Quentin Crabtree v. Experian Information Solutions

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 18-3416 & 18-3405
QUENTIN CRABTREE,
Plaintiff-Appellant, Cross-Appellee,
v.
EXPERIAN INFORMATION SOLUTIONS, INC.,
Defendant-Appellee, Cross-Appellant.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:16-cv-10706 — Charles R. Norgle, Judge.
____________________
ARGUED SEPTEMBER 4, 2019 — DECIDED JANUARY 28, 2020
____________________
Before ROVNER, SCUDDER, and ST. EVE, Circuit Judges.
SCUDDER, Circuit Judge. We know from the Supreme
Court’s decision in Spokeo, Inc. v. Robins that a plaintiff claim-
ing a statutory violation must allege a concrete and particu-
larized injury for Article III standing. Recent years have
shown that this principle is often easier to observe than to ap-
ply. The claim in this appeal falls on the easier side. Quentin
Crabtree filed this suit against Experian for what he contends
was an unauthorized release of his credit information under
2 Nos. 18-3416 & 18-3405
the Fair Credit Reporting Act. Experian responded by going
on the offensive by itself bringing a FCRA counterclaim
against Crabtree. The district court dismissed Crabtree’s
claim because any injury was exceedingly remote and specu-
lative. We agree. We further conclude that Experian’s coun-
terclaim likewise fails for lack of standing and therefore af-
firm across the board.
I
The Fair Credit Reporting Act or FCRA protects consum-
ers’ privacy in their credit information. It does so in part by
prohibiting consumer reporting agencies like Experian from
releasing credit information except under specific circum-
stances, which Congress enumerated in 15 U.S.C. § 1681b.
One exception allows consumer reporting agencies to provide
prospective lenders with a list of consumers who meet their
criteria. In trade parlance, these lists are called “prescreen
lists.” The sharing of a prescreen list is allowed if it results in
a “firm offer of credit or insurance” to every consumer on that
list. See id. § 1681b(c)(1)(B)(i). In this way, though FCRA
broadly prohibits the unauthorized disclosure of credit infor-
mation, Congress authorized the limited disclosure of such
information in exchange for the benefit of a guaranteed offer
of credit or insurance.
Stepping back to see what the lawful exchange of pre-
screen lists typically looks like aids our analysis. As a con-
sumer reporting agency, Experian compiles consumer infor-
mation into credit reports and scores. Intermediate entities
collect this information from Experian and provide tailored
prescreen lists of consumers to creditors and insurers intend-
ing to make firm offers. So long as those creditors and insurers
ultimately extend a firm offer to each person on the list, the
Nos. 18-3416 & 18-3405 3
process complies with the privacy trade-off Congress contem-
plated in passing FCRA. See id.
At first glance that seems to be what happened when
Quentin Crabtree’s information appeared on a 2011 prescreen
list compiled from Experian’s data. But there were some com-
plications, which Crabtree learned of in 2016 and then formed
the basis of his lawsuit. The full facts are complicated and re-
quire unpacking.
Prior to the events in this case, Experian and Western Si-
erra had a contract that permitted Western Sierra to receive
prescreen lists from Experian. These were not direct ex-
changes, however, as both parties used agents. Experian pro-
vided its consumer data to a company called Tranzact, which
used that information to create prescreen lists. For its part,
Western Sierra did not directly deal with Tranzact; rather,
Tranzact sold the prescreen lists to a marketing agency called
Data by IMS. Data by IMS would then extend offers backed
by Western Sierra to the consumers on the prescreen list. To
summarize, Experian dealt with Tranzact, Western Sierra
dealt with Data by IMS, and Tranzact and Data by IMS dealt
with each other—all in furtherance of Experian’s contract
with Western Sierra.
Though Crabtree brought his claim in 2016, the unauthor-
ized exchange underlying his lawsuit took place in 2011. Ex-
perian terminated its contract with Western Sierra in October
and set November 18, 2011 as the cutoff date. At that point,
Western Sierra was no longer authorized to receive Experian’s
credit data, including in the form of prescreen lists prepared
by Tranzact and purchased by Data by IMS.
