Melissa Thornley v. Clearview AI, Inc.

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 20-3249

MELISSA THORNLEY, et al.,

Plaintiffs-Appellees,

v.

CLEARVIEW AI, INC.,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 20-cv-3843 — Sharon Johnson Coleman, Judge.

____________________

ARGUED JANUARY 4, 2021 — DECIDED JANUARY 14, 2021

____________________

Before EASTERBROOK, WOOD, and HAMILTON, Circuit

Judges.

WOOD, Circuit Judge. Illinois’s Biometric Information Pri-

vacy Act, familiarly known as BIPA, provides robust protec-

tions for the biometric information of Illinois residents. See

740 ILCS 14/1 et seq. It does so by regulating the collection,

retention, disclosure, and destruction of biometric identifiers

or information—for example, retinal scans, fingerprints, or fa-

cial geometry. In recent years, the use of biometric data has

2 No. 20-3249

exploded. Predictably, that development has been followed

by a spate of litigation testing the limits of the law’s protec-

tions. Not all of those cases, however, have proven to be justi-

ciable in federal court: some plaintiffs have failed to demon-

strate that they have standing to sue as required by Article III

of the Constitution.

The question now before us is whether, on the allegations

of the operative complaint, the plaintiffs—Melissa Thornley

and others, on behalf of themselves and a proposed class—

have shown standing. (For convenience, we refer only to

Thornley, unless the context requires otherwise.) Oddly,

Thornley insists that she lacks standing, and it is the defend-

ant, Clearview AI, Inc., that is championing her right to sue in

federal court. That peculiar line-up exists for reasons that only

a civil procedure buff could love: the case started out in an

Illinois state court, but Clearview removed it to federal court.

Thornley wants to return to state court to litigate the BIPA

claims, but Clearview prefers a federal forum. The case may

stay in federal court, however, only if the more stringent fed-

eral standards for standing can be satisfied; Illinois (as is its

right) has a more liberal attitude toward the kinds of cases its

courts are authorized to entertain. The district court held that

Thornley has alleged only a bare statutory violation, not the

kind of concrete and particularized harm that would support

standing, and thus ordered the action remanded to the state

court. Because the case meets the criteria of the Class Action

Fairness Act, 28 U.S.C. § 1332(d), Clearview sought permis-

sion to appeal from that order. See 28 U.S.C. § 1453(c). We

agreed to take the appeal, § 1453(c)(1), and we now affirm the

decision of the district court.

No. 20-3249 3

I

Our description of the factual background of the case is

necessarily brief because we have only the pleadings before

us. We accept Thornley’s account for present purposes. Clear-

view is in a business that would have been impossible to im-

agine a generation ago. Founded in 2017, it designed a facial

recognition tool that takes advantage of the enormous

amount of information that floats around the Internet. Users

may download an application (“App”) that gives them access

to Clearview’s database.

Clearview uses a proprietary algorithm to “scrape” pic-

tures from social media sites such as Facebook, Twitter, Insta-

gram, LinkedIn, and Venmo. The materials that it uses are all

publicly available. The scraping process is not designed, how-

ever, simply to store photographs. Instead, Clearview’s soft-

ware harvests from each scraped photograph the biometric

facial scan and associated metadata (for instance, time and

place stamps), and that information is put onto its database.

The database, which is stored on servers in New York and

New Jersey, at this point contains literally billions of entries.

Clearview offers access to this database for users who

wish to find out more about someone in a photograph—per-

haps to identify an unknown person, or perhaps to confirm

the identity of a person of interest. Many, though not all, of its

clients are law-enforcement agencies. The user purchases ac-

cess to Clearview’s resources and, using the App, uploads her

photograph to its site. Clearview then creates a digital facial

scan of the person in the photograph and compares the new

facial scan to those in its vast database. If it finds a match, it

returns a geotagged photograph (not the facial scan) to the

4 No. 20-3249

user, and it informs the user of the source social-media site for

the photograph.

