Alison George v. Rushmore Service Center LLC

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 23-2189

________________

ALISON GEORGE,

Appellant

v.

RUSHMORE SERVICE CENTER, LLC;

MILES K. BEACOM; DALE DOBBERPUHL;

THOMAS D. SANFORD; JOHN DOES 1 to 10

________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 2-18-cv-13698)

District Judge: Honorable William J. Martini

________________

Argued on May 2, 2024

Before: KRAUSE, CHUNG, and RENDELL, Circuit Judges

(Opinion filed: August 13, 2024)

Yongmoon Kim

Philip D. Stern [ARGUED]

Kim Law Firm

411 Hackensack Avenue

Suite 701

Hackensack, NJ 07601

Counsel for Appellant

Daniel McKenna [ARGUED]

Ballard Spahr

1735 Market Street

51st Floor

Philadelphia, PA 19103

William P. Reiley

Ballard Spahr

700 E Gate Drive

Suite 330

Mount Laurel, NJ 08054

Counsel for Appellees

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OPINION OF THE COURT

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KRAUSE, Circuit Judge.

For almost six years now, Appellant Alison George has

been seeking to represent a class and obtain damages from

2

Rushmore Service Center, LLC,1 based on a letter naming the

collection arm of George’s credit card company, rather than the

credit card company itself, as the “current/original creditor.”

App. 36 (capitalization altered). As alleged in the operative

complaint, that phrasing violated the Fair Debt Collection

Practices Act (FDCPA) by failing to identify “the creditor to

whom the debt [was] owed” and providing “false, deceptive,

or misleading” information. 15 U.S.C. §§ 1692e, 1692g(a)(2).

And as alleged by way of injury, these violations would have

left “the least sophisticated consumer” confused about “to

whom the alleged debt [was] owed and if it [was] legitimate.”

App. 28. After the District Court granted Rushmore’s motion

to stay proceedings and compel individual arbitration, George

lost before the arbitrator, who ruled in Rushmore’s favor, and

before the District Judge, who declined to vacate the arbitration

award. On appeal, George challenges the merits of those

rulings.

As it turns out, however, the main question on appeal is

not related to the merits. Instead, it is whether these many

years of litigation have been much ado about nothing. For

while George’s suit was proceeding, we issued two opinions—

Kelly v. RealPage Inc., 47 F.4th 202 (3d Cir. 2022), and

Huber v. Simon’s Agency, Inc., 84 F.4th 132 (3d Cir. 2023)2—

calling into question whether confusion alone is sufficient to

allege a concrete injury in this context. Because we conclude

1

Where relevant, we use “Rushmore” to refer to both

Rushmore and the Rushmore officers named in the amended

complaint.

2

Both Kelly and Huber have “full retroactive effect in all cases

still open on direct review.” Harper v. Va. Dep’t of Tax’n, 509

U.S. 86, 97 (1993).

3

that George lacked standing from the very outset, we must

vacate the District Court’s orders and remand with instructions

to dismiss George’s case. But as it may be that the arbitration

award “can be enforced in a jurisdictionally correct

proceeding,” Brown v. Francis, 75 F.3d 860, 868 (3d Cir.

1996), we will decline to vacate the award itself at this

juncture.

I. Background

A. The Rushmore Letter

In 2013, Alison George opened a credit card account

with First Premier Bank. Under that account’s contract, which

became binding on George shortly after her enrollment,

George agreed to resolve all account-related claims via

individual arbitration. The arbitration provision covered

George, First Premier, First Premier’s “employees, parents,

subsidiaries, affiliates, beneficiaries, agents and assigns,” and

the “employees, parents, subsidiaries, affiliates, beneficiaries,

agents and assigns” of those entities. App. 109.

A few months after First Premier issued George’s credit

card, George defaulted on her account by failing to make the

minimum required payment. This failure to pay triggered First

Premier’s collection apparatus, run through servicing entity

Premier Bankcard, LLC. Notably, Premier Bankcard does not

perform all of its own collection work. Instead, it outsources

some of that work to corporations like Rushmore. A 2011

contract between Premier Bankcard and Rushmore, for

example, obligated Rushmore to “undertake the collection of

such . . . [First Premier] accounts as [Premier Bankcard chose]

4

to place with [Rushmore] for the purpose of collection.”3 Id.

at 79.

In the 2011 contract, Rushmore agreed to contact its

First Premier accounts “through collection letters as well as

consistent direct telephone contact to maximize recovery.” Id.

