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.

____________________

On Petition for Rehearing and Rehearing En Banc

____________________

DECIDED JUNE 8, 2022

____________________

Before SYKES, Chief Judge, and EASTERBROOK, KANNE,

ROVNER, WOOD, HAMILTON, BRENNAN, SCUDDER, ST. EVE,

KIRSCH, and JACKSON-AKIWUMI, Circuit Judges.

2 Nos. 19-2993 & 19-3109

SYKES, Chief Judge. On consideration of the petition for

rehearing and for rehearing en banc filed on April 15, 2022, a

majority of judges in active service voted to deny the peti-

tion for rehearing en banc. Judges Rovner, Wood, Hamilton

and Jackson-Akiwumi voted to grant the petition for rehear-

ing en banc. Accordingly, the petition for rehearing and

rehearing en banc is DENIED.

Nos. 19-2993 & 19-3109 3

HAMILTON, Circuit Judge, joined by ROVNER, WOOD, and

JACKSON-AKIWUMI, Circuit Judges, dissenting. I respectfully

dissent from the denial of rehearing en banc. This case

presents an important question on the extent of Congress’s

power under the Constitution to regulate interstate

commerce—its power to authorize private civil remedies for

statutory violations that cause intangible but concrete

injuries, including emotional distress, fear, and confusion.

Defendant Midland Credit Management violated the

rights of plaintiff Pierre and a plaintiff class under the Fair

Debt Collection Practices Act in trying to collect so-called

“zombie” debts—debts on which Midland knew the statute

of limitations had expired. See Pantoja v. Portfolio Recovery

Associates, LLC, 852 F.3d 679 (7th Cir. 2017) (addressing merits

of such claims). Midland tried to revive a debt that had been

the subject of a suit against Pierre years earlier, ending in

dismissal. Pierre was not fooled into paying on the debt, but

she testified that Midland’s attempt to revive the debt had

caused her emotional distress and anxiety. Anyone who has

experienced financial insecurity can easily understand her

injuries. A jury awarded Pierre and the class statutory

damages of $350,000. The panel reversed, however, finding

that Pierre lacked standing even to bring this suit.

The constitutional issue here is whether a plaintiff who

proves a violation of the Act in attempting to collect a debt

from her can show standing based on injuries that are intan-

gible but quite real. Such injuries may include emotional dis-

tress, stress, anxiety, and the distress that can be caused by

unlawful attempts to collect consumer debts.

The panel majority said no. Its key holding: “Psychologi-

cal states induced by a debt collector’s letter … fall short.”

4 Nos. 19-2993 & 19-3109

Pierre v. Midland Credit Management, Inc., 29 F.4th 934, 939 (7th

Cir. 2022). That holding, which followed several recent deci-

sions of this court, has strayed far from the Supreme Court’s

more nuanced guidance on the power of Congress to author-

ize standing for statutory violations in Spokeo, Inc. v. Robins,

578 U.S. 330 (2016), and TransUnion LLC v. Ramirez, 141 S. Ct.

2190 (2021).

I. Spokeo and TransUnion

The Pierre majority opinion and the Seventh Circuit cases

it followed have erred by painting with too broad a brush.

They have failed to give the judgments of Congress the “due

respect” the Supreme Court called for in Spokeo and

TransUnion. They have overlooked close historical parallels—

from both common law and constitutional law—for remedies

for intangible harms caused by many violations of the FDCPA

and other consumer-protection statutes.

In Spokeo, the defendant was a consumer reporting agency

that generated profiles of individual consumers. Plaintiff Rob-

ins discovered that his Spokeo profile contained inaccurate in-

formation. He sued for an allegedly willful violation of the

Fair Credit Reporting Act’s requirement to use reasonable

procedures to assure maximum possible accuracy of such in-

formation. The Supreme Court held that the alleged statutory

violation regarding his information was not enough, by itself,

to establish the concrete and particularized injury in fact

needed for constitutional standing. 578 U.S. at 342–43. The

Court remanded 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

Nos. 19-2993 & 19-3109 5

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

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

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

Supreme Court told courts 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. 1

Spokeo left plenty of room for debate about standing under

consumer-protection statutes. The Court offered more guid-

ance in TransUnion LLC v. Ramirez, another FCRA case. A

1 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).

