United States District Court, N.D. Illinois, Eastern Division
DANIEL HERNANDEZ, on behalf of himself and all others similarly situated, Plaintiff,
MIDLAND CREDIT MANAGEMENT, INC., Defendant.
MEMORANDUM AND ORDER
B. Gottschall United States District Judge
Daniel Hernandez (“plaintiff”) brings this civil
action against defendant Midland Credit Management
(“defendant”), alleging violations of the Fair
Debt Collection Practices Act (“FDCPA”), 15
U.S.C. §§ 1692, et seq. Plaintiff alleges
that a dunning letter sent to him on October 5, 2015, was
false and misleading in a number of respects. Defendant has
moved to dismiss on the basis of lack of subject matter
jurisdiction, arguing that the Supreme Court's decision
in Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547
(2016), makes plain that plaintiff has not suffered
sufficient injury to establish standing in this case.
See Fed. R. Civ. P. 12(b)(1). For the reasons set
forth below, defendant's motion is denied.
in Article III of the Constitution, the requirement that a
litigant have standing consists of three elements which the
plaintiff must establish by facts demonstrating each element:
the plaintiff must have suffered an injury in fact, the
injury must be fairly traceable to the challenged conduct of
the defendant, and the injury must be likely to be redressed
by a favorable judicial decision. Spokeo, 136 S.Ct.
at 1547; Lardas v. Grcic, 847 F.3d 561, 566 (7th
Cir. 2017) (citing Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)).
Spokeo, an alleged consumer reporting agency, generated a
profile of plaintiff Thomas Robins allegedly containing
inaccurate information. Spokeo, 136 S.Ct. at 1546.
Robins sued under the Fair Credit Reporting Act of 1970
(“FCRA”), 15 U.S.C. § 1681 et seq., which
requires, among other things, that consumer reporting
agencies follow reasonable procedures to assure the accuracy
of consumer reports. The district court dismissed for lack of
standing, but the Ninth Circuit reversed, holding that Robins
had adequately alleged injury-in-fact in that his own
statutory rights had been violated and he had a personal
interest in the handling of his credit information.
Spokeo, 136 S.Ct. at 1546. The Supreme Court held
that the Ninth Circuit's analysis was incomplete in that,
while it adequately addressed the second prong of the
injury-in-fact requirement, particularity, it overlooked the
first prong, concreteness. See Id. at 1547-48. The
Supreme Court vacated the decision and remanded for
consideration of the concreteness requirement. Id.
concerned the first of standing's elements, the
requirement of injury-in-fact. To establish injury-in-fact,
Spokeo holds, the plaintiff must show that he
suffered an invasion of a legally protected interest that is
both concrete and particularized, and actual or imminent, not
conjectural or hypothetical. 136 S.Ct. at 1548. To be
particularized, an injury must affect the plaintiff in a
personal and individual way. Id. To be concrete, an
injury “must actually exist, ” and be real and
not abstract. Id. This does not mean, however, that
the injury must be tangible. Intangible injuries can also
satisfy the concreteness test. To determine if they do, both
history and the judgment of Congress should be considered.
Historically, the court should consider whether the alleged
intangible harm has a close relationship to a harm that has
traditionally been regarded as the basis for a lawsuit.
Id. And because Congress is well-positioned to
identify intangible harms that meet Article III requirements,
its judgment should be considered. Assuming compliance with
standing principles, Congress may elevate to the status of
legally cognizable injuries concrete injuries that were
previously inadequately addressed in the law. Id. at
case at bar, the injury alleged is both particularized and
concrete. It is particularized because the allegedly improper
dunning letter was sent directly to plaintiff, in violation
of his personal rights. And it is concrete, for reasons
explained best in the statute at issue, 15 U.S.C §
1692(a), in which Congress articulates its findings that
“[t]here is abundant evidence of the use of abusive,
deceptive, and unfair debt collection practices by many debt
collectors.” Such practices “contribute to the
number of personal bankruptcies, to marital instability, to
the loss of jobs, and to invasions of individual
numerous cases make clear, an injury is adequately concrete
as long as there is some “appreciable risk of
harm” to the plaintiff. Haddad v. Midland Funding,
LLC, No. 16 C 3942, 2017 WL 1550187, at *2 (N.D. Ill.