In the beginning, Clearview appears to have kept a rather

low profile. But on January 18, 2020, The New York Times pub-

lished an article about Clearview and its extensive database.

See Kashmir Hill, “The Secretive Company That Might End

Privacy as We Know It,” The New York Times, Jan. 18, 2020,

https://www.nytimes.com/2020/01/18/technology/clearview-

privacy-facial-recognition.html. A rash of lawsuits followed

in the wake of the article. See, e.g., Mutnick v. Clearview AI, Inc.,

No. 1:20-cv-00512 (N.D. Ill.); Roberson v. Clearview AI, Inc., No.

1:20-cv-00111 (E.D. Va.); Calderon v. Clearview AI, Inc., No.

1:20-cv-01296 (S.D.N.Y.); Burke v. Clearview AI, Inc., No. 3:20-

cv-00370 (S.D. Cal.). This case was one of them. Notably,

Thornley did not choose a federal forum; instead, she filed her

case in state court—specifically, the Circuit Court of Cook

County. Her initial complaint, filed on behalf of herself and a

class on March 19, 2020, asserted violations of three subsec-

tions of BIPA: 740 ILCS 14/15(a), (b), and (c). (We explain be-

low the scope of each of these provisions.) Clearview re-

moved that case to federal court, see 28 U.S.C. § 1441, but

shortly after the removal Thornley voluntarily dismissed the

action.

In certain circumstances, met here, plaintiffs are entitled to

take that action without leave of court should they so desire.

See FED. R. CIV. P. 41(a)(1). Granted, if the plaintiff previously

has dismissed either a federal- or a state-court action based on

the same claim, “a notice of dismissal operates as an adjudi-

cation on the merits.” Id. Rule 41(a)(1)(B). Thornley, however,

had taken no such earlier action, and so her dismissal was

without prejudice. She was thus within her rights when she

No. 20-3249 5

returned to the Circuit Court of Cook County on May 27,

2020, with a new, significantly narrowed, action against

Clearview. The new action was more focused in two respects:

first, it alleged only a violation of BIPA § 15(c), 740 ILCS

14/15(c); and second, the class definition was much more

modest. Clearview again removed the case to the federal

court. This time, Thornley filed a motion to remand, see 28

U.S.C. § 1447(c), in which she asserted that the violation of

section 15(c) she described was only a “bare procedural vio-

lation, divorced from any concrete harm,” see Spokeo, Inc. v.

Robbins, 136 S. Ct. 1540, 1549 (2016), and thus did not support

Article III standing. As we noted earlier, the district court

agreed with her and ordered the case remanded to state court.

II

Ordinarily, it is the plaintiff who bears the burden of

demonstrating that the district court has subject-matter juris-

diction over her case and that it falls within “the Judicial

Power” conferred in Article III. But more generally, the party

that wants the federal forum is the one that has the burden of

establishing the court’s authority to hear the case. See Schur v.

L.A. Weight Loss Centers, Inc., 577 F.3d 752, 758 (7th Cir. 2009);

Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 447 (7th Cir.

2005). As applied here, that means that Clearview must show

that Thornley (as well as her co-plaintiffs) has Article III

standing.

The Supreme Court’s most recent restatement of the rules

governing standing appears in Thole v. U.S. Bank N.A., 140 S.

Ct. 1615 (2020):

To establish standing under Article III of the Con-

stitution, a plaintiff must demonstrate (1) that he or she

6 No. 20-3249

suffered an injury in fact that is concrete, particular-

ized, and actual or imminent, (2) that the injury was

caused by the defendant, and (3) that the injury would

likely be redressed by the requested judicial relief.

Id. at 1618, citing Lujan v. Defenders of Wildlife, 504 U.S. 555,

560–61 (1992). See also Spokeo, 136 S. Ct. at 1547. In the case

before us, there is no serious dispute about the second and

third of those requirements: whatever injury Thornley suf-

fered occurred at Clearview’s hands, and one can imagine a

number of ways in which that injury could be remedied by a

court. We say this not because the parties have agreed on

those points. No such agreement would be binding on the

court. But the record tells us enough about the nature and

source of the injury to support this conclusion. We thus focus

exclusively on the injury-in-fact requirement.