6 Nos. 19-2993 & 19-3109

credit reporting agency offered to tell creditors whether par-

ticular consumers might be on a government list of suspected

terrorists, drug-traffickers, and others with whom business

dealings are generally unlawful. Lots of law-abiding Ameri-

cans share first and last names with people on the govern-

ment’s list, and TransUnion identified such people as “poten-

tial 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 TransUn-

ion on behalf of a class for failing to use reasonable measures

to ensure that it distributed accurate information.

As a matter of statute, all class members in TransUnion had

viable FCRA claims. The issue for the Court was standing un-

der Article III. As in Spokeo, the key question was whether the

intangible harms claimed by the class members were suffi-

ciently concrete. The Court echoed Spokeo in saying that intan-

gible harms close to those traditionally 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 stat-

utory violations, though without giving Congress a blank

check to “transform something that is not remotely harmful

into something that is.” Id. at 2204–05 (citation omitted).

The TransUnion Court gave more specific meaning to this

abstract guidance in the different ways it actually treated the

two subclasses. For one subclass, TransUnion files listed them

as “potential matches” for the suspected terrorist list, but

TransUnion had never provided that information to any po-

tential creditors during the relevant period. Id. at 2209. The

Court held that those class members lacked standing. The

Nos. 19-2993 & 19-3109 7

undisclosed information had not caused them any harm at all.

It was as if, the Court said, a person had written a defamatory

letter and then left it in a desk drawer. Id. at 2210. The plain-

tiffs argued that the false information in those files put them

at serious risk of having the false information disseminated to

creditors in the future, but the Court rejected that theory for

standing, at least for a damages claim. Id.

The other subclass in TransUnion presented an easier ques-

tion. The misleading information about them was actually

sent to third parties. The Court agreed unanimously 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 attempt to dis-

tinguish its violations from defamation by arguing 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 recog-

nized as a basis for a lawsuit in American courts, we do not

require an exact duplicate.” Id. at 2209. The Court did not in-

sist, however, on proof that members of that subclass had lost

out on particular loans or purchases. Id.

II. Intangible but Concrete Injuries Under the FDCPA

Plaintiff Pierre’s claim should easily satisfy the Supreme

Court’s standing requirements. She proved all elements of an

FDCPA claim for a deceptive and unfair practice. She also sat-

isfied the constitutional requirements of Spokeo and TransUn-

ion by offering evidence of harms that, first, lie close to the

heart of the protection Congress reasonably offered consumer

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

harms long recognized under the common law and constitu-

tional law.

8 Nos. 19-2993 & 19-3109

A. The Judgment of Congress

In enacting the FDCPA, Congress wanted to provide a

remedy for consumers subjected to abusive practices. Those

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 employer, obtaining

information about a consumer through false

pretense, impersonating public officials and

attorneys, and simulating legal process.

S. Rep. No. 95-382 at 2, as reprinted in 1977 U.S.C.C.A.N. 1695,

1696. In the statutory findings, Congress said abusive

practices contributed to personal bankruptcies, marital

instability, job losses, and invasions of privacy. 15 U.S.C.

§ 1692(a). The statutory reference to marital instability and the

prohibitions on using threats, obscene language, and

harassing calls, see § 1692d, show that Congress 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

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

The emotional distress, confusion, and anxiety suffered by

Pierre in response to this zombie debt collection effort fit well

within the harms that would be expected from many of the

abusive practices. That’s true regardless of whether the debtor

actually made a payment or took some other tangible action

in response to them. Standing for Pierre thus fits well within

Nos. 19-2993 & 19-3109 9

Congress’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

(alteration in original), quoting Lujan, 504 U.S. at 578.

Judge Ripple made this point in his concurring opinion in

Markakos v. Medicredit, Inc., 997 F.3d 778 (7th Cir. 2021), high-

lighting Congress’s judgment about the need to protect con-

sumers from abusive debt collection practices and its choice

to rely on private enforcement:

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 re-

alities of everyday life, it also ignores the findings of

Congress and constitutes a direct affront to a con-

gressional prerogative at the core of the legislative

function. The court’s failure to recognize the in-

jury that Congress saw and addressed simply

testifies to our failure to appreciate how the peo-

ple we judicially govern live, or more precisely,

it testifies to our failure to defer to the congres-

sional 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 little attention and

erected an unnecessary constitutional barrier to

enforcement of the FDCPA.

Id. at 785 (emphasis added). I agree. And the Supreme Court’s

later decision in TransUnion further reinforced that need for

substantial deference to the judgment of Congress.