Consistent with this commitment, and with Premier

Bankcard’s apparent assignment of George’s account to

Rushmore, Rushmore sent George a collection letter in April

2018. That letter, which was Rushmore’s first communication

to George, contained the following header: “Current/Original

Creditor: PREMIER Bankcard, LLC.” Id. at 36.

B. The Instant Suit

In the amended complaint, the operative complaint in

this case,4 George alleged that Rushmore’s April 2018 letter

was (1) “confusing as to whether” Premier Bankcard was the

current or original creditor, and (2) misleading in any event,

because First Premier, not Premier Bankcard, was “the current

creditor to whom the debt [was] owed” and the “original

creditor” of the account. Id. at 28. On that basis, George

3

In exchange, Rushmore would receive a commission based

on the amount collected.

4

Around the same time George received her letter, another

First Premier customer, Josephine Tailor, received a similar

letter from Rushmore. Tailor filed a class-action complaint

against Rushmore in the District of New Jersey in September

2018, and the amended complaint (filed two months later)

added George as a plaintiff. The District Court dismissed

Tailor’s claims with prejudice when she passed away in August

2019, leaving George as the only putative class representative.

5

claimed—on behalf of herself and a putative class of those who

received similar letters—that the letter violated the FDCPA.

Specifically, George claimed that the letter failed to identify

“the name of the creditor to whom the debt [was] owed” as

required by law, 15 U.S.C. § 1692g(a)(2); that it constituted a

“false, deceptive, or misleading representation . . . in

connection with the collection of [a] debt,” id. § 1692e; and

that it used “unfair or unconscionable means to collect or

attempt to collect [a] debt,” id. § 1692f.

As to George’s individual injury, however, the

complaint was oddly silent. It alleged that George “received

and reviewed the [April 2018] letter,” App. 28, but it did not

allege any consequences for George as a result of that receipt

and review. And even as the complaint alleged that the letter

was “confusing” and would “leave the least sophisticated

consumer in doubt about to whom the alleged debt is owed and

if it is legitimate,” id., it omitted any allegation that George

herself was confused.

In May 2020, after limited discovery regarding

arbitrability, the District Court granted Rushmore’s motion to

compel arbitration and stay proceedings under sections 3 and 4

of the Federal Arbitration Act (FAA), 9 U.S.C. §§ 3–4.5

Rejecting George’s arguments to the contrary, the Court held

that (1) Rushmore could enforce the arbitration provision

because it was Premier Bankcard’s agent, Premier Bankcard

5

At that point, the Supreme Court had not yet issued its

seminal decision in TransUnion LLC v. Ramirez, 141 S. Ct.

2190 (2021). Neither party challenged standing before the

District Court, and the District Court declined to consider it sua

sponte.

6

being a First Premier affiliate, and (2) the arbitration provision

covered George’s FDCPA claims, which “unquestionably”

related to her credit card account. George v. Rushmore Serv.

Ctr., LLC, No. 18-cv-13698, 2020 WL 2319293, at *2–3

(D.N.J. May 11, 2020). The Court therefore ordered George

to “submit her claim[s] to [individual] arbitration or notify the

Court of her intention not to do so” within 60 days. App. 3.

C. Arbitration Proceedings

Rather than notifying the Court of her intent not to

arbitrate, George filed an arbitration demand against Rushmore

with the American Arbitration Association (AAA).6 The

parties engaged in “extensive discovery,” Answering Br. 8, and

in June 2022, the arbitrator rejected George’s attempt to

relitigate arbitrability and ordered a hearing to resolve the

FDCPA claims on the merits.7 At that hearing, which took

place in October 2022, the arbitrator “heard testimony from

three witnesses, received twenty-two exhibits, and heard oral

argument” on contested legal issues over the course of five

hours. Id. at 9. The parties later filed post-hearing

submissions.

6

George initially filed a timely arbitration demand with JAMS,

but she refiled with the AAA after Rushmore objected. After

a dismissal without prejudice (followed by refiling) and a stay,

arbitration proceedings began in earnest in January 2022.

7

The arbitrator, in effect, denied summary judgment, finding

genuine issues of material fact as to whether Premier Bankcard

was also a creditor and whether “the formatting of

original/current creditor was misleading.” App. 102.