May 1, 2017) (citing Spokeo and collecting Seventh
Circuit cases holding that an injury was “too
ethereal”); see also Eike v. Allergan, Inc.,
850 F.3d 315, 317 (7th Cir. 2017) (finding no standing based
on mere dissatisfaction with product and observing, in
apparent contrast, that the plaintiff did not make “any
claim that the defendants misrepresent the quality of their
product”). In § 1692(b), Congress explicitly
found that “[e]xisting laws and procedures for
redressing these injuries are inadequate to protect
consumers.” Under Spokeo, Congress'
finding alone cannot be decisive on the standing question,
but it “play[s] an important role, ” along with
the historical right to sue based on similar confusing,
misleading, and deceptive practices at which Congress took
aim when it enacted the FDCPA. Spokeo, 136 S.Ct. at
1549 (stating that Congress' enactment of a statute does
not automatically satisfy the injury-in-fact requirement).
the parties completed briefing these issues, many FDCPA cases
have been decided by courts in this circuit. After canvassing
Congress' findings, historical practice, and the Supreme
Court's standing decisions, these cases uniformly
conclude that FDCPA claims satisfy Spokeo's
standing requirements. See, e.g., Dunham v.
Robert Crane & Assocs., LLC, No.
1:16-cv-2100-SEB-MPB, 2017 WL 2664287, at *4 (S.D. Ind. June
20, 2017) (“[S]everal district courts within the
Seventh Circuit as well as other circuit courts have
consistently held that violations of the FDCPA constitute
concrete injuries-in-fact sufficient to support Article III
standing”); Pogorzelski v. Patenaude & Felix
APC, No. 16-C-1330, 2017 WL 2539782, at *3 (E.D. Wis.
June 12, 2017) (“[N]umerous other courts, including
courts in this circuit and from around the country, have
rejected Spokeo-based standing challenges in the
context of FDCPA violations”); Haddad, 2017 WL
1550187, at *3 (“The value of receiving truthful
information about one's financial affairs-and the ill
effects of receiving misleading information-may be hard to
quantify, especially where, as here, the plaintiff did not
act upon the misinformation. But being lied to in violation
of an anti-trickery statute like the FDCPA is a concrete harm
considered Congress' findings in § 1692, the
relationship of the trickery targeted by the FDCPA to
intangible harms which have historically conferred standing
to sue, and the risk of harm to consumers who receive
inaccurate or inadequate collection letters from debt
collectors, this court is persuaded by the reasoning of the
cases discussed above. For these reasons, defendant's
Motion to Dismiss, ECF No. 36, is denied.
 The Seventh Circuit applied
Spokeo in Meyers v. Nicolet Rest. of De Pere,
LLC,843 F.3d 724 (7th Cir. 2016), cert.
denied, No. 16-1113, 2017 WL 1001378 (June 19, 2017),
cited by defendant in its Motion to Cite Additional
Authority, ECF No. 51. Meyers is far more like
Spokeo than is the case at bar. Meyers complained of
a violation of the Fair and Accurate Credit Transactions Act
(FACTA) in that defendant had failed to truncate the
expiration date on plaintiff's credit card receipt, as
FACTA requires. The Seventh Circuit, applying
Spokeo, concluded that Meyer had suffered neither
harm nor an appreciable risk of harm since he discovered the
violation immediately before anyone else could see the
non-compliant receipt. If that were not enough, Congress had
declared that proper truncation of the card number,
regardless of the inclusion of the expiration date, obviates
any risk of identity theft. In the case at bar, in contrast,
defendant is alleged to have provided plaintiff with false
information, putting him at risk of falling victim to all the
ills detailed in § 1692. The fact that ...