Renetrice Pierre v. Midland Credit Management

In the

United States Court of Appeals

for the Seventh Circuit

____________________

Nos. 19-2993 & 19-3109

RENETRICE R. PIERRE, individually and on

behalf of all others similarly situated,

Plaintiff-Appellee/

Cross-Appellant,

v.

MIDLAND CREDIT MANAGEMENT, INC.,

Defendant-Appellant/

Cross-Appellee.

____________________

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 16 C 2895 — Harry D. Leinenweber, Judge.

____________________

ARGUED NOVEMBER 9, 2020 — DECIDED APRIL 1, 2022

____________________

Before SYKES, Chief Judge, and HAMILTON and BRENNAN,

Circuit Judges.

SYKES, Chief Judge. Midland Credit Management, Inc.,

sent Renetrice Pierre a letter offering to resolve a long-

unpaid debt at a discount. The statute of limitations on the

debt had run. The letter advised Pierre that because of the

2 Nos. 19-2993 & 19-3109

age of the debt, Midland Credit would neither sue her for it

nor report it to a credit agency and that her credit score

would be unaffected by either payment or nonpayment.

Pierre did not take Midland Credit up on the offer. In-

stead, she sued the company alleging that it violated the Fair

Debt Collection Practices Act. Asking for payment of a time-

barred debt isn’t unlawful, but Pierre contended that the

collection letter was a deceptive, unfair, and unconscionable

method of debt collection, in violation of the Act. She sought

to represent a class of Illinois residents who had received

similar letters from Midland Credit. The district court certi-

fied the class and entered summary judgment in its favor on

the merits. A jury awarded statutory damages totaling

$350,000.

The parties have cross-appealed, raising issues related to

standing, class certification, and the merits. We begin and

end with standing. The letter might have created a risk that

Pierre would suffer a harm, such as paying the time-barred

debt. But a risk, at most, is all it was. That’s not enough to

establish an Article III injury in a suit for money damages, as

the Supreme Court held last year in TransUnion LLC v.

Ramirez, 141 S. Ct. 2190, 2210–11 (2021). Accordingly, we

vacate and remand with instructions to dismiss the case for

lack of subject-matter jurisdiction.

I. Background

In 2006 Pierre opened a credit-card account with Target

National Bank. She accumulated consumer debt on the

account and defaulted on it. Midland Funding, LLC, bought

the debt and sued Pierre for it in Illinois state court in 2010.

Midland Funding later voluntarily dismissed the lawsuit.

Nos. 19-2993 & 19-3109 3

Fast forward to 2015. Midland Credit, which collects

debts for Midland Funding, sent Pierre a letter seeking

payment of the debt. The letter told Pierre that she had been

“pre-approved for a discount program designed to save

[her] money.” It listed multiple payment plans—one promis-

ing savings of 40%—and said that the offer would expire in

30 days.

Because the debt was so old, the statute of limitations

had run. See 735 ILL. COMP. STAT. 5/13-205. Midland Credit

could ask for payment, but it couldn’t sue for it. The letter

ended with this: “The law limits how long you can be sued

on a debt. Because of the age of your debt, we will not sue

you for it, we will not report it to any credit reporting agen-

cy, and payment or non-payment of this debt will not affect

your credit score.”

The letter surprised and confused Pierre. Midland Fund-

ing had sued her for the debt and then dropped the case.

Now a company with a slightly different name sought

payment. The new company with the similar name said it

wouldn’t sue her, but perhaps it (or another entity) could

sue her if it really wanted to. Concerned about another

lawsuit, she called Midland Credit to contest the collection

effort. Then she contacted a lawyer and sued Midland

Credit.

Pierre claimed that the collection letter violated various

provisions of the Fair Debt Collection Practices Act

(“FDCPA”). She alleged that the letter falsely represented

the character and legal status of the debt, 15 U.S.C.

§ 1692e(2); was a deceptive means to attempt to collect the

debt, id. § 1692e(10); and was an unfair or unconscionable

means to attempt to collect the debt, id. § 1692f. She sought

4 Nos. 19-2993 & 19-3109

to represent a class of Illinois residents who had received

similar letters from Midland Credit.

The district judge certified the class and entered sum-

mary judgment in its favor on the merits based on our

holding in Pantoja v. Portfolio Recovery Associates, LLC,

852 F.3d 679 (7th Cir. 2017). Damages were left to a jury, and

it awarded just over $350,000. (Pierre also brought individu-

al claims, but those were settled before final judgment so we

mention them no further.)

Midland Credit twice asked the judge to dismiss the suit

for lack of Article III standing. Both times he declined to do

so, reasoning that the misleading nature of the letter risked

real harm to the interests that Congress sought to protect

with the FDCPA.

II. Discussion

Article III of the Constitution limits the jurisdiction of the

federal courts to “Cases” and “Controversies.” U.S. CONST.

art. III, § 2. The case-or-controversy requirement ensures that

the judiciary “confines itself to its constitutionally limited

role of adjudicating actual and concrete disputes, the resolu-

tions of which have direct consequences on the parties

involved.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 71

(2013). Requiring a plaintiff to establish standing to sue is an

essential component of the case-or-controversy limitation,

“serv[ing] to prevent the judicial process from being used to

usurp the powers of the political branches.” Clapper v.

Amnesty Int’l USA, 568 U.S. 398, 408 (2013).

Standing has three elements. A plaintiff must have (1) a

concrete and particularized injury in fact (2) that is traceable

to the defendant’s conduct and (3) that can be redressed by

Nos. 19-2993 & 19-3109 5

judicial relief. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61

(1992). Without “an injury that the defendant caused and the

court can remedy, there is no case or controversy for the

federal court to resolve.” Casillas v. Madison Ave. Assocs., Inc.,

926 F.3d 329, 333 (7th Cir. 2019).

The concreteness requirement is our concern here. A con-

crete injury is “real, and not abstract.” Spokeo, Inc. v. Robins,

578 U.S. 330, 340 (2016) (quotation marks omitted). Qualify-

ing injuries are those with “a ‘close relationship’ to a harm

‘traditionally’ recognized as providing a basis for a lawsuit

in American courts.” TransUnion, 141 S. Ct. at 2204 (quoting

Spokeo, 578 U.S. at 341). This standard includes “traditional

tangible harms, such as physical harms and monetary

harms,” as well as “[v]arious intangible harms,” such as

“reputational harms, disclosure of private information, and

intrusion upon seclusion.” Id.; see also Spokeo, 578 U.S. at 340–

42.

Congress’s decision to create a statutory cause of action

may “elevat[e] to the status of legally cognizable injuries

concrete, de facto injuries that were previously inadequate in

law.” Lujan, 504 U.S. at 578. This does not mean, however,

that Congress may “enact an injury into existence, using its

lawmaking power to transform something that is not re-

motely harmful into something that is.” TransUnion,

141 S. Ct. at 2205 (quotation marks omitted). History and

tradition remain our ever-present guides, and legislatively

identified harms must bear a close relationship in kind to

those underlying suits at common law. See Gadelhak v. AT&T

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

Until recently there was a hint that the mere “risk of real

harm” could concretely injure plaintiffs seeking money

6 Nos. 19-2993 & 19-3109

damages. Spokeo, 578 U.S. at 341. However, as the Supreme

Court clarified in TransUnion, a risk of harm qualifies as a

concrete injury only for claims for “forward-looking, injunc-

tive relief to prevent the harm from occurring.” 141 S. Ct. at

2210; see Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC),

Inc., 528 U.S. 167, 185 (2000) (“[A] plaintiff must demonstrate

standing separately for each form of relief sought.”). A

plaintiff seeking money damages has standing to sue in

federal court only for harms that have in fact materialized.

TransUnion, 141 S. Ct. at 2210–11.

Many of our recent decisions mark the line between

FDCPA violations inflicting concrete injuries and those

causing no real harm. Discussion of just a few of these leaves

the line clear enough to resolve this case. We found standing

in Ewing v. Med-1 Solutions, LLC, 24 F.4th 1146, 1149–50 (7th

Cir. 2022), where a debt collector failed to notify a credit-

reporting agency that the plaintiffs had disputed the debts in

question. There was evidence that the statutory violations

caused the plaintiffs’ credit scores to decline. Id. We reasoned

that the incomplete reporting worked a harm analogous to

that associated with common-law defamation. Id. at 1153–54.

That “intangible, reputational injury [was] sufficiently

concrete for purposes of Article III standing.” Id. at 1154.

Casillas sits on the other side of the line. A debt collector

sent Paula Casillas a notice demanding payment of a debt

and informed her that she could dispute or request verifica-

tion of it. Casillas, 926 F.3d at 332. But the notice failed to

specify that any dispute or verification request must be

made in writing to trigger certain statutory protections. Id.