This appeal is far from our first encounter with BIPA,

though we have not had occasion in the past to consider sec-

tion 15(c). Our earlier cases, however, provide important con-

text for our consideration of the standing issue presented

here, and so we take a moment to review their central hold-

ings.

The first in this line was Miller v. Southwest Airlines Co., 926

F.3d 898 (7th Cir. 2019). The immediate question was whether

employees of Southwest Airlines who contended that the

company had violated BIPA in the operation of its timekeep-

ing system had to present their claims to an adjustment board,

as spelled out in the Railway Labor Act, or if the court was the

proper forum. Id. at 900. Before the court could reach that is-

sue, however, it had to decide whether the employees had

standing under Article III to pursue the litigation. It con-

cluded that they did. If there were some problem in the use of

No. 20-3249 7

the timekeeping system, it would be possible for either an ad-

justment board or a court to remedy that problem:

The prospect of a material change in workers’ terms

and conditions of employment gives these suits a con-

crete dimension that Spokeo, Groshek [v. Time Warner

Cable, Inc., 865 F.3d 884 (7th Cir. 2017)], and Casillas [v.

Madison Ave. Assocs., Inc., 926 F.3d 329 (7th Cir. 2019)]

lacked. Either the discontinuation of the practice, or the

need for the air carriers to agree to higher wages to in-

duce unions to consent, presents more than a bare pro-

cedural dispute. See Robertson v. Allied Solutions, LLC,

902 F.3d 690, 697 (7th Cir. 2018) (“Article III’s strictures

are met not only when a plaintiff complains of being

deprived of some benefit, but also when a plaintiff

complains that she was deprived of a chance to obtain

a benefit.”).

Id. at 902. The Miller opinion did not distinguish further

among the various subsections of BIPA § 15.

We returned to BIPA in Bryant v. Compass Group USA, Inc.,

958 F.3d 617 (7th Cir. 2020). There the plaintiff’s employer had

installed in its cafeteria some “Smart Market” vending ma-

chines owned by the defendant, Compass Group. In order to

use the machines, a patron had to establish an account using

her fingerprint. Section 15(a) of BIPA requires collectors of bi-

ometric information to make publicly available a retention

schedule and guidelines for permanently destroying the in-

formation they obtain. Section 15(b) of BIPA requires the col-

lector to inform those from whom it is collecting information

that it is doing so, and to disclose the purpose of the collection

and the length of the retention. It also requires the collector to

obtain written consent from the affected person. Bryant

8 No. 20-3249

alleged that Compass had violated both section 15(a) and

15(b), 740 ILCS 14/15(a), (b).

Our decision hewed closely to the facts and allegations be-

fore us. As amended on the petition for rehearing, the opinion

emphasized that Bryant’s claim under section 15(a) rested ex-

clusively on Compass’s failure to develop a “written policy,

made available to the public, establishing a retention schedule

and guidelines for permanently destroying biometric identi-

fiers and biometric information[.]’’ Id. § 15(a). We found that

this duty is “owed to the public generally, not to particular

persons whose biometric data the entity collects.” 958 F.3d at

626. In other words, Bryant’s injury in this respect was not

particularized, and thus it did not demonstrate injury-in-fact

for Article III purposes. We left open the question whether a

different allegation under section 15(a)—one based on the

language requiring a collector to comply with its established

retention and destruction criteria—might call for a different

result. Finally, we found that Bryant’s allegations that Com-

pass had violated section 15(b)’s requirement both to inform

those from whom it was collecting data that it was doing so

and why, and to obtain their written consent, was both con-

crete and particularized, and thus were enough to support

standing.