7

The arbitrator issued his “final and binding” decision in

November 2022. App. 112. In that decision, which awarded

George $0, the arbitrator found that Rushmore was not liable

for two reasons. First, by George’s own admission, she never

read the April 2018 letter: She stated during the hearing that

“she did not read the Rushmore [letter] and, in fact, was

essentially not reading debt collection letters generally, but

rather passing them on to her attorney.” Id. at 106. Even if the

letter was misleading, the arbitrator reasoned, George herself

“could not have actually been misled.” Id. (emphasis omitted).

Second, the letter itself was not misleading: Because Premier

Bankcard serviced George’s account and “received and was

entitled to part of the funds from payments made by [George]

on [that] account,” it was at least a current creditor, and could

therefore be listed as a “current/original, meaning current or

original,” creditor. Id. at 107. On the whole, the arbitrator

concluded, George did not meet her “affirmative burden of

proof to show . . . violations of the FDCPA.” Id. at 106.

D. The Motion to Vacate

George returned to the District Court shortly after the

arbitrator issued his decision, asking the Court to vacate the

arbitration award pursuant to 9 U.S.C. § 10. In her motion to

vacate, George challenged arbitrability for a third time, arguing

that Rushmore was not a Premier Bankcard agent and therefore

could not enforce the arbitration provision. She also argued

that the arbitrator “failed to consider the relevant evidence,”

“manifestly disregard[ed] the controlling law,” and, based on

these factors, “exhibited evident bias” toward Rushmore.

Suppl. App. 127.

8

The District Court once again disagreed. In its opinion

and order of May 2023, the Court (1) declined to reconsider its

prior arbitrability ruling, and (2) found that the arbitrator

“properly considered the evidence before him” and properly

applied the law. George v. Rushmore Serv. Ctr., LLC, No. 18-

cv-13698, 2023 WL 3735977, at *2–3 (D.N.J. May 30, 2023).

The Court accordingly denied George’s motion to vacate.8 Id.

at *4.

George timely appealed both the May 2020 order

compelling arbitration and the May 2023 order declining to

vacate the arbitration award.

II. Discussion

A. Jurisdiction

The District Court had putative jurisdiction under 15

U.S.C. § 1692k(d) and 28 U.S.C. § 1331, and we have

jurisdiction to review final orders under, among other statutes,

28 U.S.C. § 1291. But in this case we must assure ourselves of

both finality and George’s Article III standing, as the two are

intertwined. See Hartig Drug Co. v. Senju Pharm. Co., 836

F.3d 261, 269 (3d Cir. 2016). Assuming the District Court’s

orders are final, we cannot avoid the question of standing as

we did in O’Hanlon v. Uber Technologies, Inc., an

interlocutory appeal. See 990 F.3d 757, 762–66, 766 n.4 (3d

Cir. 2021).

8

Although both TransUnion and Kelly had been decided by

this point, the District Court again did not consider standing

sua sponte.

9

We conclude that the May 2023 order declining to

vacate the arbitration award is final for two reasons. First, the

May 2023 order did exactly what is required for finality under

§ 1291: It “terminate[d] the litigation between the parties on

the merits” and left nothing to do but “enforce by execution

what has been determined.” Robinson v. Hartzell Propeller,

Inc., 454 F.3d 163, 168 (3d Cir. 2006) (quotation marks

omitted). Although it is true that the District Court neither

confirmed the arbitration award nor entered judgment for

Rushmore before terminating the case, an order can be final

under § 1291 when it leaves nothing “for the district court to

do but . . . confirm the arbitration award and enter judgment.”

Alpine Glass, Inc. v. Ill. Farmers Ins. Co., 643 F.3d 659, 663–

64 (8th Cir. 2011). That is the situation here.9

Second, even if the order declining to vacate were not

final under § 1291, it would be final and appealable under 9

U.S.C. § 16(a)(3). That section allows for the appeal of a “final

decision respecting . . . arbitration,” and an order declining to

vacate an arbitration award is one such “final decision.”

Century Indem. Co. v. Certain Underwriters at Lloyd’s, 584

F.3d 513, 521 (3d Cir. 2009); accord, e.g., Selden v. Airbnb,

Inc., 4 F.4th 148, 155 (D.C. Cir. 2021); United States v. Park

Place Assocs., Ltd., 563 F.3d 907, 919–20 (9th Cir. 2009).

Even though § 16 does not contain an explicit grant of appellate

jurisdiction, we have treated it as a jurisdiction-conferring

9

To the extent Rushmore’s ability to file a motion to confirm

affected finality, it no longer does. Such a motion must be

made “within one year after the award is made,” and more than

a year has passed since the arbitration award became final. 9

U.S.C. § 9; see Aluminum Co. of Am. v. Beazer E., Inc., 124

F.3d 551, 557 (3d Cir. 1997).