The failure, though a statutory violation, caused Casillas no

harm. Id. at 334. She hadn’t even considered disputing or

Nos. 19-2993 & 19-3109 7

seeking verification of the debt, and the omission deprived

her of no benefit. Id. As such, there was nothing for the court

to remedy. See id. at 339.

We also found no standing in Larkin v. Finance System of

Green Bay, Inc., 982 F.3d 1060 (7th Cir. 2020). There the de-

fendant debt collector’s dunning letters admonished the

plaintiffs: “You want to be worthy of the faith put in you by

your creditor. … We are interested in you preserving a good

credit rating with the above creditor.” Id. at 1063 (alteration

in original). The plaintiffs alleged that this collection tactic

was deceptive and unconscionable in violation of the

FDCPA. Id. Statutory violation or not, there was no concrete

harm. Neither plaintiff paid a debt she did not owe or oth-

erwise acted to her detriment in response to the letter. Id. at

1066. There was, again, nothing for the court to remedy. See

id. at 1066–67.

With these principles and precedents in place, we turn to

this case. Pierre, as the party invoking the federal court’s

jurisdiction, bears the burden of establishing her standing to

sue. Collier v. SP Plus Corp., 889 F.3d 894, 896 (7th Cir. 2018)

(per curiam). Standing must be established “with the man-

ner and degree of evidence required at the successive stages

of the litigation.” Lujan, 504 U.S. at 561. Here, then, Pierre

needed to establish standing with evidence offered at sum-

mary judgment, and her standing must remain adequately

supported in the face of any adverse evidence introduced at

trial. See id. Whether a plaintiff has established Article III

standing is reviewed de novo. Lewert v. P.F. Chang’s China

Bistro, Inc., 819 F.3d 963, 966 (7th Cir. 2016).

Pierre argues that Midland Credit’s deceptive letter creat-

ed a risk that she might make a payment on a time-barred

8 Nos. 19-2993 & 19-3109

debt, and a payment—or even a promise to pay—risked

restarting the limitations period. See Schmidt v. Desser,

401 N.E.2d 1299, 1301 (Ill. App. Ct. 1980); see also Pantoja,

852 F.3d at 684–85 (discussing Illinois law). But critically,

Pierre didn’t make a payment, promise to do so, or other-

wise act to her detriment in response to anything in or

omitted from the letter. That aligns Pierre with the plaintiffs

in Casillas and Larkin, who received allegedly defective

letters but who did not experience any harm—or even a risk

of real harm, which we now know isn’t enough—caused by

the defects.

Pierre’s response to the letter was to call Midland Credit

to dispute the debt and to contact a lawyer for legal advice.

These are not legally cognizable harms. Making a call to a

debt collector is not closely related to an injury that our legal

tradition recognizes as providing a basis for a lawsuit. Nor is

seeking legal advice. Brunett v. Convergent Outsourcing, Inc.,

982 F.3d 1067, 1069 (7th Cir. 2020); see also Diamond v. Charles,

476 U.S. 54, 70–71 (1986). Indeed, the concreteness require-

ment would be an empty one if all it took was contacting a

lawyer and filing suit.

Psychological states induced by a debt collector’s letter

likewise fall short. Pierre testified that Midland Credit’s

letter confused her as to whether she could be sued for the

debt. Confusion, we have held, is not a concrete injury in the

FDCPA context. E.g., Markakos v. Medicredit, Inc., 997 F.3d

778, 781 (7th Cir. 2021); Brunett, 982 F.3d at 1068. She further

testified that she experienced emotional distress arising from

her concern about being sued for the debt. But worry, like

confusion, is insufficient to confer standing in this context.

Wadsworth v. Kross, Lieberman & Stone, Inc., 12 F.4th 665, 668

Nos. 19-2993 & 19-3109 9

(7th Cir. 2021); Pennell v. Glob. Tr. Mgmt., LLC, 990 F.3d 1041,

1045 (7th Cir. 2021).

Finally, Pierre points out that our decision in Pantoja in-

volved similar facts and was decided on the merits rather

than dismissed for lack of subject-matter jurisdiction. See

852 F.3d at 682. But we did not consider standing in Pantoja,

which—importantly—was decided before TransUnion. A

case that is not about standing cannot control the issue here.

See Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 144

(2011).

Pierre did not experience a concrete injury giving her

standing to pursue claims for money damages in federal

court. Accordingly, we vacate the judgment and remand

with instructions to dismiss this case for lack of subject-

matter jurisdiction.

VACATED AND REMANDED WITH INSTRUCTIONS

10 Nos. 19-2993 & 19-3109

HAMILTON, Circuit Judge, dissenting. The majority’s dis-

missal of this “zombie debt” case for lack of standing is mis-

taken. It deepens an important and growing circuit split on

the separation of powers between legislative and judicial

branches. The issue is whether Congress has the power under

the Constitution to create private causes of action under the

Fair Debt Collection Practices Act and other consumer protec-

tion statutes for injuries that are intangible but quite real. Such

injuries may include emotional distress, stress, and harm to

reputation. These harms are all real and foreseeable results of

unfair and deceptive debt-collection practices aimed directly

at the plaintiffs. Congress has authorized private actions like

this case to seek damages for them.

The majority follows several cases from the last two years

in which this court has denied standing under the FDCPA on

grounds that leave little or no room for intangible injuries,

and apparently none for “psychological states” caused by

statutory violations. These decisions have erred by failing to

give the judgments of Congress the “due respect” the Su-

preme Court’s precedents call for. They have also erred by

overlooking close historical parallels—from both common

law and constitutional law—for remedies for intangible

harms caused by many violations of the FDCPA and similar

statutes. These errors have led us to restrict standing under

consumer protection laws much more tightly than the Su-

preme Court itself has. The cumulative effect may be close to

a tipping point, leaving at least the FDCPA largely neutered

in the three states of the Seventh Circuit.

At a broader level, this court’s recent restrictions on

standing threaten to undermine congressional efforts to

protect consumers. They also threaten more broadly the

Nos. 19-2993 & 19-3109 11

appropriate separation of powers under the Constitution,

unduly restricting the legislative policy choices Congress

should be able to make in regulating interstate commerce. I

respectfully dissent.

Part I explains this case in terms of how the FDCPA applies

to collecting “zombie” debts and how defendant’s violation

of the FDCPA affected plaintiff Pierre, with a particular eye

on emotional distress, anxiety, confusion, and fear. Part II

summarizes the key lessons from the Supreme Court’s recent

cases on standing in consumer protection cases asserting

intangible injuries, Spokeo, Inc. v. Robins, 578 U.S. 330 (2016),

and TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021). Part III

applies those lessons to Pierre’s case, emphasizing first

Congress’s policy judgment to authorize damages actions for

the effects she suffered and then the common-law and

constitutional relatives of those actions and intangible harms.

Part IV reviews this court’s recent FDCPA standing cases and

explains where some have gone astray. Parts V and VI

summarize the deepening circuit split on intangible injuries

under consumer protection statutes and the importance of the

issue in terms of practical consequences and the separation of

judicial and legislative powers.

I. Zombie Debt, the FDCPA, and Pierre’s Case

Plaintiff Pierre proved that defendant Midland Credit vi-

olated the FDCPA. Midland sent plaintiff Pierre a letter care-

fully designed to try to induce her to surrender her statute of

limitations defense to an old debt, one so old it would be

known in the debt collection business as “zombie” debt. 1 The

1 See, e.g., Renae Merle, Zombie Debt: How Collectors Trick Consum-

ers into Reviving Dead Debts, Washington Post, Aug. 7, 2019, available at

12 Nos. 19-2993 & 19-3109

letter left Pierre confused and fearful. She consulted a lawyer.

She then sued on behalf of a class of debtors who received

such deceptive letters from Midland. The district court

granted summary judgment to plaintiffs on the merits, and a

jury awarded the class $350,000 in statutory damages. Both

sides appealed.

