Paula Casillas v. Madison Avenue Associates, Inc.

The bottom line of our opinion can

be succinctly stated: no harm, no foul. Madison Avenue Associates,

Inc. made a mistake. The Fair Debt Collection Practices

Act requires debt collectors to notify consumers about the

2 No. 17‐3162

process that the statute provides for verifying a debt. Madison

sent Paula Casillas a debt‐collection letter that described the

process, but it neglected to specify that she had to communicate

in writing to trigger the statutory protections. Casillas noticed

the omission and filed a class action against Madison.

The only harm that Casillas claimed to have suffered,

however, was the receipt of an incomplete letter—and that is

insufficient to establish federal jurisdiction. As the Supreme

Court emphasized in Spokeo, Inc. v. Robins, Casillas cannot

claim “a bare procedural violation, divorced from any concrete

harm, and satisfy the injury‐in‐fact requirement of Article

III.” 136 S. Ct. 1540, 1549 (2016). Article III grants federal

courts the power to redress harms that defendants cause

plaintiffs, not a freewheeling power to hold defendants accountable

for legal infractions. Because Madison’s violation of

the statute did not harm Casillas, there is no injury for a federal

court to redress.

I.

Paula Casillas allegedly owed a debt to Harvester Financial

Credit Union. Presumably acting as an agent of the credit

union, Madison Avenue Associates, Inc. sent Casillas a letter

demanding payment. The Fair Debt Collection Practices Act

requires a debt collector to give a written notice to a consumer

within five days of its initial communication. 15 U.S.C.

§ 1692g(a). That notice must include, among other things, a

description of two mechanisms that the debtor can use to verify

her debt. First, a consumer can notify the debt collector “in

writing” that she disputes all or part of the debt, which obligates

the debt collector to obtain verification of the debt and

mail a copy to the debtor. Id. § 1692g(a)(4). A failure to dispute

No. 17‐3162 3

the debt within 30 days means that the debt collector will assume

that the debt is valid. Id. § 1692g(a)(3). Second, a consumer

can make a “written request” that the debt collector

provide her with the name and address of the original creditor,

which the debt collector must do if a different creditor

currently holds the debt. Id. § 1692g(a)(5). Madison’s notice

conveyed all of that information, except that it neglected to

specify that Casillas’s notification or request under those provisions

must be in writing.

Casillas filed a class action against Madison because of

that omission. She did not allege that she tried—or even

planned to try—to dispute the debt or verify that Harvester

Financial Credit Union was actually her creditor. But the Act

renders a debt collector liable for “fail[ing] to comply with

any provision of [the Act],” id. § 1692k(a), and by neglecting

to notify Casillas of the writing requirement, Madison failed

to comply with a provision of the Act. That, Casillas alleged,

“constitute[d] a material/concrete breach of her rights under

the [Act].” She sought to recover a $1000 statutory penalty for

herself and a $5000 statutory penalty for the unnamed class

members, along with attorneys’ fees and costs. Id.

§ 1692k(a)(2)(A)–(B). The parties eventually entered a joint

motion for class certification and preliminary approval of a

class settlement.1

1 A debt collector’s liability to unnamed class members is “such

amount as the court may allow … not to exceed the lesser of $500,000 or 1

per centum of the net worth of the debt collector.” § 1692k(a)(2)(B). The

$5000 Casillas sought for the unnamed members of the class represents

1% of Madison’s net worth. The attorneys’ fees were the big‐ticket item

and the reason why Madison quickly agreed to settle the case.

4 No. 17‐3162

While that motion was pending, we decided Groshek v.

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

the Supreme Court’s decision in Spokeo, we held that

a plaintiff cannot satisfy the injury‐in‐fact element of standing

simply by alleging that the defendant violated a disclosure

provision of a consumer‐protection statute. Id. at 887. The district

court held that Groshek required it to dismiss Casillas’s

complaint. Casillas had not alleged that Madison’s omission

affected her in any way. And absent an allegation that Madison’s

violation had caused her harm or put her at an appreciable

risk of harm, the district court said, Casillas lacked

standing to sue.

II.

The elements of standing are well settled: the plaintiff

must allege an injury in fact that is traceable to the defendant’s

conduct and redressable by a favorable judicial decision.

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

requirements are rooted in Article III, which limits a federal

court’s authority to the resolution of “Cases” or “Controversies.”