10

provision in the past. See, e.g., Lloyd v. HOVENSA, LLC, 369

F.3d 263, 268 (3d Cir. 2004). This makes sense as a practical

matter: Because many appealable orders listed in § 16(a)(1) are

not covered by 28 U.S.C. § 1292, a contrary determination

would render the language that an appeal “may be taken from”

such orders without effect. 9 U.S.C. § 16(a).

The order declining to vacate the arbitration award is

thus final, and the order compelling arbitration is final because

“it [has] merged with [that] final order.” Sapp v. Indus. Action

Servs., LLC, 75 F.4th 205, 210 (3d Cir. 2023); see R & C

Oilfield Servs. LLC v. Am. Wind Transp. Grp. LLC, 45 F.4th

655, 659 (3d Cir. 2022).

Having ascertained that the relevant orders are final and

appealable, we must next consider Article III standing, which

“is essential to federal subject matter jurisdiction.” Hartig

Drug, 836 F.3d at 269. We turn to that question now,

recognizing the “familiar” principle that we “always [have]

jurisdiction to determine [our] own jurisdiction.” United

States v. Ruiz, 536 U.S. 622, 628 (2002).

B. Standing

Both George and Rushmore assert that George has, and

had, standing. That does not, however, end the inquiry:

Standing is a “threshold jurisdictional requirement,” and we

have a “bedrock obligation to examine both [our] own subject

matter jurisdiction” and that of the District Court. Pub. Int.

Rsch. Grp. of N.J., Inc. v. Magnesium Elektron, Inc., 123 F.3d

111, 117 (3d Cir. 1997). Our independent review reveals that,

based on the amended complaint, George lacks standing under

Article III and lacked standing below.

11

1. Applicable Law

In order to show standing, a plaintiff bears the burden

of establishing three distinct elements:

First, the plaintiff must have suffered an injury in

fact—an invasion of a legally protected interest

which is (a) concrete and particularized; and

(b) actual or imminent, not conjectural or

hypothetical. Second, there must be a causal

connection between the injury and the conduct

complained of—the injury has to be fairly

traceable to the challenged action of the

defendant, and not the result of the independent

action of some third party not before the court.

Third, it must be likely, as opposed to merely

speculative, that the injury will be redressed by a

favorable decision.

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)

(cleaned up). The first element is most relevant here, and three

cases—TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021),

Kelly, 47 F.4th 202, and Huber, 84 F.4th 132—bear heavily on

our analysis. So we briefly recap those cases.

In TransUnion, the Supreme Court clarified that the

“[c]entral” question when assessing concreteness is “whether

the asserted harm has a close relationship to a harm

traditionally recognized as providing a basis for a lawsuit in

American courts—such as physical harm, monetary harm, or

various intangible harms including . . . reputational harm.” 141

S. Ct. at 2200 (quotation marks omitted). Based on this

12

principle, the Supreme Court concluded that plaintiffs whose

misleading credit reports “were disseminated to third-party

businesses . . . suffered a concrete harm” qualifying as an injury

in fact; these plaintiffs, the Court reasoned, had been subjected

to “reputational harm associated with the [traditional] tort of

defamation.” See id. at 2208–09. Plaintiffs whose credit

reports contained misleading information but were not

disseminated, on the other hand, suffered no concrete harm and

lacked standing to sue under the Fair Credit Reporting Act

(FCRA). See id. at 2209–13.

In Kelly, we examined TransUnion in the context of

“informational injury,” the injury that occurs when “a

plaintiff . . . fail[s] to receive information to which she is

legally entitled.” 47 F.4th at 211 (cleaned up). We first noted

that informational injury can be “sufficiently concrete to confer

standing,” and that TransUnion did not disturb that basic

premise. See id. at 211–13, 212 n.8. We then, in light of

TransUnion, articulated what is required for informational

injury: A plaintiff must show “(1) the omission of information

to which [she] claim[s] entitlement, (2) adverse effects that

flow from the omission, and (3) [a] nexus to the concrete

interest Congress intended to protect” by requiring disclosure

of the information. Id. at 214 (quotation marks omitted). We

ultimately found informational injury because (1) the

defendant did not disclose required source information, (2) as

a result, both plaintiffs were denied apartments for which they

applied, one plaintiff needlessly wasted his time and suffered

confusion and distress, and one plaintiff could only secure

public housing, and (3) the failure to disclose frustrated

Congress’s goal, under FCRA, of “empowering consumers to

correct inaccurate information in their credit files.” Id. at 214–

15 (cleaned up).

