The plaintiff incurred $486.57 in utility bills that she did not pay. The McCreary Veselka Bragg & Allen law firm was hired to collect the debt, and sent her a form letter demanding payment. The debt, however, had been delinquent for four years and one day, and under Texas Law was therefore unenforceable. Because the letter failed to mention that fact, the plaintiff sued the law firm under the FDCPA. The District Court determined that the plaintiff has suffered an injury-in-fact, and certified a class under Rule 23(b)(3).  Although the Defendant law firm did not raise Article III standing in connection with its Rule 23(f) appeal, the U.S. Fifth Circuit took up the issue, sua sponte, and reversed.

With respect to the plaintiff’s request for statutory damages, the Court quotes the U.S. Supreme Court for the proposition that “an injury in law is not an injury in fact” while rejecting “the proposition that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.”

With respect to the argument that the letter subjected the plaintiff to a material risk of financial harm, the Court found that, while a plaintiff “can sue for damages if the risk materializes or causes a separate injury-in-fact, such as emotional distress… those are suits based on those injuries, not the risk itself.”

With respect to the argument that the letter caused the plaintiff to be confused, the Court drew a distinction between such a claim under the FDCPA and a traditional claim for negligent misrepresentation: “her confusion isn’t similar ‘in kind’ to the harm recognized by fraudulent misrepresentation, and that’s what matters for standing purposes. The nature of the harm recognized by fraudulent misrepresentation is a traditional, tangible harm: the ‘pecuniary loss’ the plaintiff sustains. And that means Perez’s confusion — which can only be an intangible harm, if it’s a harm at all — is necessarily different ‘in kind’ from her common-law analog.”

Fourth, the Court rejects standing based on the time plaintiff wasted by consulting with an attorney after receiving the letter. (The Court notes that, absent an allegation that Perez paid her attorney anything for the consultation, we must assume that her purported injury is solely lost time.)  However, the plaintiff did not identify a common law analog. “We are not aware of any tort that makes a person liable for wasting another’s time. Although tort plaintiffs can sometimes recover damages for the opportunity costs attributable to the tort, the nature of the underlying harm is different — e.g., physical damage in the case of a personal injury suit. Like at least one of our sister circuits, we are thus skeptical that a time-based injury alone could qualify as a concrete injury. Still, we do not conclusively decide whether such injuries are closely related to traditional harms, permitting future parties to develop the question further. We hold only that Perez did not carry her burden to show that a time-based injury could sustain her claims.”

Finally, the Court rejects standing based on an intrusion-upon-seclusion type theory. “Before and after TransUnion, many of our sister circuits also held that unwanted communications could cause concrete injuries similar to intrusion upon seclusion or other privacy torts. Since the harms elevated by Congress need only be similar ‘in kind, not degree,’ it seems to follow that a single unwanted communication could qualify as a concrete injury even though intrusion upon seclusion requires many. So how can we say that Perez’s receipt of the letter did not inflict a concrete injury? The answer is that Congress didn’t elevate the receipt of a single, unwanted message to the status of a legally cognizable injury in the FDCPA. Perez sued MVBA for violating the statute’s antifraud provision. 15 U.S.C. §1692e. Congress also expressed concern about invasions of individual privacy. But it addressed those problems through a different section of the FDCPA: the statute’s prohibition on harassment and abuse. 15 U.S.C. §1692d. Perez hasn’t sued MVBA based on that provision, so she can’t bootstrap the harms it recognizes as actionable to demonstrate standing to sue based on a different provision. Anyway, the FDCPA’s harassment provision doesn’t recognize that a single unwanted message qualifies as a concrete harm. Instead, its closest analog to an unwanted letter — unwanted telephone calls — must be made repeatedly or continuously. Its general prohibition on actions that harass, oppress, or abuse a debtor carries the same connotation. Accordingly, even if Congress could elevate a single unwanted message to the status of a concrete injury, it hasn’t done so here.”

 

Perez v. McCreary Veselka Bragg & Allen, 45 F.4th 816 (5^th Cir. 2022).