A. The FDCPA

Congress enacted the Fair Debt Collection Practices Act in

1977 in response to widespread “abusive, deceptive, and un-

fair debt collection practices.” 15 U.S.C. § 1692(a). The tar-

geted practices included “obscene or profane language,

threats of violence, telephone calls at unreasonable hours,

misrepresentation of a consumer’s legal rights, disclosing a

consumer’s personal affairs to friends, neighbors, or an em-

ployer, obtaining information about a consumer through false

pretense, impersonating public officials and attorneys, and

simulating legal process.” S. Rep. No. 95-382, as reprinted in

1997 U.S.C.C.A.N. 1695, 1696.

Congress made statutory findings that these abusive prac-

tices contributed to personal bankruptcies, marital instability,

www.washingtonpost.com/business/2019/08/07/zombie-debt-how-collec-

tors-trick-consumers-into-reviving-dead-debts/ (last visited March 30,

2022). The industry prefers a less colorful term, “out-of-statute debt.” See,

e.g., Receivables Mgmt. Ass’n, Int’l, Out-of-Statute Debt: What is a Smart,

Balanced, and Responsible Approach? (2015) (trade group policy paper on

regulatory proposals), available at https://rmaintl.org/news-press/white-

papers/ (last visited March 30, 2022). Much of this debt trades at prices of

a penny or less per dollar of face value. Consumer Financial Protection

Bureau, Market Snapshot: Online Debt Sales 9–10 (2017), available at

www.consumerfinance.gov/data-research/research-reports/market-snap-

shot-online-debt-sales/ (last visited March 30, 2022).

Nos. 19-2993 & 19-3109 13

lost jobs, and invasions of privacy. 15 U.S.C. § 1692(a). The ref-

erence to marital instability is especially significant here,

where a key question is whether emotional distress, fear, and

anxiety prompted by a violation of the Act will support stand-

ing to recover statutory damages. More on that in Part III. The

Act imposes substantive and procedural requirements on

debt collectors, requiring certain specific practices and out-

lawing others, while including general prohibitions on “false,

deceptive, or misleading representations or means,” § 1692e,

and “unfair or unconscionable means” to collect debts,

§ 1692f.

Relevant to the issue of standing for intangible injuries, in-

cluding emotional distress, fear, and anxiety, the Act prohib-

its many actions likely to cause those reactions. These include

threats, obscene or profane language, and harassing calls,

§ 1692d, and false or misleading representations or implica-

tions on many subjects, § 1692e. The Act also imposes many

specific requirements intended to make sure the debtor re-

ceives accurate and clear (i.e., not confusing) information

about the amount and nature of the debt and the identity of

the creditor. § 1692g.

The Act provides for enforcement by federal agencies,

§ 1692l, but the more important enforcement tool is a private

civil action under § 1692k. The Act authorizes actual dam-

ages, without limits. Congress also recognized that many abu-

sive practices might not produce measurable harms. To en-

courage enforcement in such cases, the Act authorizes

14 Nos. 19-2993 & 19-3109

additional damages of up to $1,000 in an individual’s case and

up to $500,000 in a class action. 2

B. Collecting Debts Barred by Statutes of Limitations

One area of concern under the Act is deceptive and abu-

sive efforts by debt collectors to collect debts so old that they

cannot be enforced in court. Such debts, whether called “zom-

bie” or “out-of-statute,” can offer surprising potential for

profit. As noted, the “rights” to such debts may be purchased

for less than a penny on the dollar of the face amount. Collect-

ing just a few percent of the face value of a portfolio of such

debts can turn a large profit.

We explained the potential for abuse in Pantoja v. Portfolio

Recovery Associates, LLC, 852 F.3d 679 (7th Cir. 2017), McMahon

v. LVNV Funding, LLC, 744 F.3d 1010 (7th Cir. 2014), and

Phillips v. Asset Acceptance, LLC, 736 F.3d 1076 (7th Cir. 2013).

Those opinions cite similar decisions of other courts. It is well

established that a debt collector violates the Act by either

suing or threatening to sue to collect a debt after the statute of

limitations has run. E.g., Pantoja, 852 F.3d at 683. In Pantoja we

also affirmed summary judgment against a debt collector who

had sent a collection letter offering to “settle” such a zombie

debt despite the carefully phrased note that, “Because of the

2In its report on the final bill, the Senate Committee on Banking,

Housing, and Urban Affairs described the new law as “primarily self-

enforcing; consumers who have been subjected to collection abuses will

be enforcing compliance.” S. Rep. No. 95-382 at 5, as reprinted in 1977

U.S.C.C.A.N. 1695, 1699. The committee anticipated that the legislation

would not result in any additional costs to the government. Id. at 1700. The

plain implication was that no personnel or money would be provided to

the FTC or other agencies to enforce the new Act, leaving the private civil

action as the primary enforcement mechanism.

Nos. 19-2993 & 19-3109 15

age of your debt, we will not sue you for it and we will not

report it to any a credit reporting agency.” Id. at 682. Pantoja

and other cases have stopped short of declaring efforts to

collect such out-of-statute per se illegal (as long as there is no

litigation or threat of litigation). Still, the potential for profit—

from buying such debts at less than a penny on the dollar and

somehow “persuading” a few debtors to pay something—

creates an obvious temptation. A buyer of these debts has a

strong incentive to prey on unsophisticated consumers,

pushing the envelope with abusive and deceptive tricks to

give at least a few debtors the false impression that they need

to pay. Given the high potential for abuse and the miniscule

market value of such zombie debts, it’s hard to see any good

reason not to outlaw these efforts altogether.

Letters like Midland’s can set a legal trap for debtors in

many states. A partial payment or even a promise to make a

partial payment may nullify the valid statute of limitations

defense and start the statute’s clock running all over again.

See Pantoja, 852 F.3d 684–86; Buchanan v. Northland Group, Inc.,

776 F.3d 393, 398–400 (6th Cir. 2015); McMahon, 744 F.3d at

1021; Debt Collection, 78 Fed. Reg. 67,848, 67,876 (Nov. 12,

2013) (notice of proposed rulemaking by Consumer Financial

Protection Bureau). As these cases and the CFPB recognize,

many consumers will not understand the legal effects of the

statute of limitations or the risk that they might unwittingly

lose the statute’s protections. In other words, the focus is on

the risk that consumers will be misled and confused. The con-

fusion spawned among many vulnerable recipients can pre-

dictably cause stress and anxiety, and it may lead those who

have access to a lawyer to seek guidance about their rights,

risks, and options.

16 Nos. 19-2993 & 19-3109

C. Plaintiff Pierre

That’s exactly what happened with plaintiff Pierre. Mid-

land sent her a letter claiming she owed it more than $7,000

on a zombie debt. Midland offered to “settle” this unenforce-

able debt for 60% of the face amount, as if that would have

saved her money. The letter offered different settlement op-

tions and included a “due date” for accepting one.

Central to standing, Pierre testified in detail about the let-

ter and her reaction. The prospect of a revived $7,000 debt

threatened her with financial catastrophe. She was confused

and afraid that she might be sued again on this debt. (An ear-

lier suit on the same debt had been dismissed years earlier.)

Pierre described her “emotional duress,” and she was anxious

about the prospect of the cost and hassle of more litigation.

She was afraid of repercussions if she did not answer the letter

and if she did not accept one of the settlement options. She

was also afraid that her credit rating would be hurt. Pierre

sought out a lawyer. She had read the statement that Midland

would not sue her on the debt, but she worried that Midland

could refer the debt to another party who would sue her or

hurt her credit rating. Her testimony on these topics appears

in her deposition at pages 67, 79, 82, 84, 104, 108–09, 114–17,

and 141. At trial, she described her surprise, confusion, and

distress when she received the letter claiming she owed more

than twice as much on a debt that she thought she had suc-

cessfully disputed years earlier. Dkt. 262 at 52–73. 3

In other words, much of Pierre’s reaction, apart from her

consulting a lawyer and not actually paying, was just the kind

3

I cite both her deposition and trial testimony because standing was

never contested in the district court in 2019.

Nos. 19-2993 & 19-3109 17

of reaction that Midland hoped for by its violation of the Act.

Her stress and fear were some of the intangible but real harms

that Congress enacted the FDCPA to protect her from. Pierre

avoided the worst, most tangible potential consequences, like

reviving the debt. But she still suffered concrete and particu-

larized harm from the statutory violation in the form of stress,

anxiety, confusion, and emotional distress. 4

II. Standing and Intangible Injuries: Spokeo and TransUnion

The majority opinion finds that none of the harm Pierre

experienced was enough to show “injury in fact,” relying pri-

marily on recent decisions by this court. The critical point in

the majority opinion is its assertion that “Psychological states

induced by a debt collector’s letter,” including emotional dis-

tress, confusion, and anxiety, all fall short of showing concrete

injury sufficient to support the civil remedy that Congress au-

thorized. Ante at 8, citing Wadsworth v. Kross, Lieberman &

Stone, Inc., 12 F.4th 665, 668 (7th Cir. 2021); Markakos v. Medi-

credit, Inc., 997 F.3d 778, 781 (7th Cir. 2021); Pennell v. Global

Trust Mgmt., LLC, 990 F.3d 1041, 1045 (7th Cir. 2021); and Bru-

nett v. Convergent Outsourcing, Inc., 982 F.3d 1067, 1068 (7th

Cir. 2020).