4 Nos. 18-3416 & 18-3405
Despite the terminated contract, a prescreen list with Ex-
perian’s data made it through the web of credit-related enti-
ties to Western Sierra on November 30, 2011. Neither Experian
nor Western Sierra knew there was any problem. Experian did
not know that Tranzact had given a list to Data by IMS that
would be backed by Western Sierra, and Western Sierra be-
lieved that Data by IMS had obtained the list from a different
consumer reporting agency with whom it still had a valid con-
tract. Because of the miscommunication, the prescreen list of
consumer credit information, which included Crabtree, was
shared when it should not have been.
But these facts do not necessarily show a FCRA violation.
Even though Experian’s contract with Western Sierra did not
authorize the disclosure, there is little indication that Western
Sierra, believing that everything was in order, failed to extend
firm offers to everyone on the November 2011 prescreen list.
What is more, Crabtree himself testified that he was unable to
say that he did not receive a firm offer from Western Sierra
and in fact he “probably did” but just does not recall. Crabtree
went further and admitted that he would not have sought a
loan in response to any offer of credit.
These facts nonetheless gave rise to a lawsuit. Crabtree
filed a complaint against Experian in November 2016—nearly
five years after Experian shared his credit information with
Western Sierra. Discovery revealed that Crabtree learned
about this post-contract disclosure through the person who is
now his lawyer. The lawyer had recognized Crabtree’s name
while examining the list and brought it to his attention. It was
only then that Crabtree was made aware of any of this and
decided to bring suit in federal court under FCRA.
Nos. 18-3416 & 18-3405 5
Crabtree alleged that he suffered two harms from his in-
clusion on the prescreen list: an invasion of privacy and emo-
tional distress. Experian reacted to being sued by lodging a
counterclaim under FCRA. According to the counterclaim,
FCRA prohibited Crabtree from receiving a prescreen list for
any purpose other than extending a firm offer of credit—not
to support a lawsuit against a consumer reporting agency.
After extensive and complete jurisdictional discovery on
whether Crabtree had alleged the requisite injury-in-fact to
satisfy Article III’s case or controversy requirement, the dis-
trict court dismissed the complaint for lack of standing pur-
suant to Federal Rule of Civil Procedure 12(b)(1). It deter-
mined that Experian’s alleged statutory violation, without
further allegations of harm, was insufficient to establish a con-
crete injury and that Crabtree’s emotional damages were en-
tirely unsupported. The court also dismissed Experian’s
counterclaim for the same reason and required Crabtree to
pay for the deposition of Experian’s proffered expert. Both
sides appealed.
II
A
Our first question in any case is whether we have jurisdic-
tion. Article III extends the judicial power only to the resolu-
tion of cases and controversies. At the very least, this requires
a plaintiff to have suffered an injury-in-fact traceable to the
defendant and capable of being redressed through a favorable
judicial ruling. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–
61 (1992); see also Lopez-Aguilar v. Marion Cty. Sheriff's Dep't,
924 F.3d 375, 384 (7th Cir. 2019). At the pleading stage, the
6 Nos. 18-3416 & 18-3405
plaintiff must allege facts that demonstrate each element of
Article III standing.
The alleged injury must be “concrete and particularized”
as well as “actual or imminent, not conjectural or hypothet-
ical” to satisfy Article III standing. Lujan, 504 U.S. at 561. A
“particularized” injury is one that “affect[s] the plaintiff in a
personal and individual way.” Id. at 560 n.1. Concreteness
means that the injury must exist: it must be “real,” not ab-
stract. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016).
Identifying a violation of a statutory right does not auto-
matically equate to showing injury-in-fact for standing pur-
poses. See id. at 1548. Because the injury-in-fact requirement
is rooted in Article III, Congress cannot “statutorily grant[]
the right to sue to a plaintiff who would not otherwise have
standing.” Id. at 1548–49. While a “bare procedural violation,
divorced from any concrete injury” may be particularized be-
cause it is unique to the individual plaintiff, without more it
is insufficient to confer standing. Id. at 1549.
