive
practices contributed to personal bankruptcies, marital
instability, job losses, and invasions of privacy. 15 U.S.C.
§ 1692(a). The statutory reference to marital instability and the
prohibitions on using threats, obscene language, and
harassing calls, see § 1692d, show that Congress recognized
how such abusive practices could upset the lives of those
targeted by them. See Demarais v. Gurstel Chargo, P.A., 869
F.3d 685, 692 (8th Cir. 2017) (making this point in finding
FDCPA standing based on mental distress resulting from
similar attempt to collect out-of-statute “zombie” debt).
The emotional distress, confusion, and anxiety suffered by
Pierre in response to this zombie debt collection effort fit well
within the harms that would be expected from many of the
abusive practices. That’s true regardless of whether the debtor
actually made a payment or took some other tangible action
in response to them. Standing for Pierre thus fits well within
Nos. 19-2993 & 19-3109 9
Congress’s judgments about actionable harms. As the
Supreme Court said in Spokeo, Congress may “elevat[e] to the
status of legally cognizable injuries concrete, de facto injuries
that were previously inadequate in law.” 578 U.S. at 341
(alteration in original), quoting Lujan, 504 U.S. at 578.
Judge Ripple made this point in his concurring opinion in
Markakos v. Medicredit, Inc., 997 F.3d 778 (7th Cir. 2021), high-
lighting Congress’s judgment about the need to protect con-
sumers from abusive debt collection practices and its choice
to rely on private enforcement:
To say that there is no injury in this economy
when a person receives a dunning letter demand-
ing money that is not owed not only ignores the re-
alities of everyday life, it also ignores the findings of
Congress and constitutes a direct affront to a con-
gressional prerogative at the core of the legislative
function. The court’s failure to recognize the in-
jury that Congress saw and addressed simply
testifies to our failure to appreciate how the peo-
ple we judicially govern live, or more precisely,
it testifies to our failure to defer to the congres-
sional appreciation as to how our fellow citizens
live. The Supreme Court’s holding in Spokeo
provides no justification for our embarking on
such a precarious course. I fear we have given
Congress’s judgment too little attention and
erected an unnecessary constitutional barrier to
enforcement of the FDCPA.
Id. at 785 (emphasis added). I agree. And the Supreme Court’s
later decision in TransUnion further reinforced that need for
substantial deference to the judgment of Congress.
10 Nos. 19-2993 & 19-3109
B. Historical Guides from Common Law and Constitutional
Law
Defendant Midland’s violation of the FDCPA and the in-
tangible but real harms that Pierre suffered also bear close re-
lationships to those recognized in both the common law and
constitutional law. Those close relationships, as the Court
taught in Spokeo and TransUnion, offer strong support for rec-
ognizing Pierre’s standing here.
1. Common-Law Parallels
Start with the torts of intentional or reckless infliction of
emotional distress. “One who by extreme and outrageous
conduct intentionally or recklessly causes severe emotional
distress to another is subject to liability for such emotional
distress….” Restatement (Second) of Torts § 46(1) (Am. L.
Inst. 1965). Such tort cases often pose issues about what con-
duct is “extreme and outrageous” and when emotional dis-
tress is sufficiently severe. In enacting the FDCPA and its rem-
edy for statutory damages, though, Congress itself outlawed
the very conduct that harmed Pierre.
The emotional distress, anxiety, fear, and stress she expe-
rienced were foreseeable, even intended, responses to defend-
ant’s attempt to collect the zombie debt. Congress told the fed-
eral courts to authorize damages for such harms. That choice
is well within Congress’s legislative power over interstate
commerce to go beyond the common law. Markakos, 997 F.3d
at 785 (Ripple, J., concurring in judgment); Demarais, 869 F.3d
at 692 (attempt to collect debt not owed caused real and fore-
seeable mental distress familiar to common law).