The question under section 15(a) that we reserved in Bry-

ant did not remain unexamined for long. In Fox v. Dakkota In-

tegrated Systems, LLC, 980 F.3d 1146 (7th Cir. 2020), plaintiff

Fox contended that Dakkota, her former employer, had vio-

lated section 15(a) by failing to comply with its data retention

and destruction policies. As in this case, Fox had initiated her

action in state court, Dakkota had removed to federal court,

and the question before us was whether the case had to be

No. 20-3249 9

remanded to state court on Article III standing grounds. After

reviewing many of the same cases we have highlighted here,

we concluded that “[a]n unlawful retention of biometric data

inflicts a privacy injury in the same sense that an unlawful

collection does.” Id. at 1154. We thus held that “an unlaw-

ful retention of a person’s biometric data is as concrete and

particularized an injury as an unlawful collection of a person’s

biometric data. If the latter qualifies as an invasion of a ‘pri-

vate domain, much like an act of trespass would be,’ Bryant,

958 F.3d at 624, then so does the former.” Id. at 1155. We thus

reversed the district court’s order sending the case back to

state court and remanded for further proceedings.

Two other points are important to understanding our ap-

proach to these cases. First, an important corollary to the rule

that injury-in-fact must be both concrete and particularized,

see Spokeo, 136 S. Ct. at 1548–49, is the requirement that “the

plaintiff must clearly allege facts demonstrating each ele-

ment.” Id. at 1547 (cleaned up). In other words, allegations

matter. One plaintiff may fail to allege a particularized harm

to himself, while another may assert one. For example, in

Casillas (which dealt with the Fair Debt Collection Practices

Act, not BIPA), we gave dispositive weight to the fact that the

plaintiff had not pleaded that her receipt of a letter that alleg-

edly failed to comply with the statute had caused her any

harm—indeed, had any effect whatsoever on her. 926 F.3d at

334–35. As the case reached us, “Casillas had no more use for

the notice than she would have had for directions accompa-

nying a product that she had no plans to assemble.” Id. at 334.

That was not enough to support her standing to sue, but noth-

ing in the opinion implied that every recipient of a similarly

nonconforming letter would be in the same position. Simi-

larly, as the difference between the treatment of section 15(a)

10 No. 20-3249

in Bryant and Fox illustrates, the result of the standing inquiry

for the identical section of a statute will depend on what that

section provides and what the plaintiff has alleged.

Second, the fact that a “bare procedural violation” does

not suffice to support an injury-in-fact made some people

wonder whether there is a distinction between alleged proce-

dural injuries and alleged substantive injuries. We clarified in

Larkin v. Finance System of Green Bay, Inc., 982 F.3d 1060, 1066

(7th Cir. 2020), that no such line exists. Article III must be sat-

isfied no matter what kind of violation is asserted.

III

Thornley’s complaint raises only one claim under BIPA:

that Clearview violated section 15(c). (The fact that she had

filed the earlier action and then voluntarily dismissed it is of

no legal relevance, except for purposes of the two-dismissal

rule, which has not been triggered here.) That subpart reads

as follows:

(c) No private entity in possession of a biometric

identifier or biometric information may sell, lease,

trade, or otherwise profit from a person’s or a cus-

tomer’s biometric identifier or biometric information.

740 ILCS 14/15(c). Thornley and her co-plaintiffs, Deborah

Benjamin-Koller and Josue Herrera, all of whom maintained

social media accounts on sites such as Facebook, Instagram,

LinkedIn, Venmo, and YouTube, filed their complaint in the

state court on behalf of themselves and as representatives of

the following class:

All current Illinois citizens whose biometric identifiers

or biometric information were [sic], without their

knowledge, included in the Clearview AI Database at

No. 20-3249 11

any time from January 1, 2016 to January 17, 2020 (the

“Class Period”) and who suffered no injury from De-

fendant’s violation of Section 15(c) of BIPA other than

statutory aggrievement … .

Similarly, the complaint concedes that none of the named

plaintiffs, and no class member, “suffered any injury as a re-

sult of the violations of Section 15(c) of BIPA other than the

statutory aggrievement alleged in Paragraph 38.” Complaint,

¶ 39.