These teachings come from the Supreme Court’s 2016 de-
cision in Spokeo, Inc. v. Robins. Like this case, Spokeo concerned
whether a statutory violation of FCRA satisfied the injury-in-
fact requirement for purposes of Article III standing. See id. at
1546. Thomas Robins brought a class action against Spokeo, a
so-called “people search engine,” for failing to comply with
FCRA’s requirements. Id. Spokeo’s service allowed users to
search people by name, email address, or phone number and
in return provided information such as the individual’s “ad-
dress, phone number, marital status, approximate age, [and]
occupation[.]” Id. Robins alleged harm based on inaccuracies
in his information. The inaccuracies amounted to a FCRA vi-
olation because Spokeo willfully failed to comply with several
Nos. 18-3416 & 18-3405 7
of the statute’s requirements, including that consumer report-
ing agencies “follow reasonable procedures to assure maxi-
mum possible accuracy of” consumer reports. Id. at 1545 (cit-
ing 15 U.S.C. § 1681e(b)).
The Supreme Court remanded the case because the appel-
late court had not adequately considered whether the alleged
procedural violations “entail[ed] a degree of risk sufficient to
meet the concreteness requirement.” Id. at 1550. While any
small error in a consumer report might violate FCRA, the
Court emphasized that “not all inaccuracies cause harm or
present any material risk of harm” and therefore not all inac-
curacies amount to an injury sufficient to confer Article III
standing. Id. By way of example, the Court observed that “[i]t
is difficult to imagine how the dissemination of an incorrect
zip code, without more, could work any concrete harm.” Id.
B
In Spokeo’s wake, we like other circuits have considered its
application to the concrete injury requirement in several con-
sumer protection cases. Three particular decisions stand
alongside Spokeo itself to frame the proper analysis here.
First, in Gubala v. Time Warner Cable, Inc., Time Warner re-
tained the plaintiff’s information for eight years after he can-
celled his cable television subscription but had not given the
information to anyone else. 846 F.3d 909, 911 (7th Cir. 2017).
We were willing to assume that Time Warner’s retention of
the information violated the Cable Communications Policy
Act, which provides that cable operators must destroy per-
sonally identifiable information under such circumstances. Id.
at 910. But, applying the lessons of Spokeo, we held that the
mere retention of private consumer information, absent any
8 Nos. 18-3416 & 18-3405
dissemination, did not constitute a concrete injury for Article
III standing purposes. Id. at 912. We did not reach the point of
considering whether the distribution of this type of infor-
mation would be a privacy injury or otherwise harmful. See
Meyers v. Nicolet Rest. of De Pere, LLC, 843 F.3d 724, 727 (7th
Cir. 2016) (holding that even though printing a credit card’s
expiration date on a receipt violates FCRA, there was no con-
crete injury because the plaintiff did not suffer any actual
harm or appreciable risk of identity theft).
Next came Robertson v. Allied Solutions, LLC, where we
held that a statutory violation that led to the deprivation of an
opportunity, even if futile as a practical matter, can be enough
to establish a concrete injury. 902 F.3d 690, 697 (7th Cir. 2018).
A prospective employer failed to provide the plaintiff with a
copy of her background report before rescinding her employ-
ment offer, which is a violation of FCRA. See id. at 695 (ex-
plaining that § 1681b(b)(3)(A) of FCRA requires a person in-
tending to take an adverse action on the basis of a consumer
report used for employment purposes to provide the con-
sumer with a copy of the report). This allegation sufficed to
establish an injury-in-fact for pleading purposes. See id. at
697. The alleged injury was concrete enough because the
plaintiff as a prospective employee lost the benefit of “her in-
terest in responding” to information in her background re-
port, even if the information was accurate and she would have
been unable to convince the prospective employer to honor
the original offer. Id.; but see Rivera v. Allstate Ins. Co., 913 F.3d
603, 616–17 (7th Cir. 2018) (holding that a violation of
§ 1681(a)(y)(2) of FCRA, which requires employers to disclose
a summary of an investigation into employee misconduct after
an adverse action, was not a concrete injury because the dis-
closure performed a “mere post hoc notice function”).