13

In Huber, another case arising under the FDCPA, we

distinguished Kelly and clarified that the informational-injury

doctrine does not “extend . . . to the failure to disclose clearly

and effectively.” 84 F.4th at 146 (emphasis omitted). Because

the plaintiff in Huber alleged an “unclear disclosure[]” rather

than a “failure to disclose,” we held that she did not suffer an

informational injury and could not claim standing on that

ground. Id. at 145–46. Nonetheless, we concluded that Huber

had Article III standing “under traditional standing principles”

because she suffered two financial consequences from the

unclear disclosure: “one in consulting with her financial

advisor . . . at her own additional cost, and the other in her

failure to pay down her debts or otherwise take appropriate

action beyond that consultation.” Id. at 149 (quotation marks

omitted). These “detrimental consequences,” we wrote, were

“sufficiently similar to the kind of harm protected by the tort

of fraudulent misrepresentation”—the most “apt analogue” to

Huber’s FDCPA claim—“to establish . . . standing.” Id. at

148–49.

As relevant here, Huber highlighted the importance of

financial or other detrimental consequences to establishing

traditional standing under the FDCPA. “[T]he harm

traditionally recognized as providing a basis for fraudulent

misrepresentation,” we wrote, “is not the mere receipt of a

misleading statement, or even confusion, without any further

consequence.” Id. at 148 (cleaned up). Instead, a claimant in

Huber’s shoes “must identify . . . a consequential action or

inaction following receipt of a misleading or deceptive

collection letter” to demonstrate injury in fact. Id. at 149

(quotation marks omitted). “[C]onfusion alone” is insufficient.

Id. at 141.

14

2. George’s Standing

With those precepts in mind, we turn to George’s case.10

Her amended complaint asserts two different theories of harm:

one, that George did not receive information to which she was

legally entitled, and two, that the April 2018 letter was “false,

deceptive, and misleading” in violation of the FDCPA. App.

28. Although the first sounds in informational injury and the

second in traditional injury, George has not established

standing under either theory.

a. Informational Injury

As noted, a plaintiff asserting informational injury must

show “(1) the omission of information to which [she] claim[s]

entitlement, (2) adverse effects that flow from the omission,

and (3) [a] nexus to the concrete interest Congress intended to

protect” by requiring disclosure of the information. Kelly, 47

F.4th at 214 (quotation marks omitted). George has alleged

10

We take this opportunity to correct an apparent

misapprehension. In its briefing, Rushmore suggests George’s

admission during arbitration—that she never read the April

2018 letter—might somehow operate to retroactively deprive

her of standing. Not so. We look to the amended complaint to

assess standing at the outset, and for purposes of our analysis

we accept as true the allegation that George “received and

reviewed the . . . letter.” App. 28; see, e.g., N. Jersey Brain &

Spine Ctr. v. Aetna, Inc., 801 F.3d 369, 371 (3d Cir. 2015).

Because we hold that George lacks (and lacked) standing based

solely on the amended complaint, we need not determine

whether and how her later admission affects the standing

inquiry.

15

enough to get past prong one: Read fairly, her complaint

indicates that Premier Bankcard was not, as required by 15

U.S.C. § 1692g(a)(2), “the creditor to whom the debt [was]

owed.”11 But her standing argument falters at prong two.

That is because the amended complaint does not allege

specific adverse effects flowing from the omission; instead, it

simply states that the April 2018 letter would have left “the

least sophisticated consumer in doubt about to whom the

alleged debt [was] owed and if it [was] legitimate.” App. 28.

Nothing in the complaint indicates that George could not pay

her debt as a result of the letter, that the omission caused

downstream financial consequences, or that George suffered

distress.12 Cf. Kelly, 47 F.4th at 214 (listing adverse effects).

And even if confusion alone were sufficiently adverse to

demonstrate informational injury, but see Huber, 84 F.4th at

148–49, the complaint does not even allege George herself was

confused. George’s first theory of harm thus fails under our

test in Kelly, and George has not shown an informational injury

sufficient to confer Article III standing.

11

We now know that Premier Bankcard was likely entitled to

a share of George’s debt, making it a creditor for FDCPA

purposes. See 15 U.S.C. § 1692a(4). But we again accept as

true, for purposes of our analysis, the allegation that Premier

Bankcard was neither a current nor an original creditor.