10 Nos. 19-2993 & 19-3109

B. Historical Guides from Common Law and Constitutional

Law

Defendant Midland’s violation of the FDCPA and the in-

tangible but real harms that Pierre suffered also bear close re-

lationships to those recognized in both the common law and

constitutional law. Those close relationships, as the Court

taught in Spokeo and TransUnion, offer strong support for rec-

ognizing Pierre’s standing here.

1. Common-Law Parallels

Start with the torts of intentional or reckless infliction of

emotional distress. “One who by extreme and outrageous

conduct intentionally or recklessly causes severe emotional

distress to another is subject to liability for such emotional

distress….” Restatement (Second) of Torts § 46(1) (Am. L.

Inst. 1965). Such tort cases often pose issues about what con-

duct is “extreme and outrageous” and when emotional dis-

tress is sufficiently severe. In enacting the FDCPA and its rem-

edy for statutory damages, though, Congress itself outlawed

the very conduct that harmed Pierre.

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

rienced were foreseeable, even intended, responses to defend-

ant’s attempt to collect the zombie debt. Congress told the fed-

eral courts to authorize damages for such harms. That choice

is well within Congress’s legislative power over interstate

commerce to go beyond the common law. 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 fore-

seeable mental distress familiar to common law).

The torts of defamation and invasion of privacy and rem-

edies for them also bear close relationships to the FDCPA and

Nos. 19-2993 & 19-3109 11

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

parallel to defamation to find standing for the plaintiffs whose

potential listings were sent to potential creditors. 141 S. Ct. at

2209; accord, Ewing v. MED-1 Solutions, LLC, 24 F.4th 1146,

1151–54 (7th Cir. 2022) (FDCPA plaintiffs whose debts were

reported without noting they were disputed had standing

based on publication of false or misleading information to

third parties).

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,

which rarely involve tangible injuries. See Restatement (Sec-

ond) of Torts § 652A et seq. (Am. L. Inst. 1977); Lupia v. Medi-

credit, 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 inva-

sion of privacy). In fact, the Restatement (Second) teaches that

a person who has established an invasion of privacy is entitled

to recover damages for, among other things, “his mental dis-

tress proved to have been suffered if it is of a kind that nor-

mally results from such an invasion.” § 652H(b).

Thus, rather than rejecting standing based on “psycholog-

ical states” induced by FDCPA violations, we should recog-

nize that, more generally, the common law has long author-

ized damages for emotional distress in a wide range of cases

lacking tangible injury. Section 905 of the Restatement (Sec-

ond) of Torts (Am. L. Inst. 1979) states that compensatory

12 Nos. 19-2993 & 19-3109

damages may be awarded for emotional distress. The com-

ments explain that the principal element of damages in ac-

tions for assault and defamation, among other torts, is “fre-

quently the disagreeable emotion experienced by the plain-

tiff,” § 905 cmt. c, and that the “mental distress known as hu-

miliation” may also support a damages award, cmt. d. Section

924 states: “One whose interests of personality have been tor-

tiously invaded is entitled to recover damages for past or pro-

spective (a) bodily harm and emotional distress….” Comment

a explains that this rule reaches assault (where no physical

contact is made) and insulting conduct amounting to a tort.

See also § 623 (emotional distress damages for defamation);

Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974) (“[T]he more

customary types of actual harm inflicted by defamatory false-

hood include impairment of reputation and standing in the

community, personal humiliation, and mental anguish and

suffering.”).

Consider also the difference between the torts of assault

and battery with the question of standing in mind. What harm

is suffered in an assault that stops short of battery? Not phys-

ical 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 suf-

ficiently concrete and particularized to support standing. The

same should be true here, where Congress made a policy

choice to offer vulnerable consumers this protection from

abusive and deceptive bullying by debt collectors.

Or consider claims for medical monitoring damages in

cases where a person has been exposed to a dangerous toxin

but has not yet shown symptoms of disease. The common law

in many states has evolved to authorize such damages to

Nos. 19-2993 & 19-3109 13

protect plaintiffs from future harm and to address the anxiety

and distress that such exposure can foreseeably cause. See,

e.g., Bower v. Westinghouse Electric Corp., 522 S.E.2d 424 (W. Va.