Nos. 18-3416 & 18-3405 9
More recently, we considered Spokeo’s application in Casil-
las v. Madison Avenue Associates, 926 F.3d 329 (7th Cir. 2019).
We again held that a bare statutory violation not affecting the
plaintiff does not suffice to show the concrete injury required
for Article III standing. See id. at 334. The Fair Debt Collection
Practices Act required the debt collector defendants to inform
consumers that they must respond to collection notices to trig-
ger certain statutory protections. See 15 U.S.C. § 1692g(a). The
debt collectors did so but failed to state that a consumer’s re-
sponse had to be in writing to satisfy the statute. See Casillas,
926 F.3d at 332. The plaintiff, however, had never contem-
plated responding in any manner and was therefore, as a
practical matter, unaffected by the insufficient direction pro-
vided by the debt collector defendants. See id. at 334. We were
careful to note that a plaintiff who had verbally responded
and still lost statutory protections would present a different
case. See id. On the facts before us, though, it was plain that
the plaintiff never considered responding in any way to the
debt collector’s collection notice, and it was that pleading
shortcoming that showed the absence of any injury-in-fact for
Article III standing purposes. See id.; see also Groshek v. Time
Warner Cable, Inc., 865 F.3d 884, 887 (holding there was no con-
crete injury from Time Warner’s failure to comply with
FCRA’s requirement that a disclosure be in a standalone doc-
ument when the plaintiff did not allege that the extraneous
information caused him any confusion).
To sum up—and emphasizing that we have avoided
broad holdings and instead focused on the particular facts of
each case—Robertson v. Allied Solutions provided an example
of a prospective employee adequately pleading a concrete in-
jury from a statutory violation that had the effect of depriving
her of the chance to respond to information in a background
10 Nos. 18-3416 & 18-3405
report that FCRA entitled her to receive. Gubala v. Time
Warner, on the other hand, showed that a complaint fell short
on the injury prong by alleging only that a defendant failed to
comply with its obligation under the Cable Communications
Policy Act to destroy the plaintiff’s personally identifiable in-
formation. And so, too, was it not enough in Casillas v. Madi-
son Avenue Associates for a plaintiff, with no intention of dis-
puting an unpaid debt, to show that the debt collector failed
to comply with the FDCPA’s requirement of informing a
debtor that any dispute must be in writing.
C
These principles find a straightforward application on the
facts before us. The disclosure that Crabtree learned of nearly
five years after Experian included his name on a prescreen list
is not a concrete injury. To start with the obvious, Crabtree
has not plausibly alleged that Experian shared his private
credit report with a lender not intending to make a firm offer.
Because of the middlemen inherent in this process, Crabtree’s
information got to Western Sierra from Experian even though,
because of their terminated contract, it should not have. By
Crabtree’s own admissions, however, Western Sierra likely
did extend him a firm offer of credit after receiving his infor-
mation from Experian. The contractually unauthorized ex-
change of information, then, is the type of “bare procedural
violation” contemplated in Spokeo that, without more, does
not suffice to establish a concrete injury-in-fact for Article III
purposes. 136 S. Ct. at 1550.
To put the same point in statutory terms, the privacy in-
terest in credit information embodied in FCRA was permissi-
bly exchanged for the promise of a firm offer—all of which
Congress allowed in § 1681b. As Crabtree likely received the
Nos. 18-3416 & 18-3405 11
exchanged-for benefit—a point he admitted in his deposition
testimony—any potential injury based on the possibility that
he did not receive a firm offer is too speculative and remote to
satisfy Article III’s injury-in-fact requirement.
Even more, Crabtree has identified no harm of any kind.