Those cases rejecting emotional distress, confusion, and

anxiety as sufficient injuries built their analyses on two recent

Supreme Court decisions, Spokeo and TransUnion, about

4 In some debt-collection cases, the debtor may experience emotional

distress and anxiety because of serious underlying financial problems, not

a minor, hypertechnical violation of the FDCPA. In the case of an out-of-

statute zombie debt, however, the effort to collect is an attempt to re-open

a closed chapter. That may easily cause significant additional distress and

anxiety, as Pierre’s testimony described.

18 Nos. 19-2993 & 19-3109

standing under another consumer protection law, the Fair

Credit Reporting Act, but our cases have gone too far in

restricting standing, losing sight of the limits of these

Supreme Court decisions and the analysis they require. As

Judge Ripple put it, we have been “traveling far out in front

of our Spokeo-provided headlights,” and I would now add, the

TransUnion-provided headlights. See Markakos, 997 F.3d at

784 (Ripple, J., concurring in the judgment).

Spokeo and TransUnion established that a bare statutory vi-

olation is not necessarily enough to support standing. Both

cases, however, left Congress much more room than our re-

cent cases have to provide statutory remedies for violations of

consumer protection laws that inflict intangible harm without

inflicting measurable financial harm on the victim.

Starting with Spokeo, Inc. v. Robins, 578 U.S. 330 (2016), the

defendant was a consumer reporting agency that generated

profiles of individual consumers. Plaintiff Robins discovered

that his Spokeo profile contained inaccurate information. He

sued for an allegedly willful violation of the Fair Credit Re-

porting Act’s requirement to use reasonable procedures to as-

sure maximum possible accuracy of such information. The

Supreme Court held that the alleged statutory violation re-

garding his information was not enough, by itself, to establish

the concrete and particularized injury in fact needed for con-

stitutional standing. The Court remanded the case to the

Ninth Circuit for further consideration of standing.

Along the way, the Court said that a plaintiff must allege

and prove a “concrete” injury, but the Court also made clear

that an intangible injury could be concrete for purposes of

standing. 578 U.S. at 340–41. The key question in Spokeo and

in cases like Pierre’s is when an intangible injury is sufficiently

Nos. 19-2993 & 19-3109 19

concrete. To answer that, Spokeo teaches, “both history and the

judgment of Congress play important roles.” Id. at 340. The

Court told us to consider “whether an alleged intangible harm

has a close relationship to a harm that has traditionally been

regarded as providing a basis for a lawsuit in English or

American courts,” and to treat the judgment of Congress as

“instructive and important.” Id. at 341.

Spokeo also cited Lujan v. Defenders of Wildlife, 504 U.S. 555,

578 (1992), for the proposition that Congress may elevate to

the status of legally cognizable injuries harms that were pre-

viously not adequate to support a case. The Spokeo Court con-

cluded that a violation of the FCRA’s procedural require-

ments could result in cognizable harm, but memorably

warned that a “bare procedural violation,” such as a report of

an incorrect zip code, would not be enough by itself to estab-

lish concrete harm. 578 U.S. at 342. 5

In another FCRA case, TransUnion LLC v. Ramirez, 141 S.

Ct. 2190 (2021), a major credit reporting agency offered to tell

creditors whether particular consumers might be on a govern-

ment list of suspected terrorists, drug-traffickers, and others

with whom business dealings are generally unlawful. Lots of

5 On remand in Spokeo, the Ninth Circuit found that the plaintiff had

alleged a sufficiently concrete harm to sue. Giving deference to the judg-

ment of Congress, the Ninth Circuit found that dissemination of false in-

formation in consumer reports posed a risk of serious harm and that con-

sumers’ interests in accurate information resembled reputational and pri-

vacy interests long protected under tort law. 867 F.3d 1108, 1113–15 (9th

Cir. 2017). The court also concluded that the alleged inaccuracies regard-

ing plaintiff Robins were neither harmless nor trivial, like the Supreme

Court’s hypothetical wrong zip code. Id. at 1116–17. The Supreme Court

denied further review in the case. 138 S. Ct. 931 (2018).

20 Nos. 19-2993 & 19-3109

law-abiding Americans share first and last names with people

on the government’s list, and TransUnion identified such peo-

ple as “potential matches” for the terrorist list. When plaintiff

Ramirez tried to buy a car, his name turned up as a potential

match. The dealer refused to sell him the car. Ramirez sued

TransUnion under the FCRA on behalf of a class for failing to

use reasonable measures to ensure that it distributed accurate

information.

All class members in TransUnion had viable FCRA claims

as a matter of statute. The issue for the Court was standing

under Article III of the Constitution. As in Spokeo, the key

question was whether the intangible harms claimed by the

class members were sufficiently concrete. The Court echoed

Spokeo in saying that intangible harms close to those tradition-

ally recognized in the law were sufficient, including the loss

of a constitutional right. 141 S. Ct. at 2204 (citing freedoms of

speech and religion). The Court also repeated that courts must

afford “due respect” to Congress’s decision to create a private

right of action for statutory violations, though without giving

Congress a blank check to “transform something that is not

remotely harmful into something that is.” Id. at 2204–05.

The Court gave more specific meaning to this abstract

guidance in its different treatment of two subclasses. For one

subclass, TransUnion files listed them as “potential matches”

for the suspected terrorist list, but TransUnion had never pro-

vided that information to any potential creditors during the

relevant period. Id. at 2209. Those class members lacked

standing, the Court said. The undisclosed information simply

had not caused them any harm. There was no evidence the

members of that subclass had even known of the false infor-

mation, let alone been affected by it. The plaintiffs also argued

Nos. 19-2993 & 19-3109 21

that the false information in those files put them at serious risk

of having the false information disseminated to creditors in

the future. The Court rejected that theory for standing, at least

for a damages claim. Id. at 2210.

The other subclass in TransUnion presented an easier ques-

tion. The misleading information about them was actually

sent to third parties. The Court (including all four dissenters)

agreed that those plaintiffs had standing. See 141 S. Ct. at

2208–09. The majority compared the misleading credit reports

to the tort of defamation. The Court rejected TransUnion’s at-

tempt to distinguish its violations from defamation by argu-

ing that merely “misleading” information was not literally

false. The Court explained: “In looking to whether a plaintiff’s

asserted harm has a ‘close relationship’ to a harm traditionally

recognized as a basis for a lawsuit in American courts, we do

not require an exact duplicate.” Id. at 2209.

For this case of zombie debt under the FDCPA, most sig-

nificant is what the Court did not say about the plaintiffs who

had standing. It did not ask for evidence that the disclosures

caused financial harm, that they interfered with specific trans-

actions, or that they altered the plaintiffs’ lives or behavior. In

short, it did not ask for any of the sorts of evidence of harm

that the majority here and our court in other cases has de-

manded. The Court did not even ask for evidence of emo-

tional harm or other actual disruptions of the plaintiffs’ lives.

The successful plaintiffs in TransUnion asserted harm similar

to that in a common-law case for defamation per se, where

harm to reputation is presumed and damages may be

awarded without more specific proof of harm. That was

enough. 141 S. Ct. at 2208–09.

22 Nos. 19-2993 & 19-3109

Spokeo and TransUnion made clear that a plaintiff’s proof

of all elements of a statutory cause of action does not neces-

sarily show a concrete and particularized injury to satisfy con-

stitutional standing. TransUnion went a step further in reject-

ing standing for damages claims based on only a risk of future

harm. Both cases, however, emphasized the need to give con-

siderable deference—“due respect”—to the judgment of Con-

gress and to allow standing based on injuries similar, not

identical, to those long recognized in law. 6

III. Applying Spokeo and TransUnion Here

Plaintiff Pierre’s claim easily satisfies the Supreme Court’s

standing requirements. She proved all elements of an FDCPA

claim for a deceptive unfair practice. She satisfied the consti-

tutional requirements of Spokeo and TransUnion by offering

evidence of harms that, first, lie close to the heart of the pro-

tection Congress reasonably tried to offer consumer debtors

in the FDCPA, and second, bear close relationships to harms

long recognized under the common law and constitutional

law.

A. The Judgment of Congress

Congress wanted to provide a remedy for consumers sub-

jected to abusive practices, including “obscene or profane lan-

guage, threats of violence, telephone calls at unreasonable

hours, misrepresentation of a consumer’s legal rights,

6TransUnion also noted that the plaintiffs who lacked standing had not

presented evidence of emotional injury. The Court plainly left open the

possibility that a plaintiff could show standing by showing that her

knowledge of a serious risk caused its own emotional or psychological

harm. 141 S. Ct. at 2211 & n.7. Our recent decisions close that door in this

circuit.

