Jennifer R. Larkin v. Finance System of Green Bay

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 18-3582 & 19-1557
JENNIFER R. LARKIN
and DOREAN A. SANDRI,
Plaintiffs-Appellants,
v.
FINANCE SYSTEM OF GREEN BAY, INC.,
Defendant-Appellee.
____________________
Appeals from the United States District Court
for the Eastern District of Wisconsin.
Nos. 18-C-496 & 18-C-1208 — William C. Griesbach, Judge.
____________________
ARGUED MARCH 30, 2020 — DECIDED DECEMBER 14, 2020
____________________
Before SYKES, Chief Judge, and EASTERBROOK and ROVNER,
Circuit Judges.
SYKES, Chief Judge. These consolidated appeals involve
materially identical claims under the Fair Debt Collection
Practices Act, 15 U.S.C. §§ 1692 et seq. Jennifer Larkin and
Dorean Sandri received collection letters from Finance
System of Green Bay, Inc., seeking payment of medical
2 Nos. 18-3582 & 19-1557
debts. Represented by the same law firm, Larkin and Sandri
filed separate class-action lawsuits claiming that the letters
violated §§ 1692e and 1692f of the Act, which prohibit the
use of false, deceptive, or misleading representations, or
otherwise unfair or unconscionable methods to collect a
debt. The district court dismissed both complaints for failure
to state a claim.
We affirm, but on different grounds. A threshold ques-
tion concerns standing to sue. Larkin and Sandri accuse
Finance System of violating §§ 1692e and 1692f, but they
have not alleged any injury from the statutory violations.
Under Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), and
Casillas v. Madison Avenue Associates, Inc., 926 F.3d 329 (7th
Cir. 2019), both cases should have been dismissed for lack of
standing.
I. Background
Jennifer Larkin incurred a debt to Green Bay Radiology
SC, which hired Finance System to collect it. On March 28,
2017, Finance System sent a standard dunning letter to
Larkin. Along with information about the debt, the letter
stated: “You want to be worthy of the faith put in you by
your creditor … . We are interested in you preserving a good
credit rating with the above creditor.”
A year later Larkin sued Finance System alleging that
these sentences are false, deceptive, or misleading in viola-
tion of § 1692e of the Fair Debt Collection Practices Act
(“FDCPA” or “the Act”). She also generally alleged that the
statements amount to an unfair or unconscionable means of
collecting a debt in violation of § 1692f. Larkin proposed to
Nos. 18-3582 & 19-1557 3
represent a class of persons who received similar dunning
letters from Finance System.
Dorean Sandri also incurred a debt to Green Bay Radiol-
ogy. In August and September 2017, Finance System sent her
three collection letters much like the one Larkin received.
The first was dated August 6 and said, “Your creditor is
interested in you preserving a good credit rating with them.”
The second, dated August 22, said, “You do not want to lose
our confidence. You want to be worthy of the faith put in
you by your creditor … .” The third, sent on September 7,
told Sandri that “[y]our creditor has placed your bill for
collection. To avoid errors and to clear your credit record
with the above creditor, send or bring your payment to our
office, or pay online … .”
Represented by the same law firm as Larkin, Sandri filed
a nearly identical class-action lawsuit claiming that these
statements are false, deceptive, or misleading, or otherwise
unfair or unconscionable, in violation of §§ 1692e and 1692f.
The cases were assigned to the same district judge but
not consolidated. In Larkin’s case Finance System moved to
dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure, arguing that the complaint was both un-
timely and failed to state a claim. The judge ordered sup-
plemental briefing on the question of Larkin’s standing to
sue. Finance System responded that Larkin lacks standing,
then moved to dismiss Sandri’s case as well based on lack of
standing and failure to state a claim.
Addressing the dismissal motion in Larkin’s case first,
the judge concluded that Larkin has standing and had timely
filed suit. But he dismissed her complaint for failure to state
4 Nos. 18-3582 & 19-1557
a claim, holding as a matter of law that the statements we’ve
quoted above do not violate §§ 1692e or 1692f. The judge
reached the same conclusions in Sandri’s case and dismissed
her complaint for failure to state a claim.
Larkin and Sandri appealed. We consolidated the cases
because they present identical questions of law.
II. Discussion
We begin—and end—with a discussion of standing.
Article III of the Constitution empowers the federal judiciary
to decide “Cases” and “Controversies,” U.S. CONST. art. III,
§ 2, a limitation long understood to confine the federal
courts to concrete disputes presented in a form historically
recognized as appropriate for judicial resolution in the
Anglo-American legal tradition, DaimlerChrysler Corp. v.
Cuno, 547 U.S. 332, 341 (2006). The doctrine of standing
enforces this Article III limitation. To invoke the jurisdiction
of a federal court, a plaintiff must demonstrate that he has
standing to sue, a requirement “rooted in the traditional
understanding of a case or controversy.” Spokeo, 136 S. Ct. at
1547.