Like the plaintiff in Casillas who never attempted to respond
to the debt collector and therefore was not affected by the in-
complete instructions, Crabtree admitted in sworn testimony
that he would have thrown any firm offer from Western Sierra
in the trash. Indeed, he only learned about these events after
being contacted by his lawyer nearly five years later. If this
communication had not occurred, Crabtree would have gone
on completely unaware of and unaffected by any prescreen
list. This all falls well short of the concreteness mandated by
Article III. Crabtree had to come forward with something
showing that he did not receive a firm offer, that Western Si-
erra would not have honored a firm offer, that he was affected
by the lack of a firm offer, or that he suffered any actual emo-
tional damages. He failed on each possible ground, leaving
him without the concrete injury necessary for Article III
standing.
D
Do not overread our conclusion to mean that a claim like
Crabtree’s fails as a matter of course. Based on Spokeo’s prin-
ciples, there is no question that a consumer reporting agency’s
unauthorized disclosure of consumer credit information can
be a concrete injury. The common law recognized some right
to privacy that “encompass[es] the individual’s control of in-
formation concerning his or her person.” U.S. Dep’t of Justice
v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 763 (1989).
And FCRA specifically articulates a statutory right to privacy
12 Nos. 18-3416 & 18-3405
in consumer credit reports. See 15 U.S.C. § 1681(a). We have
previously recognized this right to privacy in such infor-
mation. See Cole v. U.S. Capital, Inc., 389 F.3d 719, 728 (7th Cir.
2004) (holding that a plaintiff stated a claim when a lender
obtained her credit data without giving her the benefit of a
firm offer, one of the permissible purposes under FCRA).
The disclosure of consumer credit information, absent any
exchanged-for consumer benefit contemplated by FCRA, can
constitute an injury-in-fact for the purpose of Article III stand-
ing. The common law history, Congress’s judgment in FCRA,
and our line of cases all support the conclusion that the injury
can be sufficiently real. The plaintiff just needs to plead or oth-
erwise come forward with some evidence showing that is
what happened and thus is the source of the alleged injury
giving rise to the FCRA claim. The district court was right to
conclude that Crabtree failed to meet these standards.
III
A
This brings us to Experian’s counterclaim. Recall that Ex-
perian, in response to being sued under FCRA, affirmatively
invoked the statute to bring a counterclaim against Crabtree.
It alleged that Crabtree as the plaintiff violated § 1681n(b) by
himself obtaining a prescreen list to initiate this lawsuit, a
purpose Experian sees as well outside those enumerated in
the statute. The district court dismissed the counterclaim on
the basis that Experian lacked standing. More to it, the district
court found Experian’s allegation of reputational harm spec-
ulative, while also concluding that the Supreme Court’s deci-
sion in Steel Co. v. Citizens for a Better Environment, 523 U.S. 83(1998), precluded the company from pointing to the costs it
Nos. 18-3416 & 18-3405 13
incurred in defending Crabtree’s lawsuit as an injury for Ar-
ticle III standing.
We chart a different path of reasoning in reaching the same
conclusion and start with Experian’s allegation of reputa-
tional harm. We agree with the district court that this was not
a sufficient injury, as it was unsupported by any factual alle-
gations. Experian’s counterclaim points to no definite reasons
to believe Crabtree’s lawsuit tarnished the company’s good-
will, affected its future business prospects, or lessened its po-
sition as one of the nation’s major consumer reporting agen-
cies. It is not enough to say that your reputation was harmed
without explaining how. See Johnson v. U.S. Office of Pers.
Mgmt., 783 F.3d 655, 669 (7th Cir. 2015) (holding that “a polit-
ical figure’s assertion, without more, that the receipt . . . [of] a
benefit will hurt his or her reputation . . . is insufficient to es-
tablish standing”). Experian’s bare counterclaim allegations
are “conjectural or hypothetical” and therefore are insuffi-
cient to confer standing. Lujan, 504 U.S. at 560; see also Die-
drich v. Ocwen Loan Servicing, LLC, 839 F.3d 583, 589 (7th Cir.