Taking the position that these allegations did not suffice to

show a lack of Article III standing, Clearview removed the

case to federal court. The district court saw things differently.

Noting that a plaintiff is the master of her own complaint, the

court held that the particular allegations before it raised ques-

tions only about a general regulatory rule found in BIPA: no

one may profit in the specified ways from another person’s

biometric identifiers or information.

On appeal, Clearview urges us to equate a person’s poten-

tial injury from the sale (or lease, etc.) of her data with the in-

jury from retention of that data that we recognized in Fox, or

the injury we recognized in Bryant from the collection of that

data and the failure to obtain written consent. We have no

quarrel with the idea that a different complaint might reflect

that type of equivalence. A plaintiff might assert, for example,

that by selling her data, the collector has deprived her of the

opportunity to profit from her biometric information. Or a

plaintiff could assert that the act of selling her data amplified

the invasion of her privacy that occurred when the data was

first collected, by disseminating it to some unspecified num-

ber of other people. Perhaps a plaintiff might assert that the

scraping of data from social media sites raises the cost of

12 No. 20-3249

using those sites in some respect (though they are nominally

free, in the same sense that network television or conventional

radio is free—ads pay for these outlets, and the viewers are

the “product” that the advertiser is buying).

Without any such allegations of concrete and particular-

ized harm to the plaintiffs, we are left with a general rule that

prohibits the operation of a market in biometric identifiers

and information. If it is not profitable to collect or hold that

data, one can assume that the incentive to collect it or hold it

will be significantly reduced. Much the same rationale sup-

ports other laws that are directed against market transactions.

Regulations implementing the Eagle Protection Act and the

Migratory Bird Treaty Act, for example, permit the possession

or transportation of certain migratory birds, and their parts,

nests, or eggs, but they state that these items “may not be im-

ported, exported, purchased, sold, bartered, or offered for

purchase, sale, trade, or barter.” Andrus v. Allard, 444 U.S. 51,

54 (1979) (citing 50 C.F.R. § 21.2(a) (1978)). The Supreme Court

understood this as a regulatory prohibition against commerce

in the covered birds and bird parts, and it upheld the regula-

tions. A similar rationale lay behind the Court’s decision in

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), to uphold

a prohibition on child pornography produced with real chil-

dren on the ground that it furthers the government’s effort to

eliminate the market for such material. Id. at 254. (At the same

time, the Court held that the market-deterrence theory did not

save a prohibition against materials created with computer-

ized images or young-looking adults. But that was because

the underlying conduct could not be criminalized consist-

ently with the First Amendment.)

No. 20-3249 13

Section 15(c) of BIPA is another such statute, albeit one en-

acted by Illinois rather than the federal government. It ad-

dresses only the regulated entity—the collector or holder of

the biometric data—and flatly prohibits for-profit transac-

tions. No one in this case has asked us to decide whether this

prohibition violates some other law, such as the Takings

Clause, substantive due process, or a federal statute, and so

we express no opinion on any such theory. For our purposes,

it is enough to say that this is the same kind of general regu-

lation as the duty to create and publish a retention and de-

struction schedule found in section 15(a), at least when the

plaintiff asserts no particularized injury resulting from the

commercial transaction. See Bryant, 958 F.3d at 626.

One final question remains: may the plaintiffs, by seeking

to represent a class that includes only persons who suffered

no injury from the alleged violation of section 15(c), prevent

the district court from taking a broader view of the case? We

wondered whether such a holding would be consistent with

the Supreme Court’s decision in Standard Fire Insurance Co. v.

Knowles, 568 U.S. 588 (2013). That case involved a putative

class action that was commenced in an Arkansas state court

against Standard Fire; plaintiffs alleged that underpayments

had injured “hundreds, and possibly thousands” of policy-

holders. Id. at 591. Relying on the Class Action Fairness Act,

which confers jurisdiction on the district courts in cases where

minimal diversity exists and the amount in controversy ex-

ceeds $5,000,000, 28 U.S.C. § 1332(d)(2), Standard Fire re-

moved the action to the district court. Once it was there, but

before class certification, the plaintiff filed a statement stipu-

lating that he and the class would not seek damages in excess

of $5,000,000. On the basis of that stipulation, plaintiff then

14 No. 20-3249

sought to have the case remanded to state court for lack of

jurisdiction.