To establish standing, a plaintiff has the burden to estab-
lish that he has “(1) suffered an injury in fact, (2) that is fairly
traceable to the challenged conduct of the defendant, and
(3) that is likely to be redressed by a favorable judicial
ruling.” Id. At the pleading stage, the standing inquiry asks
whether the complaint “clearly … allege[s] facts demonstrat-
ing each element” in the doctrinal test. Id. (quotation marks
omitted).
Many disputes about standing turn on the “injury in
fact” requirement, and these two cases fall within that
Nos. 18-3582 & 19-1557 5
category. “To establish injury in fact, a plaintiff must show
that he or she suffered ‘an invasion of a legally protected
interest’ that is ‘concrete and particularized’ and ‘actual or
imminent, not conjectural or hypothetical.’” Id. at 1548
(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992)). The key question here is whether Larkin and Sandri
have alleged an injury that is “both concrete and particular-
ized.” Id.
Particularization is generally easy to understand. An in-
jury is particularized if it “affect[s] the plaintiff in a personal
and individual way.” Lujan, 504 U.S. at 560 n.1. The claimed
injury cannot be a generalized grievance shared by all
members of the public. DaimlerChrysler Corp., 547 U.S. at
342–44. Rather, the plaintiff himself must have personally
suffered an actual injury or an imminent threat of injury. Id.;
see also Thole v. U.S. Bank N.A., 140 S. Ct. 1615, 1619 (2020)
(affirming a dismissal for lack of standing because the
plaintiffs themselves had no stake in the lawsuit).
The concreteness requirement can be trickier. “A concrete
injury must be de facto; that is, it must actually exist.” Spokeo,
136 S. Ct. at 1548 (quotation marks omitted). Put slightly
differently, a concrete injury is one that is “real, … not
abstract.” Id. (quotation marks omitted). But “concrete” does
not necessarily mean “tangible.” Both tangible and intangi-
ble harms can satisfy the concreteness requirement, although
tangible injuries—e.g., physical harms and monetary loss-
es—are “easier to recognize.” Id. at 1549.
Intangible harms raise more difficult injury-in-fact ques-
tions. In the context of suits seeking relief for statutory
violations, “both history and the judgment of Congress play
important roles” in the analysis. Id. Congress may identify
6 Nos. 18-3582 & 19-1557
and elevate historically non-cognizable intangible harms to
the status of cognizable injuries, and when it does so, “its
judgment is … instructive and important.” Id. But it’s not
conclusive. To the contrary, as the Supreme Court empha-
sized in Spokeo, a congressional decision to create a cause of
action “does not mean that a plaintiff automatically satisfies
the injury-in-fact requirement whenever a statute grants a
person a statutory right and purports to authorize that
person to sue to vindicate that right.” Id. Because Congress
cannot override the case-or-controversy requirement,
“Article III standing requires a concrete injury even in the
context of a statutory violation.” Id. So, for example, when a
plaintiff sues for “a bare procedural violation” of a statute
and has not alleged a concrete personal injury from the
violation, he has not satisfied the injury-in-fact requirement
of Article III. Id.
Two of our recent cases applied the teaching of Spokeo to
lawsuits arising under the FDCPA. Casillas v. Madison Ave-
nue Associates concerned an alleged violation of § 1692g,
which requires debt collectors to provide consumers with
written notice of certain statutory rights—notably, the right
to dispute the debt and the right to demand that the debt
collector verify the identity of the creditor. 926 F.3d at 332.
The defendant debt collector in that case made the required
statutory disclosures in its communications with Paula
Casillas but failed to inform her that if she wished to exercise
her right to dispute the debt or demand verification of the
creditor’s identity, she had to do so “in writing” as
§ 1692g(a)(4) requires. Id.
Casillas sued the debt collector for violating § 1692g(a)
based on the failure to include the required “in writing”
Nos. 18-3582 & 19-1557 7
notice. But she did not allege any injury other than “the
receipt of an incomplete letter”—i.e., a letter that failed to
tell her of the “in writing” requirement if she wished to
dispute the debt or seek verification of the creditor’s identi-
ty. Id. at 331–32. Casillas did not claim that this incomplete
letter harmed her in any way. “She did not allege that she
tried—or even planned to try—to dispute the debt or verify
[the identity of] … her creditor.” Id. at 332. In short, “her
notice was missing some information that she did not sug-
gest that she would ever have used.” Id. at 334. This meant
that “[a]ny 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.”
Id. Applying Spokeo, we concluded that because Casillas
alleged “a bare procedural violation” without any allegation
of a concrete harm, she lacked standing to sue. Id. at 339.