Nos. 19-2993 & 19-3109 23

disclosing a consumer’s personal affairs to friends, neighbors,

or an employer, obtaining information about a consumer

through false pretense, impersonating public officials and at-

torneys, and simulating legal process.” S. Rep. No. 95-382 at

2, as reprinted in 1997 U.S.C.C.A.N. 1695, 1696. In the statutory

findings, Congress said abusive practices contributed to per-

sonal bankruptcies, marital instability, job losses, and inva-

sions of privacy. 15 U.S.C. § 1692(a). The statutory reference

to marital instability and the prohibitions on using threats, ob-

scene language, and harassing calls, § 1692d, show that Con-

gress recognized how such abusive practices could upset the

lives of those targeted by them. See Demarais v. Gurstel Chargo,

P.A., 869 F.3d 685, 692 (8th Cir. 2017) (making this point in

finding FDCPA standing based on mental distress resulting

from attempt to collect out-of-statute “zombie” debt).

The emotional distress, confusion, and anxiety suffered by

Pierre in response to the zombie debt collection effort fit well

within the harms that would be expected from many of the

abusive practices, regardless of whether the debtor actually

made a payment or took some other tangible action in re-

sponse to them. Standing for Pierre thus fits well within Con-

gress’s judgments about actionable harms. As the Supreme

Court said in Spokeo, Congress may “elevat[e] to the status of

legally cognizable injuries concrete, de facto injuries that were

previously inadequate in law.” 578 U.S. at 341, quoting Lujan,

504 U.S. at 578.

B. Historical Guides

TransUnion added that Congress “may not simply enact

an injury into existence, using its lawmaking power to trans-

form something that is not remotely harmful into something

that is.” 141 S. Ct. at 2205, quoting Hagy v. Demers & Adams,

24 Nos. 19-2993 & 19-3109

882 F.3d 616, 622 (6th Cir. 2018). But that is not what hap-

pened here. Midland’s violation of the FDCPA and the intan-

gible but real harms that Pierre suffered bear close relation-

ships to those recognized in both tort law and constitutional

law.

1. Tort Law Parallels

Start with intentional or reckless infliction of emotional

distress. “One who by extreme and outrageous conduct inten-

tionally or recklessly causes severe emotional distress to an-

other is subject to liability for such emotional distress….” Re-

statement (Second) of Torts § 46(1) (Am. L. Inst. 1965). 7 Such

tort cases often pose issues about what conduct is “extreme

and outrageous” and when emotional distress is sufficiently

severe. In enacting the FDCPA and its remedy for statutory

damages, Congress itself outlawed the conduct that harmed

Pierre.

The emotional distress, anxiety, fear, and stress she expe-

rienced were foreseeable, and arguably intended, responses

to defendant’s attempt to collect the zombie debt. Congress

told the federal courts to provide a damages remedy for such

conduct. That choice is well within Congress’s legislative

powers over interstate commerce to go beyond the common

law. “To say that there is no injury in this economy when a

person receives a dunning letter demanding money that is not

owed not only ignores the realities of everyday life, it also

7 For the sake of (relative) brevity, this discussion of tort-law parallels

draws primarily on the Restatement (Second) of Torts, published in the

years leading up to and right around the enactment of the FDCPA. The

first and third Restatements, case law from around the nation, and other

secondary sources offer further support for the points in the text.

Nos. 19-2993 & 19-3109 25

ignores the findings of Congress and constitutes a direct af-

front to a congressional prerogative at the core of the legisla-

tive function.” Markakos, 997 F.3d at 785 (Ripple, J., concurring

in judgment); Demarais, 869 F.3d at 692 (attempt to collect debt

not owed caused real and foreseeable mental distress familiar

to law).

The torts of defamation and invasion of privacy and rem-

edies for them also bear close relationships to the FDCPA and

its private right of action. As noted, TransUnion invoked the

parallel to defamation per se to find standing for Mr. Ramirez

and the other plaintiffs whose potential listing were sent to

potential creditors. 141 S. Ct. at 2209. We drew upon the def-

amation per se parallel in Ewing v. Med-1 Solutions, LLC, 24

F.4th 1146, 1151–54 (7th Cir. 2022). We held correctly that

FDCPA plaintiffs whose debts were reported without noting

they were disputed had standing based on publication of false

or misleading information to third parties. We relied on the

obvious parallel to defamation per se. No more specific show-

ing of injury was required.

Other FDCPA violations parallel the tort of invasion of pri-

vacy, including its branches for intrusion upon seclusion, un-

reasonable publicity given to a person’s private life, and pub-

licity that places a person in a false light before the public. See

Restatement (Second) of Torts § 652A et seq. (Am. L. Inst.

1977); Lupia v. Medicredit, Inc., 8 F.4th 1184, 1191–93 (10th Cir.

2021) (FDCPA plaintiff had standing based on harms akin to

those caused by invasion of privacy in form of intrusion upon

seclusion); St. Pierre v. Retrieval-Masters Creditors Bureau, Inc.,

898 F.3d 351, 357 (3d Cir. 2018) (FDCPA plaintiff had standing

for harm akin to unreasonable publicity of private life branch

of invasion of privacy).

26 Nos. 19-2993 & 19-3109

The majority here, though, adopts a sweeping rejection of

standing based on “psychological states” induced by FDCPA

violations. We should instead recognize that, more generally,

the common law has long authorized damages for emotional

distress in a wide range of cases lacking tangible injury. Sec-

tion 905 of the Restatement (Second) of Torts (Am. L. Inst.

1979) states that compensatory damages may be awarded for

emotional distress. The comments explain that the principal

element of damages in actions for assault and defamation,

among other torts, is “frequently the disagreeable emotion ex-

perienced by the plaintiff,” § 905 cmt. c, and that the “mental

distress known as humiliation” may also support a damages

award, cmt. d. Section 924 states: “One whose interests of per-

sonality have been tortiously invaded is entitled to recover

damages for past or prospective (a) bodily harm and emo-

tional distress….” Comment a explains that this rule reaches

assault (where no physical contact is made) and insulting con-

duct amounting to a tort. See also § 623 (emotional distress

damages for defamation); Gertz v. Robert Welch, Inc., 418 U.S.

323, 350 (1974) (“the more customary types of actual harm in-

flicted by defamatory falsehood include impairment of repu-

tation and standing in the community, personal humiliation,

and mental anguish and suffering”).

Consider the difference between assault and battery, with

the question of standing in mind. What harm is suffered in an

assault that stops short of battery? Not physical harm, but fear

and emotional distress. Does that mean a victim of an assault

lacks Article III standing to sue in federal court? Of course not.

The fear and emotional distress are sufficiently concrete and

particularized to support standing. The same should be true

here, especially based on the policy choice by Congress to

Nos. 19-2993 & 19-3109 27

offer this protection for vulnerable consumers from abusive

and deceptive bullying by debt collectors.

After Spokeo, I would not contend that every FDCPA vio-

lation can support standing. The Act outlaws some “bare pro-

cedural violations” that may not cause “injury in fact.” But the

violation that plaintiff Pierre experienced with Midland’s ef-

fort to pressure or trick her into paying the zombie debt, in-

ducing fear, anxiety, confusion, and more general emotional

distress, easily fits into this dimension of the common law of

torts.

2. Constitutional Law Parallels

The “history and tradition” relevant to standing for intan-

gible injuries are not limited to the common law. TransUnion,

141 S. Ct. at 2204. The United States Constitution protects peo-

ple from many wrongs that may cause intangible injuries, in-

cluding emotional distress and humiliation. A plaintiff may

not recover damages for the “abstract” value of a constitu-

tional right, Memphis Comm. School Dist. v. Stachura, 477 U.S.

299, 308 (1986), but a plaintiff may recover for intangible emo-

tional distress and humiliation caused by constitutional vio-

lations.

Our circuit’s pattern jury instructions for § 1983 cases re-

flect this settled law by allowing consideration of mental and

emotional pain and suffering. Federal Civil Jury Instructions

of the Seventh Circuit § 7.26 (2017). Such damages for intan-

gible injuries can be appropriate for denials of free speech,

free exercise of religion, or due process of law. See Carey v.