1999) (recognizing claim and collecting cases, including Bour-

geois v. A.P. Green Industries, Inc., 716 So. 2d 355 (La. 1998), and

In re Paoli R.R. Yard PCB Litig., 916 F.2d 829 (3d Cir. 1990)).

Further common-law examples abound. To be sure, there

has been plenty of room for debate about the requirements for

emotional distress damages under the common law, espe-

cially in cases alleging only negligence. See, e.g., Metro-North

Commuter R.R. Co. v. Buckley, 521 U.S. 424, 429–38 (1997) (ad-

dressing scope of statutory remedies under Federal Employ-

ers’ Liability Act for negligent infliction of emotional distress

and for medical monitoring based on negligent exposure to

asbestos). Those debates do not undermine Article III stand-

ing here.

The common law has been much more receptive to such

damages in cases of intentional or reckless conduct. Pierre’s

claim here is for intentional conduct that foreseeably inflicted

emotional distress and anxiety upon her. And in any event,

Spokeo and TransUnion make clear that standing under federal

statutes is not limited to the precise boundaries of the com-

mon law. The “close relationship” does not require “an exact

duplicate.” TransUnion, 141 S. Ct. at 2209. It would be extraor-

dinary to claim that the Constitution restricts Congress’s leg-

islative powers to require congruence with the common law.

And Spokeo and TransUnion both rejected that position.

Spokeo and TransUnion made clear that not every FDCPA

violation can support standing. The Act outlaws some “bare

procedural violations” that may not cause injury in fact. But a

remedy for defendant’s effort to pressure or trick Pierre into

14 Nos. 19-2993 & 19-3109

paying the zombie debt, inducing fear, anxiety, confusion,

and more general emotional distress, fits comfortably with the

common law of torts.

2. Constitutional Law Parallels

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

gible injuries under federal statutes are not limited to the com-

mon law. TransUnion, 141 S. Ct. at 2204. The Constitution pro-

tects people from many wrongs that may cause intangible in-

juries, including emotional distress and humiliation. A plain-

tiff may not recover damages for the “abstract” value of a con-

stitutional right, Memphis Comm. School Dist. v. Stachura, 477

U.S. 299, 308 (1986), but may recover for intangible emotional

distress and humiliation caused by constitutional violations.

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

flect this settled law. They tell jurors to consider 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

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 panel 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

Nos. 19-2993 & 19-3109 15

immunity 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).

Or consider how nominal damages affect standing in

constitutional cases. 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 our court’s approach to standing

in Pierre’s case with Uzuegbunam. If 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.

Uzuegbunam provides a good survey of the history and im-

portance of nominal damage awards in the common law and

constitutional law going back to the earliest years of the Re-

public 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 rule is that nominal damages are

available and even presumed where a plaintiff proves a vio-

lation of her legal rights. If that’s correct under both the com-

mon law and constitutional law, it’s also difficult to see why

16 Nos. 19-2993 & 19-3109

Congress cannot authorize a modest damages remedy under

the FDCPA where a plaintiff’s statutory rights are violated. 2

Under the teachings of Spokeo and TransUnion—giving

“due respect” for Congress’s judgment and recognizing that

Pierre’s statutory claim and intangible injuries fit closely in

legal history and tradition—Pierre should have standing.

Article III, Spokeo, and TransUnion do not prohibit 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.

2 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, at least as regards consumer-protection statutes.

Justice Thomas endorsed this analysis in his concurrence 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 com-

munity.” 141 S. Ct. at 2217. The line between private and public rights

could go a long way to reconcile Supreme Court precedents on nominal

damages with its recent opinions on standing for intangible injuries. The

distinction also offers a clear and manageable line between standing in

cases like this one, where Pierre asserts a private right under the statute,

and the “universal” standing feared by the Pierre majority and the cases it

followed. 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; John G. Roberts, Jr., Article III

Limits on Statutory Standing, 42 Duke L.J. 1219, 1226–30 (1993) (recognizing

that Congress may expand standing to full extent permitted by Article III

but may not dispense with requirement of injury in fact, and arguing fur-

ther that standing is “an apolitical limitation on judicial power,” applying

to both liberal and conservative causes).