Lavallee v. Med-1 Solutions, 932 F.3d 1049 (7th Cir. 2019),
also concerned an alleged violation of § 1692g, but the
standing inquiry yielded a different result. Unlike Casillas,
which involved an “incomplete validation notice,” in Lavallee
the debt collector did not provide “any of the disclosures
required by § 1692g(a).” Id. at 1053. And crucially, the plain-
tiff, Beth Lavallee, suffered an actual harm from the statuto-
ry violation: the debt collector had already sued her in state
court to collect the debt. That collection action would have
been frozen in its tracks if she had disputed the debt or
demanded verification as provided in the FDCPA. Under
these circumstances, we found it reasonable to infer that if
the debt collector had complied with its FDCPA notice
obligations, Lavallee “would have exercised her statutory
rights [to dispute the debt and demand verification], thereby
8 Nos. 18-3582 & 19-1557
halting the collection litigation.” Id. That was enough to
establish a concrete injury:
In light of Casillas, an FDCPA plaintiff should
include an allegation of concrete harm in his
complaint. A bare allegation that the defendant
violated one of the Act’s procedural require-
ments typically won’t satisfy the injury-in-fact
requirement. But in Lavallee’s circumstances,
the complete deprivation of § 1692g(a) disclo-
sures and the fact that she was sued without
the benefit of mandatory § 1692g(a) disclosures
lends concreteness to her injury.
Id.
With Casillas and Lavallee in mind, we return to our cases.
Casillas and Lavallee raised claims under § 1692g, which
imposes procedural obligations on debt collectors to notify
consumers of certain statutory rights when communicating
with them. Larkin and Sandri, on the other hand, raise
claims under §§ 1692e and 1692f, which prohibit “false,
deceptive, or misleading representations” and “unfair or
unconscionable” practices in the collection of consumer
debts. In other words, the plaintiffs here invoke the Act’s
substantive provisions. Their attorney pointed to this
procedural/substantive distinction at oral argument as a
basis to distinguish Casillas. We’re not persuaded that the
distinction makes Casillas inapplicable or alters the Article III
calculus. An FDCPA plaintiff must allege a concrete injury
regardless of whether the alleged statutory violation is
characterized as procedural or substantive. Thole, 140 S. Ct.
at 1621 (concluding that “the plaintiffs have failed to plausi-
Nos. 18-3582 & 19-1557 9
bly allege a concrete injury” in a case raising a substantive
ERISA violation).
Neither Larkin nor Sandri has done so here. As Casillas
explains, it’s not enough for an FDCPA plaintiff to simply
allege a statutory violation; he must allege (and later estab-
lish) that the statutory violation harmed him “or ‘presented
an appreciable risk of harm to the underlying concrete
interest that Congress sought to protect.’” Casillas, 926 F.3d
at 333 (quoting Groshek v. Time Warner Cable, Inc., 865 F.3d
884, 887 (7th Cir. 2017)). Larkin and Sandri generally alleged
in their complaints that certain statements in Finance Sys-
tem’s collection letters were false, deceptive, or misleading,
or unfair and unconscionable, in violation of §§ 1692e and
1692f. But neither complaint contains any allegation of
harm—or even an appreciable risk of harm—from the
claimed statutory violation.
Nothing in the plaintiffs’ appellate briefing filled the gap.
Although the question of standing was litigated in the
district court and raised again by Finance System in its brief
on appeal, the plaintiffs’ reply brief relied exclusively on the
assertion of a statutory violation and made no effort to
articulate an injury of any kind, either tangible or intangible,
from the violation. 1
1 The plaintiffs did not address standing at all in their opening brief.
Moreover, in their reply brief, they primarily argued that Finance System
“waived appellate review” of its standing challenge by failing to file a
cross-appeal. That argument is frivolous. Article III standing is jurisdic-
tional and cannot be waived. Freedom from Religion Found., Inc. v.
Nicholson, 536 F.3d 730, 737 (7th Cir. 2008).
10 Nos. 18-3582 & 19-1557
Not finding an allegation of injury in the complaints or
briefing, we gave the plaintiffs’ attorney several opportuni-
ties at oral argument to identify a concrete injury that might
support his clients’ standing to sue. He could not do so. He
did not contend, for example, that Finance System’s com-
munications caused the plaintiffs to pay debts they did not
owe or created an appreciable risk that they might do so. He
did not claim that his clients were confused or misled to
their detriment by the statements in the dunning letters, or
otherwise relied to their detriment on the contents of the
letters. He did not suggest that it was reasonable to infer that
Larkin and Sandri would have pursued a different course of
action were it not for the statutory violations (as was the case
in Lavallee). He did raise the possibility that the statements in
the dunning letters might interfere with the doctor-patient
relationship because the creditor in question was a medical
provider. That’s too abstract and conjectural to constitute an
injury in fact. The radiology clinic already knew that Larkin
and Sandri hadn’t paid their bills; that’s why the clinic hired
a debt collector. There is no allegation that the collection
letters deterred Larkin or Sandri from seeking medical care
or that any provider would refuse to treat them.
In sum, the plaintiffs seek to invoke the power of the fed-
eral courts to litigate an alleged FDCPA violation that did
not injure them in any concrete way, tangible or intangible.
As explained in Spokeo and Casillas, that’s impermissible
under Article III. The suits should have been dismissed for
lack of standing. We therefore modify the judgments to
reflect a jurisdictional dismissal. As modified, the judgments
are
AFFIRMED