6th Cir. Says Procedural Harm under FDCPA Does Not Confer Art. III Standing; But the 10th Circuit Finds Standing

In Ward v. Nat’l Patient Account Servs. Sols., No. 20-5902, 2021 U.S. App. LEXIS 24369, at *9 (6th Cir. Aug. 16, 2021), the Court of Appeals for the 6th Circuit found no Article III standing for a pure procedural violation of the FDCPA.

To establish that the statutory violations here constitute concrete injury, Ward must show that NPAS, Inc.’s failure to disclose its full identity in its voice messages resembles a harm traditionally regarded as providing a basis for a lawsuit. TransUnion, 141 S. Ct. at 2204. A common-law or historical analogue need not be an “exact duplicate” to make this showing. Id. at 2209. Ward contends that NPAS, Inc.’s statutory violation is closely related to the harm of “invasion of privacy.” Actions to enforce the “right of privacy” have long been litigated in American courts, and the tort of intrusion upon one’s right to seclusion is recognized in most states. See Restatement (Second) of Torts § 652A (1977). And one of the purposes of the FDCPA is to stop abusive debt collection practices that contribute to “invasions of individual privacy.” 15 U.S.C. § 1692.  But comparing Ward’s alleged harm with the harm of invasion of privacy reveals why the latter is not an adequate historical analogue. Ward alleged that NPAS, Inc. failed to state its full name in voice messages, in violation of the FDCPA. HN10 Failing to receive full and complete information does not closely resemble intrusion upon seclusion, which generally requires a plaintiff to demonstrate that a defendant “intentionally intrude[d], physically or otherwise, upon the solitude or seclusion of another or his privacy affairs or concerns.” Restatement (Second) of Torts § 652B (1977). Had Ward claimed, for example, that NPAS, Inc. improperly shared personal information with a third party, 15 U.S.C. § 1692b, publicized his debts, id. § 1692d(3)-(5), or used language on a publicly viewable envelope that would identify him as a debtor, id. § 1692f(8), then Ward’s alleged harm would more closely resemble an invasion of [**7] privacy. By contrast, the mere failure to provide certain information does not mirror an intentional intrusion into the private affairs of another. Indeed, Ward alleged in his complaint that NPAS, Inc.’s violation, i.e., the use of an abbreviated name, confused him, not that it invaded his privacy.  Because the procedural injuries Ward asserts do not bear a close relationship to traditional harms, we conclude that he cannot demonstrate standing based upon the statutory violations alone.

In Lupia v. Medicredit, Inc., No. 20-1294, 2021 U.S. App. LEXIS 24547, at *15-16 (10th Cir. Aug. 17, 2021), the Court of Appeals for the 10th Circuit found Article III standing in an FDCPA case.

We find no merit in Medicredit’s argument that Ms. Lupia failed to allege a sufficient injury in her Complaint. See Appellant’s Supp. Br. at 4 (“[Ms. Lupia’s] Complaint does not allege that the phone call injured her or invaded her privacy.”). As noted, Ms. Lupia alleged in her Complaint that Medicredit caused her to suffer “intangible harms” that Congress “made legally cognizable in passing the FDCPA.” Appellant’s App. vol. 1 at 7 (citations omitted); see also S. Utah Wilderness All. v. Palma, 707 F.3d 1143, 1152-53 (10th Cir. 2013) (“[W]e examine the . . . complaint in assessing a plaintiff’s [*16] claims, including the allegations in support of standing.” (internal quotation marks and citation omitted)). Coupled with Ms. Lupia’s factual allegations about the receipt of an unwanted phone call and voicemail, her allegations suffice. Indeed, Ms. Lupia asserted the same privacy interests when Medicredit contested her standing in its motion for summary judgment. Finally, we are unpersuaded by Medicredit’s argument that the Seventh Circuit’s recent standing cases apply. See, e.g., Appellant’s Supp. Br. at 2-5 (citing Pennell v. Glob. Tr. Mgmt., LLC, 990 F.3d 1041 (7th Cir. 2021); Larkin v. Fin. Sys. of Green Bay, Inc., 982 F.3d 1060 (7th Cir. 2020); Brunett v. Convergent Outsourcing, Inc., 982 F.3d 1067 (7th Cir. 2020)). For one, those cases predate the Supreme Court’s decision in TransUnion in which the Court clarified the Spokeo standing requirements, including that the tort of intrusion upon seclusion is recognized as an intangible harm providing a basis for a lawsuit in American courts. See TransUnion LLC, 141 S. Ct. at 2204-14. Further, none of the Seventh Circuit cases address § 1692g(b). And though Pennell analyzes § 1692c(c), it dealt with a plaintiff’s complaints of “stress and confusion”—not an invasion of privacy. 990 F.3d at 1045. Likewise, we determine that Ms. Lupia has satisfied the injury-in-fact requirement. We therefore conclude that we are empowered to consider the merits of Ms. Lupia’s claims. See TransUnion LLC, 141 S. Ct. at 2203 (citation omitted).