2016) (“Legal conclusions or bare and conclusory allegations
. . . are insufficient to state a claim.”).
B
As for Experian’s second basis for standing, we see the
analysis in terms different than those endorsed by the district
court. The costs to defend a lawsuit can be an injury-in-fact
for purposes of Article III. In the case relied on by the district
court, Steel Co. v. Citizens for a Better Environment, the Supreme
Court only addressed whether a plaintiff can satisfy standing
simply by pointing to the cost of bringing suit. See 523 U.S. at
107. While that cost may be concrete and particularized, the
Court held that “[t]he litigation must give the plaintiff some
14 Nos. 18-3416 & 18-3405
other benefit besides reimbursement of costs that are a by-
product of the litigation itself.” Id. A contrary rule would es-
sentially eliminate the injury and redressability requirements
of Article III standing. Here, however, Experian alleged that
the harm is the cost of defending the lawsuit, not bringing it.
So we cannot conclude that Steel Company resolves the ques-
tion.
Experian’s position—that the cost of defending a lawsuit
is enough for Article III standing—finds some support in our
court’s Steel Company decision, which we decided on a re-
mand from the Supreme Court. See Citizens for a Better Env’t
v. Steel Co., 230 F.3d 923, 926 (7th Cir. 2000). Even though the
Supreme Court dismissed the underlying case for lack of ju-
risdiction, we retained authority on remand to award attor-
ney’s fees to the prevailing party that was “injured in fact to
the tune of $270,000 and counting.” Id. We explained that the
law allows “awards of litigation expenses in suits that federal
courts are not authorized to decide on the merits.” Id. at 927.
Against this principle, it is hard to say that litigation expenses
alone cannot be a concrete and particularized injury for the
purpose of our Article III standing.
To recognize that Experian has Article III standing to bring
a counterclaim does not mean the company has a statutory
right under FCRA to recover its defense costs, however. And
even if such a right exists, the proper mechanism for relief
from this type of injury ordinarily is not a counterclaim but
instead a motion made after the court has entered judgment.
Even more specifically, Federal Rule of Civil Procedure 54
provides that a claim for attorney’s fees “must be made by
motion unless the substantive law requires those fees to be
proved at trial as an element of damages.” FED. R. CIV. P.
Nos. 18-3416 & 18-3405 15
54(d)(2)(A). This motion must specify “the statute, rule, or
other grounds entitling the movant to the award.” FED. R. CIV.
P. 54(d)(2)(B)(ii).
In Citizens for a Better Environment, we held that the de-
fendants had Article III standing to avail themselves of a fed-
eral statutory right to recover their defense costs after the Su-
preme Court dismissed the plaintiff’s Emergency Planning
and Community Right-to-Know Act claim. See 230 F.3d at
926. That does not mean, however, that this Article III stand-
ing alone was sufficient to bring their lawsuit; it was essential
to the decision that the relevant statute provided for the re-
covery of attorney’s fees. See id. at 925 (citing EPCRA’s cause
of action for litigation costs in 42 U.S.C. § 11046(f)). To recover
costs, there must be a federal statutory right or some other
grounds for a defendant to avail on its claim.
Put more simply, a party injured only by incurring de-
fense costs—while injured for constitutional purposes—must
find some statutory or common law hook for its motion or
claim to recover those costs. Determining whether there is a
cause of action in these circumstances “is a matter of statutory
meaning, not of the power to adjudicate.” Id. at 928; see also
Bank of Am. Corp. v. City of Miami, Fla., 137 S. Ct. 1296, 1302
(2017) (noting that the Supreme Court has cautioned against
using “prudential standing” to describe the statutory inter-
pretation exercise of discerning a cause of action’s scope un-
der a particular statute). The most obvious basis is a statutory
right for defense costs, but defendants could also point to a
common law claim for malicious prosecution. See, e.g., City of
New Haven v. Reichhart, 748 N.E.2d 374, 378 (Ind. 2001) (listing
the elements for a malicious prosecution claim under Indiana
law). Absent either of these more straightforward grounds, a
16 Nos. 18-3416 & 18-3405
defendant whose only injury is defense costs may attempt to
shoehorn itself into another cause of action. That is what is
happening here.