Piphus, 435 U.S. 247, 264 (1978) (mental and emotional distress

constitute compensable injury in § 1983 cases); Young v. Lane,

922 F.2d 370, 374 (7th Cir. 1991) (recognizing prisoners could

28 Nos. 19-2993 & 19-3109

recover damages for denial of free exercise rights if they could

show violations of clearly established law); Williams v. Lane,

851 F.2d 867, 876 (7th Cir. 1988) (same).

Damages for what the majority calls “psychological

states” are also available for intrusions on privacy in violation

of the Fourth Amendment and for threats of clearly excessive

force under the Fourth Amendment. E.g., Baird v. Renbarger,

576 F.3d 340 (7th Cir. 2009) (affirming denial of qualified im-

munity where officer pointed submachine gun at persons

who posed no danger at site of search involving suspected

non-violent crime). Humiliating strip searches of prisoners,

detainees, and suspects may violate Fourth and/or Eighth

Amendment rights under some circumstances, and damages

for the intangible humiliation and emotional distress can be

appropriate. E.g., Henry v. Hulett, 969 F.3d 769 (7th Cir. 2020)

(en banc).

These examples should be sufficient to make the general

point: plaintiffs can establish standing in a wide variety of

constitutional cases by alleging and showing they have suf-

fered various forms of emotional distress.

Consider also the issue of standing in constitutional cases

where plaintiffs seek or are awarded only nominal damages.

The Supreme Court held in Uzuegbunam v. Preczewski, 141 S.

Ct. 792 (2021), that where the plaintiff proved completed

violations of his First Amendment rights, his request for only

nominal damages—without proof of compensatory

damages—was sufficient to satisfy the redressability element

of Article III standing. The Court made clear that the plaintiff

still needed to show an actual injury in the form of a

completed violation of his rights, id. at 802 n.*, but it’s difficult

to reconcile the majority’s holding here with Uzuegbunam. If

Nos. 19-2993 & 19-3109 29

standing had been lacking in Uzuegbunam for lack of injury,

the Court would have been obliged to order dismissal for lack

of standing, regardless of the redressability element.

Justice Thomas’s opinion for the Court in Uzuegbunam

provides a good survey of the history and importance of nom-

inal damage awards in the common law and constitutional

law going back to the earliest years of the Republic and in

English courts. See id. at 798–800, discussing, e.g., Webb v.

Portland Mfg. Co., 29 F. Cas. 506, 508–09 (C.C. Me. 1838) (Story,

J.). The general principle is that nominal damages are availa-

ble and even presumed where a plaintiff proves a violation of

her legal rights. If that’s correct under both the common law

and constitutional law, I have trouble seeing why Congress

cannot authorize a modest damages remedy where a plain-

tiff’s statutory rights are violated.

To sum up, if we follow the teachings of Spokeo and

TransUnion—if we give “due respect” for Congress’s judg-

ment and recognize that Pierre’s statutory claim and intangi-

ble injuries fit closely in legal history and tradition—then we

should affirm. Article III, Spokeo, and TransUnion do not pro-

hibit standing for this statutory claim. The FDCPA civil action

is constitutional as applied to a host of violations that cause

intangible but real injuries like Pierre’s. 8

8 One path toward more specific guidance for lower federal courts for

these problems would be to embrace the distinction between private

rights and public rights. Justice Thomas endorsed this analysis in his con-

currence in Spokeo, 578 U.S. at 344‒46, and his dissent in TransUnion: “At

the time of the founding, whether a court possessed judicial power over

an action with no showing of actual damages depended on whether the

plaintiff sought to enforce a right held privately by an individual or a duty

owed broadly to the community.” 141 S. Ct. at 2217. The distinction

30 Nos. 19-2993 & 19-3109

IV. The Seventh Circuit’s Restrictions on Standing in Consumer

Protection Cases

The majority reaches the opposite result by following sev-

eral decisions this court issued beginning in December 2020,

ordering dismissal of previously viable FDCPA claims for

lack of standing. I focus here on those the majority relies upon

to reject “psychological states,” such as emotional distress,

anxiety, and confusion, as grounds for standing here.

The key opinions supporting the majority’s rejection of

standing for Pierre are Brunett v. Convergent Outsourcing, Inc.,

982 F.3d 1067 (7th Cir. 2020), and Gunn v. Thrasher, Buschmann

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

In Brunett, the debt collector sent a letter offering to settle

a debt but warning that the IRS would be notified of any for-

giveness of more than $600. The plaintiff said she had been

confused and intimidated by the offer and the threat of notice

to the IRS, and she had consulted a lawyer for advice. The

panel found that she lacked standing. The opinion seemed to

fear universal standing, equating standing based on the plain-

tiff’s emotional distress and confusion from a misleading

dunning letter sent to her with a taxpayer who wanted to know

how her tax dollars were spent on covert projects. 982 F.3d at

1068–69, citing United States v. Richardson, 418 U.S. 166 (1974).

between private and public rights could go a long way to reconcile Su-

preme Court precedents on nominal damages with its conflicting and

sometimes Delphic opinions on standing for intangible injuries. See also

Sierra v. Hallandale Beach, 996 F.3d 1110, 1138‒39 (11th Cir. 2021) (Newsom,

J., concurring); William Baude, Standing in the Shadow of Congress, 2016

Sup. Ct. Rev. 197, 227‒31 (2016). Plaintiff Pierre has easily shown standing

under the majority opinions in Spokeo and TransUnion, and she would also

have standing based on her assertion of a private right created by statute.

Nos. 19-2993 & 19-3109 31

Consulting a lawyer could not be enough, we said, lest we

open the door to “universal standing.” There is of course

plenty of room between allowing a statutory claim for fore-

seeable harms suffered by the person targeted by the viola-

tion, on one hand, and “universal standing” on the other. Bru-

nett did not address the “due respect” for congressional

choices. Nor did it engage with the facts that the plaintiff was

the intended target of the alleged deception and that the

FDCPA is supposed to protect her from such deception and

intimidation. Nor did Brunett consider whether the plaintiff’s

alleged injuries were closely related to injuries recognized un-

der the common law.

In Gunn, a debt collector sent a letter threatening foreclo-

sure to enforce a debt to a homeowners’ association. The debt-

ors did not pay up, and the collector sued in state court for

breach of contract but not foreclosure. The debtors sued un-

der the FDCPA on the theory that the threat to foreclose must

have been deceptive because it would make no economic

sense to seek foreclosure for a debt of just $2,000. 982 F.3d at

1070. The district court had sensibly dismissed that unsympa-

thetic suit on the merits. On appeal, however, our opinion in-

stead found no standing. The debtors claimed standing based

on annoyance and intimidation, without identifying how the

allegedly deceptive threat had affected their actions. The

Gunn opinion scoffed at the psychological effects of deceiving

particular debtors, again comparing their claims to the very

un-particularized claims in public-rights suits asserting tax-

payer standing or environmental suits brought by citizens

with no direct connection to the environment in question. The

Gunn opinion’s examples have little to do with the FDCPA or

the harms that deceptive violations cause for the consumer-

debtors it is intended to prevent or remedy. See 982 F.3d at

32 Nos. 19-2993 & 19-3109

1071–72. And as in Burnett, the Gunn opinion did not address

the “due respect” for Congress or the relevant common-law

parallels.

Burnett and Gunn have been followed in several opinions

that applied but did not otherwise justify the broad but mis-

taken view that emotional distress, anxiety, and other “psy-

chological states” caused by FDCPA violations cannot sup-

port standing. A week after we issued Gunn and Burnett, a

panel issued Nettles v. Midland Funding LLC, 983 F.3d 896 (7th

Cir. 2020), where a debt collector violated the Act by sending

a collection letter that overstated the amount of the debt by

about $100. The debt collector took an interlocutory appeal

from a denial of arbitration, but the panel ordered dismissal

for lack of standing. Plaintiff Nettles apparently did little to

support standing, arguing primarily that we should allow

standing based on only a statutory violation. That would have

been contrary to Spokeo. Nettles also argued, as “something of

an afterthought at oral argument,” that annoyance and con-

sulting a lawyer gave her standing. The Nettles panel said

without elaborating that Gunn had rejected those grounds for

standing. 983 F.3d at 900.

In Pennell v. Global Trust Mgmt., LLC, 990 F.3d 1041 (7th

Cir. 2021), the plaintiff and her lawyer had notified her lender

that she refused to pay the debt and that any future contact

should be through her lawyer. A debt collector sent a dunning

letter to the plaintiff anyway. The FDCPA prohibits bypassing

a lawyer after such notice. 15 U.S.C. § 1692c(a)(2). Plaintiff

sued, alleging that the direct communication caused stress

and confusion, making her think that she had no rights under

the Act. The district court found no violation because there

was no showing that the debt collector had known of the

Nos. 19-2993 & 19-3109 33

plaintiff’s demand to communicate only through her lawyer.