Nos. 19-2993 & 19-3109 17

More fundamental, the idea that intangible harms like

emotional distress are not sufficient to support Article III

standing is simply wrong—especially where Congress has

authorized such claims under a federal statute. We should

have granted rehearing en banc because our circuit’s law on

this issue is out of step with the Supreme Court and places us

at the far, most restrictive, end of a range of approaches by

different circuits. See Pierre, 29 F.4th at 953–55 (Hamilton, J.,

dissenting). Our recent cases have restricted standing so

sharply that we may be close to a tipping point, leaving at

least the FDCPA largely neutered in the three states of the

Seventh Circuit. Since this court has chosen to deny rehearing

en banc and to continue on this course, however, the Supreme

Court may need to revisit the subject of Congress’s power to

authorize standing for such intangible but real and concrete

injuries under its statutes regulating commerce.

III. Case-Specific Arguments

The Answer to the petition for rehearing asserted several

case-specific arguments for denying the petition. These argu-

ments have little merit.

First, the Answer asserted that this case is really about fact-

specific application of settled legal principles. Not at all. The

Pierre opinion summarized recent cases and stated the rule

broadly: “psychological states,” including emotional distress,

cannot support standing under the FDCPA. 29 F.4th at 939.

That statement of the law is not “settled,” and it leaves no

room for factual nuance and distinctions that would let other

18 Nos. 19-2993 & 19-3109

plaintiffs pursue claims based on more severe emotional dis-

tress or worse invasions of privacy, for example. 3

Second, the Answer argued that plaintiff Pierre’s evidence

of emotional distress in her deposition and trial testimony

was not specific enough to support standing. On the contrary,

Pierre testified in detail about the dunning letter and her re-

action. 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 earlier suit on the

same debt had been dismissed years earlier.) Pierre described

her “emotional duress,” and she was anxious about the pro-

spect 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 law-

yer. She had read the statement that Midland would not sue

3 That is exactly how Pierre and its supporting cases are being argued

and applied in the district courts. District judges are reading Pierre and its

supporting cases that broadly. See, e.g., Tataru v. RGS Financial, Inc., 2021

WL 1614517 (N.D. Ill. 2021) (Tharp, J.); Marcano v. Nationwide Credit &

Collection, Inc., 2021 WL 4523218 (N.D. Ill. 2021) (Aspen, J.); Schumacher v.

Merchants’ Credit Guide Co., 2021 WL 4080765 (N.D. Ill. 2021) (Lee, J.);

Gordon v. Collection Professionals, Inc., 2021 WL 6108916 (C.D. Ill. 2021)

(Bruce, J.); Endres v. UHG I LLC, 2022 WL 462005 (W.D. Wis. 2022) (Conley,

J.); Choice v. Unifund CCR, LLC, 2021 WL 2399984 (N.D. Ill. 2021) (Coleman,

J.); Dixon v. Jefferson Capital Systems, LLC, 2021 WL 5908431 (S.D. Ind. 2021)

(Magnus-Stinson, J.); Patni v. Resurgent Capital Services, L.P., 2022 WL

1567069 (N.D. Ill. 2022) (Guzmán, J.) (citing Pierre); Masnak v. Optio

Solutions, LLC, 2022 WL 1102020 (E.D. Wis. 2022) (Stadtmueller, J.) (citing

Pierre). In several of these cases, and others, the broad arguments against

standing based on emotional distress or confusion or other psychological

states were made successfully by the same lawyers who told us in the

Answer that the Pierre holding on standing is fact-specific.

Nos. 19-2993 & 19-3109 19

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 deposi-

tion 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 successfully dis-

puted years earlier. Dkt. 262 at 52–73.

More fundamental to the issue of rehearing en banc,

though, the Pierre majority stated the rule in broad terms.

Emotional distress and other “psychological states” can never

support standing under the FDCPA. No additional specificity

from Pierre could overcome the panel’s categorical bar. And

again, that is how district courts are understanding and ap-

plying Pierre and our other recent decisions.

Finally, showing the greatest chutzpah, the Answer argues

that Pierre waived reliance on common law analogs, theories,

and cases raised for the first time in her petition for rehearing.

The Pierre majority, however, based its denial of standing en-

tirely on cases issued after oral argument in the case, includ-

ing the majority’s view of the 2021 TransUnion decision. Pierre

was entitled to respond to the new precedents and reasons

offered in the majority opinion. The assertions of waiver are

baseless.

Plaintiff Pierre suffered just the sorts of intangible but real

injuries—including emotional distress, anxiety, fear, and

confusion—that Congress foresaw and for which it enacted

statutory remedies. We should have granted rehearing en

banc and recognized her standing to pursue those remedies.