The torts of defamation and invasion of privacy and rem-
edies for them also bear close relationships to the FDCPA and
Nos. 19-2993 & 19-3109 11
its private right of action. As noted, TransUnion invoked the
parallel to defamation to find standing for the plaintiffs whose
potential listings were sent to potential creditors. 141 S. Ct. at
2209; accord, Ewing v. MED-1 Solutions, LLC, 24 F.4th 1146,
1151–54 (7th Cir. 2022) (FDCPA plaintiffs whose debts were
reported without noting they were disputed had standing
based on publication of false or misleading information to
third parties).
Other FDCPA violations parallel the tort of invasion of pri-
vacy, including its branches for intrusion upon seclusion, un-
reasonable publicity given to a person’s private life, and pub-
licity that places a person in a false light before the public,
which rarely involve tangible injuries. See Restatement (Sec-
ond) of Torts § 652A et seq. (Am. L. Inst. 1977); Lupia v. Medi-
credit, Inc., 8 F.4th 1184, 1191–93 (10th Cir. 2021) (FDCPA
plaintiff had standing based on harms akin to those caused by
invasion of privacy in form of intrusion upon seclusion); St.
Pierre v. Retrieval-Masters Creditors Bureau, Inc., 898 F.3d 351,
357 (3d Cir. 2018) (FDCPA plaintiff had standing for harm
akin to unreasonable publicity of private life branch of inva-
sion of privacy). In fact, the Restatement (Second) teaches that
a person who has established an invasion of privacy is entitled
to recover damages for, among other things, “his mental dis-
tress proved to have been suffered if it is of a kind that nor-
mally results from such an invasion.” § 652H(b).
Thus, rather than rejecting standing based on “psycholog-
ical states” induced by FDCPA violations, we should recog-
nize that, more generally, the common law has long author-
ized damages for emotional distress in a wide range of cases
lacking tangible injury. Section 905 of the Restatement (Sec-
ond) of Torts (Am. L. Inst. 1979) states that compensatory
12 Nos. 19-2993 & 19-3109
damages may be awarded for emotional distress. The com-
ments explain that the principal element of damages in ac-
tions for assault and defamation, among other torts, is “fre-
quently the disagreeable emotion experienced by the plain-
tiff,” § 905 cmt. c, and that the “mental distress known as hu-
miliation” may also support a damages award, cmt. d. Section
924 states: “One whose interests of personality have been tor-
tiously invaded is entitled to recover damages for past or pro-
spective (a) bodily harm and emotional distress….” Comment
a explains that this rule reaches assault (where no physical
contact is made) and insulting conduct amounting to a tort.
See also § 623 (emotional distress damages for defamation);
Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974) (“[T]he more
customary types of actual harm inflicted by defamatory false-
hood include impairment of reputation and standing in the
community, personal humiliation, and mental anguish and
suffering.”).
Consider also the difference between the torts of assault
and battery with the question of standing in mind. What harm
is suffered in an assault that stops short of battery? Not phys-
ical harm, but fear and emotional distress. Does that mean a
victim of an assault lacks Article III standing to sue in federal
court? Of course not. The fear and emotional distress are suf-
ficiently concrete and particularized to support standing. The
same should be true here, where Congress made a policy
choice to offer vulnerable consumers this protection from
abusive and deceptive bullying by debt collectors.
Or consider claims for medical monitoring damages in
cases where a person has been exposed to a dangerous toxin
but has not yet shown symptoms of disease. The common law
in many states has evolved to authorize such damages to
Nos. 19-2993 & 19-3109 13
protect plaintiffs from future harm and to address the anxiety
and distress that such exposure can foreseeably cause. See,
e.g., Bower v. Westinghouse Electric Corp., 522 S.E.2d 424 (W. Va.
1999) (recognizing claim and collecting cases, including Bour-
geois v. A.P. Green Industries, Inc., 716 So. 2d 355 (La. 1998), and
In re Paoli R.R. Yard PCB Litig., 916 F.2d 829 (3d Cir. 1990)).