U.S. CONST. art. III, § 2. If the plaintiff does not claim to

have suffered an injury that the defendant caused and the

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

court to resolve.

Casillas’s appeal involves the injury‐in‐fact requirement,

which the Supreme Court has described as the “[f]irst and

foremost” element of standing. Steel Co. v. Citizens for a Better

Environment, 523 U.S. 83, 103 (1998). An “injury in fact” is “an

invasion of a legally protected interest which is (a) concrete

and particularized and (b) actual or imminent, not conjectural

or hypothetical.” Lujan, 504 U.S. at 560 (citations and quotation

marks omitted). An alleged harm need not be tangible to

No. 17‐3162 5

be “concrete,” but it must be “‘real,’ and not ‘abstract.’”

Spokeo, 136 S. Ct. at 1548. The question here is whether Casillas

has alleged that she suffered—or faced a real risk of suffering—

a concrete harm.2

A.

We begin by emphasizing a basic point: the fact that Congress

has authorized a plaintiff to sue a debt collector who

“fails to comply with any requirement [of the Fair Debt Collection

Practices Act],” 15 U.S.C. § 1692k(a), does not mean

that Casillas has standing. See Spokeo, 136 S. Ct. at 1549 (“Congress’

role in identifying and elevating intangible harms does

not mean that a plaintiff automatically satisfies the injury‐infact

requirement whenever a statute grants a person a statutory

right and purports to authorize that person to sue to vindicate

that right.”). Congress has the power to define intangible

harms as legal injuries for which a plaintiff can seek relief,

see Lujan, 504 U.S. at 578, and it has sought to exercise that

power by enabling debtors to hold debt collectors liable for

statutory violations. But Congress must operate within the

confines of Article III, which “requires a concrete injury even

in the context of a statutory violation.” Spokeo, 136 S. Ct. at

1549. Thus, Casillas cannot demonstrate standing simply by

pointing to Madison’s procedural violation. She must show

that the violation harmed or “presented an ‘appreciable risk

2 Madison has disclaimed any position on this issue. Casillas has interpreted

the settlement agreement to require Madison to support her

standing argument. To avoid being accused of breaching the agreement,

Madison has declined to argue that Casillas lacks standing; its brief offers

a neutral assessment of the case law.

6 No. 17‐3162

of harm’ to the underlying concrete interest that Congress

sought to protect.” Groshek, 865 F.3d at 887 (citation omitted).

The Fair Debt Collection Practices Act seeks to protect

debtors from “the use of abusive, deceptive, and unfair debt

collection practices by many debt collectors.” 15 U.S.C.

§ 1692(a). Section 1692g serves this end by giving debtors a

way to dispute or verify their supposed debts. And by obligating

creditors to tell debtors how to do that, subsections

(a)(4) and (5) reduce the risk that debtors will inadvertently

lose the protections given to those who observe the statutory

requirements.

Casillas did not allege that Madison’s actions harmed or

posed any real risk of harm to her interests under the Act. She

did not allege that she tried to dispute or verify her debt orally

and therefore lost or risked losing the statutory protections.

Indeed, she did not allege that she ever even considered contacting

Madison or that she had any doubt about whether she

owed Harvester Financial Credit Union the stated amount of

money. She complained only that her notice was missing

some information that she did not suggest that she would

ever have used. Any risk of harm was entirely counterfactual:

she was not at any risk of losing her statutory rights because

there was no prospect that she would have tried to exercise

them. Because Madison’s mistake didn’t put Casillas in

harm’s way, it was nothing more than a “bare procedural violation.”

Spokeo, 136 S. Ct. at 1549. Casillas had no more use

for the notice than she would have had for directions accompanying

a product that she had no plans to assemble.

Casillas insists that she suffered the same kind of harm

that we held sufficient to confer standing in Robertson v. Allied

No. 17‐3162 7

Solutions, 902 F.3d 690 (7th Cir. 2018). There, a prospective employer

violated the Fair Credit Reporting Act’s requirement

that it provide the plaintiff with a copy of her background

check before it revoked her offer of employment. Id. at 693.

We held that the plaintiff satisfied the injury‐in‐fact requirement

even though she had not alleged that the report was inaccurate

or that she could have persuaded the defendant to

hire her if she had received it. Id. at 697. Casillas says that she

suffered an injury in fact even though she did not allege that

she would have disputed or verified the debt if the notice had

been complete.