C
FCRA does not provide a statutory cause of action to re-
cover defense costs. If it did, this issue would be easy. All we
would need to do is determine whether Experian satisfied the
statutory criteria for recovery.
Recognizing this, Experian has nonetheless invoked
FCRA and tries to fit under a different provision of the statute
to bring its counterclaim. To do so, though, the law requires
Experian to show that its claim “fall[s] within the zone of in-
terests protected” by the precise provision of FCRA invoked
in its counterclaim. Lexmark Int’l, Inc. v. Static Control Compo-
nents, Inc., 572 U.S. 118, 126 (2014). The controlling question is
“whether a legislatively conferred cause of action encom-
passes a particular plaintiff’s claim.” Id. at 127. To do so we
“apply traditional principles of statutory interpretation.” Id.
at 128.
Lexmark itself illustrates the proper approach. The case
concerned whether Static Control, a maker and seller of com-
ponents for Lexmark’s cartridges, had standing to sue
Lexmark for false advertising under the Lanham Act. See id.
at 120. Static Control invoked § 1125(a) of the statute and al-
leged that Lexmark misled consumers to believe that they
were required to return ink cartridges after a single use, as
opposed to using Static Control’s parts to refurbish the car-
tridges. See id. at 122–23. Static Control also alleged that
Lexmark falsely advertised to companies in the toner car-
tridge manufacturing business by sending letters stating that
Nos. 18-3416 & 18-3405 17
it was illegal to sell Lexmark cartridges that had been refur-
bished with Static Control’s parts. See id. This injured Static
Control by diverting its sales to Lexmark. See id. at 123.
In order to bring a claim, the Court emphasized that Static
Control must fall within the zone of interests protected by
§ 1125(a) of the Lanham Act for false advertising, which au-
thorizes suit by “any person who believes that he or she is
likely to be damaged by a defendant’s false advertising.” Id.
at 129 (internal quotations omitted) (citing 15 U.S.C.
§ 1125(a)). The Court then looked to the Lanham Act’s express
goals of preventing fraud and protecting persons engaged in
commerce against unfair competition. See id. at 131. From
there the Court concluded that a plaintiff bringing a claim un-
der this provision “must allege an injury to a commercial in-
terest in reputation or sales.” Id. at 131–32. For example, “[a]
consumer who is hoodwinked into purchasing a disappoint-
ing product may well have an injury-in-fact cognizable under
Article III, but . . . cannot invoke the protection of the Lanham
Act.” Id. at 132. Because the plaintiff in Lexmark was a business
engaged in commerce whose position had been damaged by
false advertising, not a “deceived consumer,” there was “no
doubt” they fell within the statute’s zone of protected inter-
ests. Id. at 137.
D
Determining whether Experian can bring its counterclaim
requires us to follow Lexmark’s guidance by asking both
whether the company has Article III standing and, separately,
whether it falls within the zone of interests Congress meant to
protect in creating a civil cause of action in § 1681b. The first
question is straightforward. Experian, in defending Crab-
tree’s claims, has suffered a redressable injury-in-fact that is
18 Nos. 18-3416 & 18-3405
traceable to Crabtree. If Crabtree had not committed the al-
leged statutory violation by obtaining the prescreen list, he
would not have known that Experian disclosed his infor-
mation to Western Sierra after the termination of their con-
tract. So, the reasoning continues, there would have then been
no lawsuit and Experian would have saved the time, money,
and energy it spent defending against Crabtree’s claim.