Further common-law examples abound. To be sure, there
has been plenty of room for debate about the requirements for
emotional distress damages under the common law, espe-
cially in cases alleging only negligence. See, e.g., Metro-North
Commuter R.R. Co. v. Buckley, 521 U.S. 424, 429–38 (1997) (ad-
dressing scope of statutory remedies under Federal Employ-
ers’ Liability Act for negligent infliction of emotional distress
and for medical monitoring based on negligent exposure to
asbestos). Those debates do not undermine Article III stand-
ing here.
The common law has been much more receptive to such
damages in cases of intentional or reckless conduct. Pierre’s
claim here is for intentional conduct that foreseeably inflicted
emotional distress and anxiety upon her. And in any event,
Spokeo and TransUnion make clear that standing under federal
statutes is not limited to the precise boundaries of the com-
mon law. The “close relationship” does not require “an exact
duplicate.” TransUnion, 141 S. Ct. at 2209. It would be extraor-
dinary to claim that the Constitution restricts Congress’s leg-
islative powers to require congruence with the common law.
And Spokeo and TransUnion both rejected that position.
Spokeo and TransUnion made clear that not every FDCPA
violation can support standing. The Act outlaws some “bare
procedural violations” that may not cause injury in fact. But a
remedy for defendant’s effort to pressure or trick Pierre into
14 Nos. 19-2993 & 19-3109
paying the zombie debt, inducing fear, anxiety, confusion,
and more general emotional distress, fits comfortably with the
common law of torts.
2. Constitutional Law Parallels
The “history and tradition” relevant to standing for intan-
gible injuries under federal statutes are not limited to the com-
mon law. TransUnion, 141 S. Ct. at 2204. The Constitution pro-
tects people from many wrongs that may cause intangible in-
juries, including emotional distress and humiliation. A plain-
tiff may not recover damages for the “abstract” value of a con-
stitutional right, Memphis Comm. School Dist. v. Stachura, 477
U.S. 299, 308 (1986), but may recover for intangible emotional
distress and humiliation caused by constitutional violations.
Our circuit’s pattern jury instructions for § 1983 cases re-
flect this settled law. They tell jurors to consider mental and
emotional pain and suffering. Federal Civil Jury Instructions
of the Seventh Circuit § 7.26 (2017). Such damages for intan-
gible injuries can be appropriate for denials of free speech,
free exercise of religion, or due process of law. See Carey v.
Piphus, 435 U.S. 247, 264 (1978) (mental and emotional distress
constitute compensable injury in § 1983 cases); Young v. Lane,
922 F.2d 370, 374 (7th Cir. 1991) (recognizing prisoners could
recover damages for denial of free exercise rights if they could
show violations of clearly established law); Williams v. Lane,
851 F.2d 867, 876 (7th Cir. 1988) (same).
Damages for what the panel majority calls “psychological
states” are also available for intrusions on privacy in violation
of the Fourth Amendment and for threats of clearly excessive
force under the Fourth Amendment. E.g., Baird v. Renbarger,
576 F.3d 340 (7th Cir. 2009) (affirming denial of qualified
Nos. 19-2993 & 19-3109 15
immunity where officer pointed submachine gun at persons
who posed no danger at site of search involving suspected
non-violent crime). Humiliating strip searches of prisoners,
detainees, and suspects may violate Fourth and/or Eighth
Amendment rights under some circumstances, and damages
for the intangible humiliation and emotional distress can be
appropriate. E.g., Henry v. Hulett, 969 F.3d 769 (7th Cir. 2020)
(en banc).
Or consider how nominal damages affect standing in
constitutional cases. The Supreme Court held in Uzuegbunam
v. Preczewski, 141 S. Ct. 792 (2021), that where the plaintiff
proved completed violations of his First Amendment rights,
his request for only nominal damages—without proof of
compensatory damages—was sufficient to satisfy the
redressability element of Article III standing. The Court made
clear that the plaintiff still needed to show an actual injury in
the form of a completed violation of his rights, id. at 802 n.*,
but it’s difficult to reconcile our court’s approach to standing
in Pierre’s case with Uzuegbunam. If standing had been
lacking in Uzuegbunam for lack of injury, the Court would
have been obliged to order dismissal for lack of standing,
regardless of the redressability element.