12

True, George alleges that her First Premier account was past

due and in default. But we cannot infer adverse effects from

that allegation alone—doing so would vitiate the second prong

of Kelly, since nearly every FDCPA claim involves an in-

default or past-due account. For the same reason, the filing of

this lawsuit cannot constitute an adverse effect.

16

b. Traditional Injury

George’s second theory of harm fares no better. Under

the “more traditional path prescribed by the Supreme Court in

TransUnion,” we must ask whether the injury alleged “has a

close relationship to a harm traditionally recognized as

providing a basis for a lawsuit in American courts.” Huber, 84

F.4th at 146 (quotation marks omitted). As we clarified in

Huber, a violation of 15 U.S.C. § 1692e is analogous to the tort

of fraudulent misrepresentation,13 and “the harm traditionally

recognized as providing a basis for [a] fraudulent

misrepresentation [suit] . . . is not the mere receipt of a

misleading statement, or even confusion, without any further

consequence.” Id. at 148 (cleaned up). Yet “the mere receipt

of a misleading statement” is all George has alleged: The

amended complaint does not indicate George suffered

confusion, let alone any sort of “cognizable harm . . . flow[ing]

from that confusion.” Id. at 148–49. Accordingly, George has

not shown an injury in fact under Huber and TransUnion, and

she lacks Article III standing under the “more traditional”

approach in those cases. Id. at 146.

George attempts to evade this holding in Huber by

arguing that “unreasonable debt collection,” not fraudulent

misrepresentation, is the most appropriate tort analogue for

FDCPA claims. Opening Br. 4. Because unreasonable debt

collection is an intentional tort that “gives rise to nominal and

punitive damages without the need to allege any tangible harm

13

George also alleges “unfair or unconscionable” practices in

violation of 15 U.S.C. § 1692f, but that claim is entirely

dependent on her § 1692e claim and rests on the same theory

of harm.

17

or actual damages,” George says, the “harm traditionally

recognized as providing a basis for [an unreasonable-debt-

collection] lawsuit in American courts” is essentially the fact

of the occurrence. Id. at 6 (emphasis omitted); TransUnion,

141 S. Ct. at 2200. Thus, in George’s view, the injury she has

alleged—receipt of a misleading letter—is sufficiently

concrete to constitute injury in fact.

Even assuming, arguendo, that unreasonable debt

collection is an “apt analogue” for a violation of § 1692e,

George’s argument lacks merit.14 Huber, 84 F.4th at 148. As

far as we can tell, the freestanding tort of unreasonable debt

collection first appeared in the 1950s and is recognized only in

one jurisdiction—Texas. Boe W. Martin, A Creditor’s

Liability for Unreasonable Collection Efforts: The Evolution

of a Tort in Texas, 9 S. Tex. L.J. 127, 130–32 (1966); see also,

e.g., Church v. Collection Bureau of Hudson Valley, Inc.,

No. 20-cv-03172, 2023 WL 8185669, at *7–8 (D.N.J. Nov. 27,

2023). We cannot say, based on this fact, that the harm

associated with unreasonable debt collection was

“traditionally recognized as providing a basis for a lawsuit in

American courts.”15 TransUnion, 141 S. Ct. at 2200 (emphasis

14

The law firm representing George has repeatedly tried to

argue traditional standing based on the tort of unreasonable

debt collection, and courts have repeatedly rejected those

efforts. See, e.g., Chang v. Frontline Asset Strategies, LLC,

No. 18-cv-02388, 2024 WL 1209184, at *3–5 (D.N.J. Mar. 21,

2024); Church v. Collection Bureau of Hudson Valley, Inc.,

No. 20-cv-03172, 2023 WL 8185669, at *4–15 (D.N.J.

Nov. 27, 2023). We do the same here.

15

The sources cited by George are not to the contrary. George

states that “there are many reported decisions from the

18

added). And in any event, one element of the tort seems to be

that “the unreasonable collection efforts were a proximate

cause of physical illness and mental and emotional pain.” See

Church, 2023 WL 8185669, at *5 (cleaned up) (citing Texas

cases). The harm associated with unreasonable debt collection

would thus be “physical illness and mental and emotional

pain,” id. (quotation marks omitted), not just the receipt of a

misleading letter. George has not come close to alleging that

harm.