The Supreme Court held that the stipulation was not, and

could not be, binding on the plaintiff class, and thus that it

was ineffective to defeat the removal. It explained that “a

plaintiff who files a proposed class action cannot legally bind

members of the proposed class before the class is certified.”

Id. at 593. Because the district court had not evaluated the ad-

equacy of the amount in controversy independently from the

stipulation, the Court remanded for further proceedings.

The situation in Thornley’s case is different. She does not

contest either the existence of minimal diversity (she is a citi-

zen of Illinois, and Clearview is a citizen of Delaware and

New York) or the fact that more than $5,000,000 is at stake.

Instead, she has simply offered a class definition that is nar-

rower than it might have been. We have no reason to believe

that the district court, acting on its own initiative, would cer-

tify a different and broader class; to that extent, the rule that

the plaintiff controls her own case applies. And unlike the sit-

uation in Standard Fire, people who fall outside Thornley’s

class definition are totally unaffected by this litigation. If they

wish to sue Clearview, either alone or under a class definition

that includes an allegation of injury, they are free to do so.

Indeed, as we noted earlier, there are a number of class actions

pending against Clearview, many of which appear to be

broader than this one. We know of nothing that would pre-

vent a putative class representative from taking a conserva-

tive approach to class definition. And if the plaintiffs change

their tune in the state court, Clearview will be able to attempt

to remove again to federal court, though we do not predict the

outcome of such an effort. See 28 U.S.C. § 1446(b)(3), (c).

No. 20-3249 15

IV

Our job is to decide whether Thornley and her co-plaintiffs

have Article III standing to pursue the case they have pre-

sented in their complaint. We have concluded that they do

not: they have described only a general, regulatory violation,

not something that is particularized to them and concrete. It

is no secret to anyone that they took care in their allegations,

and especially in the scope of the proposed class they would

like to represent, to steer clear of federal court. But in general,

plaintiffs may do this. As long as their allegations are in good

faith, they may include non-diverse parties as defendants.

Outside of the clumsily named area of “complete preemp-

tion,” they may choose to rely exclusively on state law and

avoid federal-question jurisdiction. And here, they may take

advantage of the fact that Illinois permits BIPA cases that al-

lege bare statutory violations, without any further need to al-

lege or show injury. See Rosenbach v. Six Flags Entertainment

Corp., 2019 IL 123186 ¶¶ 22–23.

We express no opinion on the adequacy of Thornley’s

complaint as a matter of Illinois law. That will be for the state

court to address. We hold only that on the basis of the allega-

tions of this complaint, the district court correctly decided

that Thornley and the other plaintiffs did not present a case

that lies within the boundaries set by Article III, and so the

court properly remanded the case to the state court.

AFFIRMED.

16 No. 20-3249

HAMILTON, Circuit Judge, concurring. I join Judge Wood’s

careful and persuasive opinion for the panel. I write sepa-

rately to emphasize a critical point in the panel opinion and

to add two broader cautions about standing issues under con-

sumer-protection statutes.