The Pennell panel held instead that the plaintiff lacked stand-

ing, following the broad statement in Brunett that “confusion

is not itself an injury” and adding that stress without “physi-

cal manifestations and no qualified medical diagnosis” was

not sufficient for standing. 990 F.3d at 1045. 9

Next in this series came Markakos v. Medicredit, Inc., 997

F.3d 778 (7th Cir. 2021), which drew three separate opinions

that illuminate the problem we face in this case. The debt col-

lector sent Markakos two dunning letters listing different

amounts for the debt and the wrong name of the creditor. The

FDCPA requires a debt collector to state accurately the

amount of the debt and the name of the creditor. 15 U.S.C.

§ 1692g(a)(1) & (2). The panel rejected the plaintiff’s claim of

an informational injury because she did not show that accu-

rate information would have changed her response. The

9 After the appellate panel raised the issue of standing for the first time

on appeal, the plaintiff argued that the letter harmed her by intruding on

her privacy, relying on the obvious similarity to an invasion of privacy

tort. The panel rejected this argument because the complaint had not in-

cluded such an allegation. 990 F.3d at 1045. Under our usual practice, the

plaintiff would have been entitled at least to amend her complaint (a) in

response to the newly raised standing issue, and especially (b) in response

to significant new precedents issued even after the oral argument in the

case. See Bazile v. Finance System of Green Bay, Inc., 983 F.3d 274, 281 (7th

Cir. 2020) (remanding FDCPA case for possible amendment to pleadings

to cure standing problem: “True, her complaint didn’t detail such [a reli-

ance] injury. But ‘[c]omplaints need not be elaborate.’”); see generally, e.g.,

Runnion v. Girl Scouts of Greater Chicago and Northwest Indiana, 786 F.3d 510,

519–20 (7th Cir. 2015) (when original complaint is dismissed, district

courts should ordinarily allow at least one opportunity to amend the com-

plaint unless it is certain that amendment would be futile or otherwise

unwarranted, collecting cases).

34 Nos. 19-2993 & 19-3109

plaintiff also alleged confusion and aggravation, but the lead

opinion rejected those grounds for standing based on Gunn

and Brunett. 997 F.3d at 781.

Judges Ripple and Rovner wrote separately in Markakos.

They concurred in the judgment based on stare decisis but crit-

icized the recent precedents restricting FDCPA standing.

Judge Ripple pointed out that our court was effecting “a direct

and complete frustration of Congress’s attempt to regulate

commerce in the manner that it has chosen.” 997 F.3d at 783.

Spokeo did not provide a “firm foundation for the construction

of the ambitious enterprise that the court seems to be building

at such a rapid pace.” Id.; accord, Thornley v. Clearview AI, Inc.,

984 F.3d 1241, 1251 (7th Cir. 2021) (Hamilton, J., concurring).

Judge Ripple criticized the recent opinions as having ignored

the limits of Spokeo and the importance of both historical prac-

tice and congressional judgments. The substantive violations

of the FDCPA in Markakos itself and other recent opinions

were “a long way from an incorrect zip code on a credit re-

port.” 997 F.3d at 784.

Judge Ripple highlighted Congress’s judgment about the

need to protect consumers from abusive debt collection prac-

tices and its choice to rely on private enforcement. He also

noted that the harms targeted under the FDCPA bear close

relationships to harms recognized in fraudulent or negligent

misrepresentation cases. Id. at 785. Judge Ripple’s opinion rec-

ognized the genuine harms the FDCPA addresses, and that

Pierre suffered in this case, in ways that our recent precedents

have failed to:

To say that there is no injury in this economy

when a person receives a dunning letter demand-

ing money that is not owed not only ignores the

Nos. 19-2993 & 19-3109 35

realities of everyday life, it also ignores the find-

ings of Congress and constitutes a direct affront

to a congressional prerogative at the core of the

legislative function. The court’s failure to recog-

nize the injury that Congress saw and ad-

dressed simply testifies to our failure to appre-

ciate how the people we judicially govern live,

or more precisely, it testifies to our failure to de-

fer to the congressional appreciation as to how

our fellow citizens live. The Supreme Court’s

holding in Spokeo provides no justification for

our embarking on such a precarious course. I

fear we have given Congress’s judgment too lit-

tle attention and erected an unnecessary consti-

tutional barrier to enforcement of the FDCPA.

Id. (emphasis added).

That concurring opinion apparently led the author of the

lead opinion to defend the wisdom of the recent precedents.

See 997 F.3d at 781–82. That defense did not, however, ad-

dress the respect due to Congress’s policy choices and the

close relationships between the alleged harms and those long

recognized in common law and constitutional law. That de-

fense drew a further concurrence from Judge Rovner, who

joined in the criticism of our recent standing precedents, care-

fully described the emerging circuit split, and hoped for fur-

ther guidance from the Supreme Court. Id. at 785–89.

Most recently, in Wadsworth v. Kross, Lieberman & Stone,

Inc., 12 F.4th 665 (7th Cir. 2021), also cited by the majority

here, we reversed a plaintiff’s judgment under the FDCPA

and ordered dismissal for lack of standing. An employer

hired a debt collector to try to claw back a hiring bonus from

36 Nos. 19-2993 & 19-3109

a recent hire whom it had soon fired. The former employee

sued the collector under the FDCPA for failing to provide no-

tice of her rights under § 1692g(a) and failing to identify itself

as a debt collector and its efforts as an attempt to collect a debt.

The district court had granted summary judgment for the

plaintiff on the merits, but our panel found no standing.

To show standing, Wadsworth did not try to show she had

made payments she would not have made but for the viola-

tions. She relied on what the panel brushed off as “only …

emotional harms”—personal humiliation, embarrassment,

anxiety, stress, mental anguish and emotional distress. 12

F.4th at 668 (emphasis added). The panel rejected standing in

broad terms: “As our bevy of recent decisions on FDCPA

standing makes clear, anxiety and embarrassment are not in-

juries in fact,” “stress” is not a concrete injury, and it is not

enough for the plaintiff to be “annoyed” or “intimidated” by

a violation or to experience “infuriation or disgust” or a

“sense of indignation” or a “state of confusion.” Id. Other-

wise, the panel wrote, “then everyone would have standing

to litigate about everything.” Id., quoting Brunett, 982 F.3d at

1068–69. The panel concluded that an FDCPA plaintiff can sue

only if she suffered “a concrete harm that he wouldn’t have

incurred had the debt collector complied with the Act.” Id. at

669, citing Casillas, 926 F.3d at 334.

Again, there is a very long distance between “everyone

[having] standing to litigate about everything” and respecting

the choice of Congress to enforce the FDCPA with a civil rem-

edy for intangible but real and foreseeable injuries caused by

deceptive debt collection practices that were aimed directly at

the plaintiff.

Nos. 19-2993 & 19-3109 37

The concurring opinions by Judges Ripple and Rovner in

Markakos describe well where our recent FDCPA standing re-

strictions have erred. The most recent cases have paid only lip

service to the Supreme Court’s instructions in both Spokeo and

TransUnion to give due respect to Congress’s judgments

about making harms actionable. Those decisions have also

brushed off intangible harm like stress, fear, anxiety, confu-

sion, and embarrassment as grounds for standing even

though those harms have close relationships to harms long

recognized under the common law. That brush-off started

with the sweeping language and the fear of supposedly “uni-

versal standing” in Gunn and Brunett, without paying atten-

tion to both the congressional judgment and the many areas

of common law that recognize such intangible but real harms

and offer protection against them. We should overrule these

cases’ rejections of standing based on emotional distress, anx-

iety, and other psychological harm caused by FDCPA viola-

tions. I fear, however, that our circuit has committed itself so

thoroughly to this mistaken path that now only the Supreme

Court can provide a correction.

V. Other Circuits and Consequences

Most other circuits have not followed these errors, despite

a national effort by debt collectors to persuade them to do so.

The Third, Tenth, and Eleventh Circuits have been less

restrictive in allowing standing for intangible injuries under

the FDCPA. See Lupia v. Medicredit, Inc., 8 F.4th 1184 (10th Cir.

2021) (FDCPA violations caused harms akin to those caused

by invasion of privacy); Hunstein v. Preferred Collection and

Mgmt. Services, 17 F.4th 1016 (11th Cir. 2021) (explaining that

Spokeo and TransUnion do not require perfect congruence with

common-law harms, but only those similar in kind and not in

38 Nos. 19-2993 & 19-3109

degree), vacated and rehearing en banc granted, 17 F.4th 1103

(11th Cir. 2021); DiNaples v. MRS BPO, LLC, 934 F.3d 275, 279–

80 (3d Cir. 2019), following St. Pierre v. Retrieval-Masters

Creditors Bureau, Inc., 898 F.3d 351, 357–58 (3d Cir. 2018)

(FDCPA violations caused harms akin to invasion of privacy).