* * *

In sum, because George’s amended complaint alleges

neither an informational injury nor a traditional one, George

lacks standing before us and lacked standing before the District

Court. See Lutter v. JNESO, 86 F.4th 111, 124 (3d Cir. 2023)

(“[T]he general rule is that a plaintiff in federal court must have

Article III standing on the date the lawsuit was commenced.”).

We proceed to consider how this lack of standing affects the

District Court’s orders compelling arbitration and denying

vacatur.

nineteenth and twentieth centuries” classifying unreasonable

debt collection as a separate tort. Opening Br. 4. But the article

she cites in support of that proposition discusses intentional

infliction of emotional distress as related to debt collection, not

unreasonable debt collection itself. See Calvert Magruder,

Mental and Emotional Disturbance in the Law of Torts, 49

Harv. L. Rev. 1033, 1063–64 (1936). The same is true of the

Restatement illustrations George flags. See Restatement

(Second) of Torts § 46 illus. 7–8 (Am. L. Inst. 1965).

19

C. The District Court’s Orders

The FAA is “something of an anomaly in the field of

federal-court jurisdiction,” in that it “bestow[s] no federal

jurisdiction but rather require[s] an independent jurisdictional

basis.” Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576,

581–82 (2008) (quotation marks omitted). For a federal court

to have jurisdiction over a motion to compel arbitration, it must

be that the “entire . . . controversy between the parties . . . could

be litigated in federal court” without the arbitration agreement.

Vaden v. Discover Bank, 556 U.S. 49, 66 (2009) (quotation

marks omitted); see 9 U.S.C. § 4. We must, in other words,

“look through” a motion to compel and find a jurisdictional

basis for the underlying suit. Vaden, 556 U.S. at 66. And a

motion to vacate must identify a “grant of jurisdiction, apart

from [the FAA] itself, conferring access” to a federal forum;

there is no look-through approach for such a motion.

Badgerow v. Walters, 142 S. Ct. 1310, 1315–18 (2022)

(quotation marks omitted); see 9 U.S.C. § 10.16

Here, because George lacked standing at the outset of

her suit, the District Court could not properly exercise

jurisdiction under 15 U.S.C. § 1692k(d) or 28 U.S.C. § 1331.

See Hartig Drug, 836 F.3d at 269. And because the District

Court could not properly exercise jurisdiction under either

statute, it lacked jurisdiction over the “controversy between the

16

Of course, if a district court has an independent jurisdictional

basis, such as 28 U.S.C. § 1331, to hear a suit, that court’s

jurisdiction “continues over” both a motion to compel and a

subsequent motion to vacate. See, e.g., Kinsella v. Baker

Hughes Oilfield Operations, LLC, 66 F.4th 1099, 1103 (7th

Cir. 2023).

20

parties” and the motion to compel.17 See Vaden, 556 U.S. at

66 (quotation marks omitted). Similarly, because (1) the

District Court lacked jurisdiction over the suit, and

(2) George’s motion to vacate identifies no “grant of

jurisdiction” beyond the FAA, the District Court had no

jurisdiction to consider that motion.18 Badgerow, 142 S. Ct. at

1316.

A lack of jurisdiction “voids any decree entered in a

federal court,” and the District Court’s orders granting

Rushmore’s motion to compel and denying George’s motion

to vacate are void.19 Steel Valley Auth. v. Union Switch &

17

In a recent case similar to the one before us, the Fifth Circuit

wrote that “any of the reasons . . . a federal court may lack

subject matter jurisdiction over the underlying dispute—e.g.,

ripeness—would similarly prevent a district court from having

jurisdiction to compel arbitration” under Vaden. Lower Colo.

River Auth. v. Papalote Creek II, L.L.C., 858 F.3d 916, 923

(5th Cir. 2017); see id. at 926–27. We agree, and we recognize

Article III standing as one of those reasons.

18

The motion references the FDCPA, § 1692e, and the “least

sophisticated debtor” standard. See Brown v. Card Serv. Ctr.,

464 F.3d 450, 453–54 (3d Cir. 2006). But these references

cannot constitute an “independent jurisdictional basis” for a

motion to vacate. Badgerow, 142 S. Ct. at 1316. To hold

otherwise—to allow federal jurisdiction over a motion to

vacate whenever the underlying dispute involves federal

claims—would be to embrace the exact look-through approach

Badgerow rejected. See id. at 1317–18.

19

We asked the parties to address whether the orders might be

erroneous, rather than void, under the logic of Marshall v.