First, our decision has been determined by the choices that

these plaintiffs have made to narrow both their claims and the

scope of their proposed class. Judge Wood’s opinion recog-

nizes that other plaintiffs might well establish standing for

other alleged violations of Section 15(c). Ante at 11–12. Add to

those possibilities a person who has consented to collection,

retention, and use of her biometric information, perhaps for

non-profit scientific research, but who objects to the sale of her

data to a third party. The resulting injury in such cases would

be comparable to injuries in invasion-of-privacy and unjust-

enrichment cases that the law has long recognized. See Re-

statement (Second) of Torts § 652C (1977) (appropriation of

another’s name or likeness for one’s own use or benefit); Re-

statement of Restitution § 136 (1937) (“A person who has tor-

tiously used a trade name, trade secret, franchise, profit a

prendre, or other similar interest of another, is under a duty

to restitution for the value of the benefit received thereby.”);

see also Robertson v. Allied Solutions, LLC, 902 F.3d 690, 697 (7th

Cir. 2018) (plaintiff may show standing by alleging she was

deprived of a benefit but also by alleging she was deprived of

a chance to obtain a benefit). In fact, the misuse of a person’s

biometric information presents an especially dangerous mod-

ern version of these traditional injuries. A victim of identity

theft can obtain a new email address or even Social Security

number, but “biometric identifiers … are immutable, and

once compromised, are compromised forever.” Fox v. Dakkota

Integrated Systems LLC, 980 F.3d 1146, 1155 (7th Cir. 2020)).

No. 20-3249 17

Second, the opinion’s emphasis on the allegations of these

plaintiffs has a procedural corollary. Standing is an issue that

federal courts have an obligation to raise in any civil case.

When the trial or appellate court raises questions about the

sufficiency of a plaintiff’s allegations to plead standing, fair-

ness requires the court to give the plaintiff a reasonable op-

portunity to elaborate on her initial allegations. See, e.g., Lar-

kin v. Finance System of Green Bay, Inc., 982 F.3d 1060, 1066 (7th

Cir. 2020) (explaining opportunities for plaintiff’s attorney to

identify injury to support standing under Fair Debt Collection

Practices Act); Doermer v. Callen, 847 F.3d 522, 526 (7th Cir.

2017) (affirming dismissal for lack of standing where plaintiff

never took opportunities to offer amended complaint or to ex-

plain possible amendments to remedy lack of standing).

Third, the briefs in this case address very recent decisions

by this court finding that private plaintiffs lacked standing

when they alleged intangible harm based on violations of

other consumer-protection statutes. See Nettles v. Midland

Funding, LLC, — F.3d —, 2020 WL 7488610 (7th Cir. Dec. 21,

2020) (FDCPA); Bazile v. Finance System of Green Bay, Inc., —

F.3d —, 2020 WL 7351092 (7th Cir. Dec. 15, 2020) (FDCPA);

Spuhler v. State Collection Service, Inc., — F.3d —, 2020 WL

7351098 (7th Cir. Dec. 15, 2020) (FDCPA); Gunn v. Thrasher,

Buschmann & Voelkel, P.C., 982 F.3d 1069 (7th Cir. 2020)

(FDCPA); Brunett v. Convergent Outsourcing, Inc., 982 F.3d 1067

(7th Cir. 2020) (FDCPA); Larkin, 982 F.3d at 1066; Groshek v.

Time Warner Cable, Inc., 865 F.3d 884 (7th Cir. 2017) (Fair Credit

Reporting Act). The most recent cases under the Fair Debt

Collection Practices Act rely on our decision creating a circuit

split in Casillas v. Madison Avenue Associates, Inc., 926 F.3d 329,

335–36 (7th Cir. 2019), disagreeing with Macy v. GC Services

Ltd. P’Ship, 897 F.3d 747 (6th Cir. 2018); see also Casillas, 926

18 No. 20-3249

F.3d at 339–43 (Wood, C.J., dissenting from denial of en banc

review).

On the other side of this issue over standing for intangible

harms to consumers, see our previous cases under the Bio-

metric Information Privacy Act discussed in Judge Wood’s

opinion, including Fox v. Dakkota Integrated Systems, LLC, 980

F.3d 1146 (7th Cir. 2020); Bryant v. Compass Group USA, Inc.,

958 F.3d 617 (7th Cir. 2020); and Miller v. Southwest Airlines

Co., 926 F.3d 898 (7th Cir. 2019), as well as Gadelhak v. AT&T

Services, Inc., 950 F.3d 458, 462–63 (7th Cir. 2020) (unwelcome

text messages under Telephone Consumer Protection Act),

and Lavallee v. Med-1 Solutions, 932 F.3d 1049, 1053 (7th Cir.