But we know from Lexmark that identifying an injury is not
the same as locating a viable statutory cause of action. Ex-
perian cannot bring its counterclaim because the FCRA cause
of action that it invokes does not encompass that claim. Ex-
perian brought its counterclaim under FCRA’s provision for
civil liability for knowing noncompliance, which covers
“[a]ny person who obtains a consumer report from a con-
sumer reporting agency under false pretenses or knowingly
without a permissible purpose[.]” 15 U.S.C. § 1681n(b). On the
surface, § 1681n(b) might seem to cover Crabtree’s actions be-
cause he obtained the prescreen list through his lawyer for the
purpose of bringing this lawsuit, which is not a permissible
purpose.
But it is not enough to fit literally into the statutorily cre-
ated cause of action. See Lexmark, 572 U.S. at 129. The zone-of-
interests test requires us to look at FCRA’s purpose to deter-
mine Congress’s intended scope. See id. at 131. Congress de-
scribed that purpose as “requir[ing] that consumer reporting
agencies adopt reasonable procedures . . . in a manner which
is fair and equitable to the consumer . . . .” 15 U.S.C. § 1681(b).
It also explained that “[t]here is a need to insure that con-
sumer reporting agencies exercise their grave responsibilities
with fairness, impartiality, and a respect for the consumer’s
right to privacy.” Id. § 1681(a)(4).
Nos. 18-3416 & 18-3405 19
These statutory provisions make clear that Congress
passed FCRA to protect consumers’ right to privacy in their
credit data. The statutory objective was to confer protections
on consumers, not to arm consumer reporting agencies with
rights against consumers. It follows, then, that Congress in-
tended to authorize consumers—not consumer reporting
agencies like Experian—to sue for violations of the Act. There
is no shortage of litigation under FCRA, yet Experian does not
point to a single example of FCRA being used offensively by
a consumer reporting agency against an individual consumer
in the manner pursued here—to recover defense costs. Nor
did our research uncover any such case. Adhering to the
teachings of Lexmark, we cannot conclude that Experian fits
within the zone of interests protected by FCRA and it there-
fore does not have a cause of action under § 1681n(b).
IV
We close by considering Crabtree’s challenge to the dis-
trict court’s order requiring him to pay for the deposition of
Experian’s expert. He sees the order as an abuse of discretion
because the court did not first perform its gatekeeping role of
determining that the expert’s proffered testimony would be
admissible at trial under the standards embodied in Federal
Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuti-
cals, Inc., 509 U.S. 579 (1993).
We find no abuse of discretion in this award. See Schrott v.
Bristol–Myers Squibb Co., 403 F.3d 940, 943 (7th Cir. 2005). Fed-
eral Rule of Civil Procedure 26(b)(4)(E) requires “the party
seeking discovery” to pay the expert a reasonable fee
“[u]nless manifest injustice would result.” Halasa v. ITT Educ.
Servs., Inc., 690 F.3d 844, 851 (7th Cir. 2012). Manifest injustice
is a high standard that is satisfied only in extraordinary
20 Nos. 18-3416 & 18-3405
circumstances. See Se-Kure Controls, Inc. v. Vanguard Products
Group, 873 F. Supp. 2d 939, 957 (N.D. Ill. 2012) (collecting ex-
amples of manifest injustice such as where a party made mis-
representations of its expert’s opinions). Nothing in the rec-
ord suggests that “manifest injustice” resulted from requiring
Crabtree to pay the expert fee. The expert’s fee, which the dis-
trict court reduced, was also reasonable.
Crabtree also misses the mark in contending that the dis-
trict court had to rule on his Daubert motion to exclude Ex-
perian’s expert testimony before considering Experian’s ap-
plication for costs under Rule 26(b)(4)(E). Not so. The Rule ap-
plies to any “expert whose opinions may be presented at
trial.” FED. R. CIV. P. 26(b)(4)(A) (emphasis added). The clear
import of Rule 26 is that the district court generally must or-
der a party to pay for the cost of deposing its adversary’s ex-
pert regardless of whether the expert’s opinion ultimately is
presented at trial. Had the claim gone to trial, Experian’s ex-
pert may have testified and the award of fees was therefore
appropriate.
For these reasons, we AFFIRM.