Board of Education, 575 F.2d 417 (3d Cir. 1978). In Marshall,

21

Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987); see also, e.g.,

Lower Colo. River Auth. v. Papalote Creek II, L.L.C., 858 F.3d

916, 926–27 (5th Cir. 2017). We will accordingly vacate those

orders.

D. The Arbitration Award

There is one loose end to tie up before concluding, and

that is the arbitration award. What becomes, or should become,

of an arbitration award stemming from a void order like the one

we held that “a judgment is not void” under Federal Rule of

Civil Procedure 60(b)(4) “simply because it is erroneous, or is

based upon precedent which is later deemed incorrect or

unconstitutional.” Id. at 422. “A court has the power to

determine its own jurisdiction,” we wrote, and “[i]n the interest

of finality . . . an error in that determination will not render the

judgment void” absent a “clear usurpation of power.” Id. at

422 n.19 (quotation marks omitted).

It is tempting to analogize to Rule 60(b)(4) in this case. The

arbitration award resembles a final judgment, and the high

standard for setting aside a final judgment is similar to the high

standard for setting aside an arbitration award. See App. 112

(noting that the arbitrator’s decision “will be final and binding”

on the parties); compare Marshall, 575 F.2d at 422 & n.19,

with Whitehead v. Pullman Grp., LLC, 811 F.3d 116, 119–21

(3d Cir. 2016). But Marshall, by its terms, applies only to

collateral challenges, and the opinion clarifies that erroneous

jurisdictional determinations can still be held void on direct

review. 575 F.2d at 422–23, 422 n.19. Marshall is therefore

distinguishable, and we decline to extend its logic to this direct

appeal.

22

at issue here? George suggests that, because the order

compelling arbitration is void, we must also vacate the

arbitration award. Rushmore, meanwhile, would have us

invoke various equitable doctrines to preserve the award for

future enforcement. It suggests, for example, that “George is

estopped from . . . arguing that the arbitration award against

her is a nullity” because, as between the District Court’s two

options, she elected to initiate arbitration proceedings.

Rushmore First Suppl. Br. 5. It also suggests that Caterpillar

Inc. v. Lewis, 519 U.S. 61 (1996), requires enforcement of the

award, and that the arbitrator “was legally empowered to enter

the arbitration award . . . regardless of George’s Article III

standing,” Rushmore First Suppl. Br. 5.

Having considered the parties’ positions, we decline to

endorse either. George lacks standing on appeal, and “when

[jurisdiction] ceases to exist, the only function remaining to the

court is that of announcing the fact and dismissing the cause.”

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998)

(quotation marks omitted). In addition, we note that section 10

of the FAA lists the “exclusive grounds” for vacating an

arbitration award, and “where the award stemmed from a void

order” is not plainly listed in that section. Mattel, 552 U.S. at

584; see 9 U.S.C. § 10.

We therefore do not reach the question of whether the

arbitration award remains valid and enforceable (under the

AAA rules, because George assented to the arbitrator’s

jurisdiction, or otherwise) or whether it should be vacated in a

“jurisdictionally correct proceeding.” Brown, 75 F.3d at 868.

The answer to that question lies with a court of competent

jurisdiction—presumably a New Jersey state court or an AAA

tribunal.

23

To close, we offer a few words on the equities in this

case. We recognize that our holding may ultimately clear the

way for a redo of George’s lawsuit—a frustrating result for

Rushmore given that “the parties have already fully [litigated

and] arbitrated the underlying dispute once.” Papalote Creek,

858 F.3d at 927. And we recognize this result may be

particularly frustrating given its origin in cases decided after

the motion to compel. See supra notes 5, 8. But that is the

importance of Article III standing, and “we cannot evade the

fact that the district court lacked jurisdiction when it compelled

arbitration” and ruled on George’s motion to vacate.20

Papalote Creek, 858 F.3d at 927.

III. Conclusion

For the foregoing reasons, we will vacate the District

Court’s orders and remand with instructions to dismiss this

case for lack of standing.21

20

We do not foreclose the possibility that, in a case where

gamesmanship is apparent—a case, perhaps, where a plaintiff

deliberately submits an on-the-fence complaint and later

argues she lacks standing in order to void an arbitration

order—equitable considerations could compel a different

result. Here, however, both parties assert that George has

standing, and we do not doubt the parties have operated in good

faith.

21

While in some circumstances we might remand with

instructions to grant leave to amend, here we find amendment

would be futile given George’s testimony that she never read

the April 2018 letter. See Jablonski v. Pan Am. World Airways,

Inc., 863 F.2d 289, 292 (3d Cir. 1988).

24