Some decisions of the Sixth Circuit also take a broader ap-

proach to standing for intangible injuries under the FDCPA.

See Donovan v. FirstCredit, Inc., 983 F.3d 246, 252 (6th Cir. 2020)

(FDCPA violations caused harm akin to invasion of privacy);

Huff v. TeleCheck Servs., Inc., 923 F.3d 458, 463 (6th Cir. 2019)

(implying that claim that plaintiff had wasted time or suffered

emotional distress would have supported concrete injury).

The Eighth Circuit found standing based on emotional

distress in a case quite similar to this one. In Demarais v.

Gurstel Chargo, P.A., 869 F.3d 685 (8th Cir. 2017), the defendant

law firm actually filed suit to try to collect a time-barred

“zombie” debt, hoping for a default judgment based on the

debtor’s non-appearance at trial. After the debtor appeared

twice in state court for trial, the law firm agreed to dismiss the

case with prejudice. Yet it later served discovery requests on

the debtor. The Eighth Circuit held that the debtor had alleged

an injury in fact. The Eighth Circuit drew on the common-law

torts of malicious prosecution, wrongful use of civil proceed-

ings, and abuse of process. 869 F.3d at 691–92. “The harm of

being subjected to baseless legal claims, creating the risk of

mental distress, provides the basis for both § 1692f(1) claims

and the common-law unjustifiable-litigation torts.” Id. at 692.

In language that could apply here, Judge Benton wrote for

the court:

Nos. 19-2993 & 19-3109 39

Congress recognized that abusive debt collec-

tion practices contribute to harms that can flow

from mental distress, like “marital instability”

and “the loss of jobs.” § 1692(a). “[B]ecause Con-

gress is well positioned to identify intangible

harms that meet minimum Article III require-

ments, its judgment is ... instructive and im-

portant.” Spokeo, [578 U.S. at 341]. Congress cre-

ated a statutory right to be free from attempts to

collect debts not owed, helping to guard against

identified harms. * * * The alleged violations of

Demarais’s § 1692f(1) rights were concrete inju-

ries in fact.

869 F.3d at 692. I agree.

Other Sixth and Eighth Circuit decisions have moved in

the direction of restricting standing in such cases. In Buchholz

v. Meyer Njus Tanick, PA, 946 F.3d 855 (6th Cir. 2020), the Sixth

Circuit affirmed dismissal for lack of standing, with a major-

ity opinion by Judge Nalbandian and a separate opinion from

Judge Murphy. The debtor alleged that dunning letters gave

him the false impression that an attorney had reviewed the

case and found that the debts were valid. The panel agreed

that the debtor’s anxiety was not fairly traceable to the collec-

tor’s alleged violations, but the judges took different ap-

proaches to whether the debtor’s anxiety amounted to an in-

jury in fact that could support standing.

Judge Nalbandian looked at the question in detail. His

opinion was skeptical but inconclusive on the question. Judge

Murphy disagreed with those doubts and would have held

that mental harm can support Article III standing. His opinion

drew on the difference between private and public rights. 946

40 Nos. 19-2993 & 19-3109

F.3d at 872, citing Spokeo, 578 U.S. at 343–48 (Thomas, J., con-

curring); see also William Baude, Standing in the Shadow of

Congress, 2016 Sup. Ct. Rev. 197, 227‒31 (2016) (endorsing re-

liance on that difference to decide standing on statutory

claims asserting intangible harms). Judge Murphy recognized

that the common law “typically” authorized no recovery for

only mental suffering, but he also recognized the many excep-

tions in the common law and emphasized, per Spokeo and

Lujan, that Congress may elevate to the status of legally cog-

nizable injuries concrete, de facto injuries that were previously

inadequate in law. Id. at 873–74. 10

The Eighth Circuit took a much narrower approach to

FDCPA standing for intangible injuries in Ojogwu v.

Rodenburg Law Firm, 26 F.4th 457, 463 (8th Cir. 2022), which

distinguished Demarais and cited Buchholz and our decision in

Pennell with approval for the proposition that stress and

confusion were not sufficient. I should also note that the

Eleventh Circuit’s careful opinion in Hunstein, 17 F.4th 1016,

has been vacated and is being considered en banc. 17 F.4th

1103 (11th Cir. 2021).

At this point, this circuit is at the far end of a circuit split

on standing in FDCPA cases based on emotional distress,

10 In a later opinion by Judge Nalbandian for a different panel, the

Sixth Circuit held that confusion and anxiety alone are not enough to sup-

port standing in an FDCPA case. Garland v. Orlans, PC, 999 F.3d 432, 438–

40 (6th Cir. 2021). The Garland opinion is considerably more careful than

our court’s opinions rejecting anxiety or emotional distress as sufficient. I

nevertheless believe, with respect, that Garland does not appreciate suffi-

ciently either the judgment of Congress or the common-law relatives iden-

tified in Judge Murphy’s opinion in Buchholz, the Eighth Circuit’s analysis

in Demarais, or the considerations I have laid out here.

Nos. 19-2993 & 19-3109 41

confusion, and anxiety. That split seems entrenched, at least

pending further guidance from the Supreme Court.

VI. Consumer Protection and Separation of Powers

I’ve explained in detail why our recent cases denying

standing for many intangible injuries are wrong as a matter of

standing doctrine and Supreme Court precedent. I conclude

by noting some of the larger consequences and implications

of those errors.

First, as Judge Ripple emphasized in his concurring opin-

ion in Markakos, our court’s series of decisions impose signifi-

cant and unjustified constitutional restrictions on Congress’s

legislative powers. 997 F.3d at 784. The effect is to hold that

the statute granting the civil remedy under the FDCPA, 15

U.S.C. § 1692k, is unconstitutional in many, and perhaps

most, applications within the scope of the statutory language.

Our opinions taking that step have not yet engaged seriously

with the analysis required under Spokeo and TransUnion.

Second, our errors have broad implications for many stat-

utes beyond the FDCPA. Congress has exercised its legislative

power to protect consumers in a host of statutes based on the

finding that the common law has not provided sufficient pro-

tection for their interests. Those statutes typically do not limit

their prohibitions to only unfair results for consumers, which

might already be actionable under prior law. Instead, con-

sumer protection statutes typically try to prevent the worst

harms by imposing a range of procedural, informational, and

substantive requirements to reduce the risk of harm. “Con-

gress had every right to decrease the confusion and concomi-

tant disincentive to use the credit markets caused by the

42 Nos. 19-2993 & 19-3109

profusion of sharp practices facilitated by modern technol-

ogy.” Markakos, 997 F.3d at 785 (Ripple, J., concurring in judg-

ment).

Many consumer protection statutes authorize enforce-

ment of those preventive measures by private rights of ac-

tions. The “due respect” that courts owe Congress in this field

needs to include more respect for those policy choices. This is

a basic issue of the separation of powers in our federal gov-

ernment. I do not suggest that Congress has an utterly free

rein; Spokeo and TransUnion rejected that position. But we

need to give much greater weight to the point in Lujan, Spokeo,

and TransUnion that Congress may, in the exercise of policy

judgment and legislative power, “elevate to the status of le-

gally cognizable injuries concrete, de facto injuries that were

previously inadequate in law.” TransUnion, 141 S. Ct. at 2204–

05, quoting Spokeo, 578 U.S. at 341, quoting in turn Lujan, 504

U.S. at 578.

Third, to the extent that the courts use standing doctrine

to prevent effective enforcement of the FDCPA or other

consumer protection statutes, Congress has other tools. One

obvious alternative is to rely more on enforcement through

federal agencies. Congress certainly has the power to impose

civil or even criminal penalties for violations of regulatory

statutes, and an agency enforcement action to impose such

penalties would not encounter any standing obstacle.

Thornley v. Clearview AI, Inc., 984 F.3d 1241, 1251 (7th Cir. 2021)

(Hamilton, J., concurring). That path would require a lot more

public money and personnel than Congress has chosen to use

so far. But these new restrictions on standing will naturally

push Congress in that direction. See generally TransUnion,

Nos. 19-2993 & 19-3109 43

141 S. Ct. at 2214–26 (dissenting opinions of Thomas and

Kagan, JJ.).

For these reasons, I respectfully dissent. Judge Leinen-

weber in the district court decided this challenging case fairly

and soundly. I would affirm the judgment of the district court

in all respects.