2019) (omitted notice of rights under FDCPA). I confess that I

have not yet been able to extract from these different lines of

cases a consistently predictable rule or standard.

Much of the debate over standing in these cases stems

from the Supreme Court’s decision in Spokeo, Inc. v. Robins,

136 S. Ct. 1540 (2016), a decision on standing under the Fair

Credit Reporting Act. The Court told us that standing requires

“concrete” injury but that “intangible injuries can neverthe-

less be concrete.” Id. at 1548–49. This Delphic instruction

raised more questions than it answered. Many arise under

federal consumer-protection statutes that use common regu-

latory techniques: ensure that the consumer/debtor/bor-

rower/investor/retiree has accurate and reliable information

for her decisions, and require specific procedures, including

notice and opportunity to respond before adverse action is

taken that may affect her.

The lower federal courts have already spilled a great deal

of ink interpreting the Supreme Court’s statement in Spokeo

No. 20-3249 19

that the plaintiff could not satisfy Article III standing “by al-

leging a bare procedural violation.” Id. at 1550. Given the

number of cases in this and other lower courts finding only

“bare procedural violations,” it is worth emphasizing that the

only example the Court actually provided was utterly trivial:

an incorrect zip code in the information about a debtor under

the Fair Credit Reporting Act.

At the same time, Spokeo taught that “both history and the

judgment of Congress play important roles” in determining

whether an intangible injury can be sufficiently concrete to

support standing. Id. at 1549, discussing Lujan v. Defenders of

Wildlife, 504 U.S. 555, 578 (1992) (Congress “may elevat[e] to

the status of legally cognizable injuries concrete, de facto inju-

ries that were previously inadequate in law”), and id. at 580

(opinion of Kennedy, J.) (“Congress has the power to define

injuries and articulate chains of causation that will give rise to

a case or controversy where none existed before.”).

The legislative power of Congress to protect consumers

(and debtors, borrowers, investors, etc.) by granting informa-

tional and procedural rights, as well as private rights of action

to enforce them, has enormous practical importance. That im-

portance is only growing with the pace of technological

change. To illustrate, one need only imagine Congress soon

trying to draft a federal cousin to the Illinois statute we con-

sider here. It will need to decide whether to create a private

right of action to enforce individual rights rather than leave

enforcement entirely to a federal agency. Many post-Spokeo

decisions in this and other circuits impose constitutional lim-

its that will make that a difficult task.

With respect, I believe that several of our recent opinions

take Spokeo too far. Those opinions do not give sufficient

20 No. 20-3249

weight to Spokeo’s endorsement of standing where Congress

has chosen to provide procedural and informational rights to

reduce the risk of more substantive harm for consumers and

others, and has created private rights of action to enforce

them. We have also too quickly invoked Spokeo to deny con-

crete injury even in cases alleging core substantive violations.

In general, Congress is entitled to greater legislative leeway

than we have allowed in Casillas, Larkin, and Nettles, for exam-

ple. By denying standing in those and similar cases, we im-

pose constitutional limits that undermine legislative discre-

tion to enforce federal law through private rights of action.

The obvious alternative path for Congress will be to rely more

heavily on enforcement through federal bureaucracies, which

will face no standing obstacles.

I will not belabor the point further here, particularly in

light of the time constraints imposed on deciding this appeal

under 28 U.S.C. § 1453(c)(2). Judge Wood’s dissent from the

denial of rehearing in Casillas, the Sixth Circuit’s opinion in

Macy, 897 F.3d at 747, and the Ninth Circuit’s opinion on re-

mand in Spokeo, 867 F.3d 1108 (9th Cir. 2017), express my con-

cerns well. Sooner or later, though, I hope, the Supreme Court

will revisit the problem of standing in private actions based

on intangible injuries under a host of federal consumer-pro-

tection statutes.