Uzuegbunam provides a good survey of the history and im-
portance of nominal damage awards in the common law and
constitutional law going back to the earliest years of the Re-
public and in English courts. See id. at 798–800, discussing,
e.g., Webb v. Portland Mfg. Co., 29 F. Cas. 506, 508–09 (C.C. Me.
1838) (Story, J.). The general rule is that nominal damages are
available and even presumed where a plaintiff proves a vio-
lation of her legal rights. If that’s correct under both the com-
mon law and constitutional law, it’s also difficult to see why
16 Nos. 19-2993 & 19-3109
Congress cannot authorize a modest damages remedy under
the FDCPA where a plaintiff’s statutory rights are violated. 2
Under the teachings of Spokeo and TransUnion—giving
“due respect” for Congress’s judgment and recognizing that
Pierre’s statutory claim and intangible injuries fit closely in
legal history and tradition—Pierre should have standing.
Article III, Spokeo, and TransUnion do not prohibit standing
for this statutory claim. The FDCPA civil action is
constitutional as applied to a host of violations that cause
intangible but real injuries like Pierre’s.
2 One path toward more specific guidance for lower federal courts for
these problems would be to embrace the distinction between private
rights and public rights, at least as regards consumer-protection statutes.
Justice Thomas endorsed this analysis in his concurrence in Spokeo, 578
U.S. at 344–46, and his dissent in TransUnion: “At the time of the founding,
whether a court possessed judicial power over an action with no showing
of actual damages depended on whether the plaintiff sought to enforce a
right held privately by an individual or a duty owed broadly to the com-
munity.” 141 S. Ct. at 2217. The line between private and public rights
could go a long way to reconcile Supreme Court precedents on nominal
damages with its recent opinions on standing for intangible injuries. The
distinction also offers a clear and manageable line between standing in
cases like this one, where Pierre asserts a private right under the statute,
and the “universal” standing feared by the Pierre majority and the cases it
followed. See also Sierra v. Hallandale Beach, 996 F.3d 1110, 1138–39 (11th
Cir. 2021) (Newsom, J., concurring); William Baude, Standing in the Shadow
of Congress, 2016 Sup. Ct. Rev. 197, 227–31; John G. Roberts, Jr., Article III
Limits on Statutory Standing, 42 Duke L.J. 1219, 1226–30 (1993) (recognizing
that Congress may expand standing to full extent permitted by Article III
but may not dispense with requirement of injury in fact, and arguing fur-
ther that standing is “an apolitical limitation on judicial power,” applying
to both liberal and conservative causes).
Nos. 19-2993 & 19-3109 17
More fundamental, the idea that intangible harms like
emotional distress are not sufficient to support Article III
standing is simply wrong—especially where Congress has
authorized such claims under a federal statute. We should
have granted rehearing en banc because our circuit’s law on
this issue is out of step with the Supreme Court and places us
at the far, most restrictive, end of a range of approaches by
different circuits. See Pierre, 29 F.4th at 953–55 (Hamilton, J.,
dissenting). Our recent cases have restricted standing so
sharply that we may be close to a tipping point, leaving at
least the FDCPA largely neutered in the three states of the
Seventh Circuit. Since this court has chosen to deny rehearing
en banc and to continue on this course, however, the Supreme
Court may need to revisit the subject of Congress’s power to
authorize standing for such intangible but real and concrete
injuries under its statutes regulating commerce.
III. Case-Specific Arguments
The Answer to the petition for rehearing asserted several
case-specific arguments for denying the petition. These argu-
ments have little merit.
First, the Answer asserted that this case is really about fact-
specific application of settled legal principles. Not at all. The
Pierre opinion summarized recent cases and stated the rule
broadly: “psychological states,” including emotional distress,
cannot support standing under the FDCPA. 29 F.4th at 939.
That statement of the law is not “settled,” and it leaves no
room for factual nuance and distinctions that would let other
18 Nos. 19-2993 & 19-3109
plaintiffs pursue claims based on more severe emotional dis-
tress or worse invasions of privacy, for example. 3
Second, the Answer argued that plaintiff Pierre’s evidence
of emotional distress in her deposition and trial testimony
was not specific enough to support standing. On the contrary,
Pierre testified in detail about the dunning letter and her re-
action. The prospect of a revived $7,000 debt threatened her
with financial catastrophe. She was confused and afraid that
she might be sued again on this debt. (An earlier suit on the
same debt had been dismissed years earlier.) Pierre described
her “emotional duress,” and she was anxious about the pro-
spect of the cost and hassle of more litigation. She was afraid
of repercussions if she did not answer the letter and if she did
not accept one of the settlement options. She was also afraid
that her credit rating would be hurt. Pierre sought out a law-
yer. She had read the statement that Midland would not sue
3 That is exactly how Pierre and its supporting cases are being argued
and applied in the district courts. District judges are reading Pierre and its
supporting cases that broadly. See, e.g., Tataru v. RGS Financial, Inc., 2021
WL 1614517 (N.D. Ill. 2021) (Tharp, J.); Marcano v. Nationwide Credit &
Collection, Inc., 2021 WL 4523218 (N.D. Ill. 2021) (Aspen, J.); Schumacher v.
Merchants’ Credit Guide Co., 2021 WL 4080765 (N.D. Ill. 2021) (Lee, J.);
Gordon v. Collection Professionals, Inc., 2021 WL 6108916 (C.D. Ill. 2021)
(Bruce, J.); Endres v. UHG I LLC, 2022 WL 462005 (W.D. Wis. 2022) (Conley,
J.); Choice v. Unifund CCR, LLC, 2021 WL 2399984 (N.D. Ill. 2021) (Coleman,
J.); Dixon v. Jefferson Capital Systems, LLC, 2021 WL 5908431 (S.D. Ind. 2021)
(Magnus-Stinson, J.); Patni v. Resurgent Capital Services, L.P., 2022 WL
1567069 (N.D. Ill. 2022) (Guzmán, J.) (citing Pierre); Masnak v. Optio
Solutions, LLC, 2022 WL 1102020 (E.D. Wis. 2022) (Stadtmueller, J.) (citing
Pierre). In several of these cases, and others, the broad arguments against
standing based on emotional distress or confusion or other psychological
states were made successfully by the same lawyers who told us in the
Answer that the Pierre holding on standing is fact-specific.
Nos. 19-2993 & 19-3109 19
her on the debt, but she worried that Midland could refer the
debt to another party who would sue her or hurt her credit
rating. Her testimony on these topics appears in her deposi-
tion at pages 67, 79, 82, 84, 104, 108–09, 114–17, and 141. At
trial, she described her surprise, confusion, and distress when
she received the letter claiming she owed more than twice as
much on a debt that she thought she had successfully dis-
puted years earlier. Dkt. 262 at 52–73.
More fundamental to the issue of rehearing en banc,
though, the Pierre majority stated the rule in broad terms.
Emotional distress and other “psychological states” can never
support standing under the FDCPA. No additional specificity
from Pierre could overcome the panel’s categorical bar. And
again, that is how district courts are understanding and ap-
plying Pierre and our other recent decisions.
Finally, showing the greatest chutzpah, the Answer argues
that Pierre waived reliance on common law analogs, theories,
and cases raised for the first time in her petition for rehearing.
The Pierre majority, however, based its denial of standing en-
tirely on cases issued after oral argument in the case, includ-
ing the majority’s view of the 2021 TransUnion decision. Pierre
was entitled to respond to the new precedents and reasons
offered in the majority opinion. The assertions of waiver are
baseless.
Plaintiff Pierre suffered just the sorts of intangible but real
injuries—including emotional distress, anxiety, fear, and
confusion—that Congress foresaw and for which it enacted
statutory remedies. We should have granted rehearing en
banc and recognized her standing to pursue those remedies.