But the plaintiff in Robertson alleged that the defendant

had not only violated the statute but also harmed the concrete

interest that the statute protected. The Fair Credit Reporting

Act required the prospective employer to give the applicant a

copy of the background report before it took an adverse action

so that she would have an opportunity to review and respond

to the information in the report. If there were inaccuracies, she

could identify them; if the negative information was accurate,

she could try to put the bad facts in a better light. Id. at 696–

97. The plaintiff alleged that the employer took that opportunity

from her: “[b]y withholding her background report …

[the employer] limited her ability to review the basis of the

adverse employment decision and impeded her opportunity

to respond.” Id. at 695.

In holding that this allegation satisfied the injury‐in‐fact

requirement, we emphasized that “Article III’s strictures are

met not only when a plaintiff complains of being deprived of

some benefit, but also when a plaintiff complains that she was

deprived of a chance to obtain a benefit.” Id. at 697. The plaintiff

in Robertson made just that complaint. She did not have to

8 No. 17‐3162

allege that she could have retained the job offer if she had access

to the background report. Her lost opportunity to try to

change the defendant’s opinion of her was a sufficiently concrete

injury to confer standing.

Casillas did not allege any comparable lost opportunity.

Nor could she. Unlike the Fair Credit Reporting Act, the provisions

of the Fair Debt Collection Practices Act that Madison

violated do not protect a consumer’s interest in having an opportunity

to review and respond to substantive information.

See id. (“An informational injury can be concrete when the

plaintiff is entitled to receive and review substantive information.”

(emphasis added)). They instead protect a consumer’s

interest in knowing her statutory rights. And in Robertson,

we expressly distinguished a defendant’s obligation to

provide substantive information from its obligation to give

notice of statutory rights. There, the prospective employer

had not only failed to provide the plaintiff with the background

report; it had also failed to provide her with a written

summary of her rights under the Fair Credit Reporting Act.

See id. at 693. We didn’t need to resolve whether the plaintiff

would have had standing if the latter were her only complaint—

so we didn’t. But we observed that “[t]he problem

with that argument is that it describes only a procedural injury.

[The plaintiff] did not indicate how, if the procedures

had properly been followed, she might have persuaded [the

employer] to hire her. With or without written notice of her

rights, [she] would not have become an [] employee.” Id. at

694–95. So too here: receiving a complete notice would not

have changed anything for Casillas.

Casillas’s case is not like Robertson. Instead, as the district

court recognized, it is like those in which we have held that

No. 17‐3162 9

procedural injuries under consumer‐protection statutes are

insufficiently concrete to confer standing. In Groshek, for example,

the plaintiff sued a prospective employer for violating

the Fair Credit Reporting Act. 865 F.3d at 886. The defendant

had complied with the Act by disclosing that it would obtain

a credit report on the applicant. But it violated the Act’s

“stand‐alone” requirement: the statute mandated that the disclosure

appear on its own page, and the defendant had included

other information along with it. Id. at 885–86. We said

that the plaintiff had alleged nothing more than a bare procedural

violation. Id. at 887. He hadn’t claimed that the improper

format had caused him to misunderstand the disclosure,

he hadn’t asserted that he would have withheld consent

if the information had been presented correctly, and he hadn’t

said that he was unaware that the prospective employer

would obtain a credit report on him. Id. Instead, he had “alleged

a statutory violation completely removed from any concrete

harm or appreciable risk of harm.” Id. Under Spokeo, we

explained, that was not enough to satisfy Article III. Id.; see also

Meyers v. Nicolet Restaurant of De Pere, LLC, 843 F.3d 724, 727

(7th Cir. 2016) (holding that the defendant’s failure to truncate

the expiration date from the plaintiff’s credit card receipt did

not put the plaintiff at any material risk of credit card fraud

because he was the only one who ever saw the receipt). Similarly

here, Casillas did not allege that she even read the disclosure,

much less that she relied on it to her detriment.

Casillas’s best case is from the Sixth Circuit, which sees

things differently than we do. In Macy v. GC Services Limited

Partnership, the defendant violated the very same requirements

that Madison did here: it failed to notify the plaintiffs

that they had to dispute their debts in writing to trigger the

protections of the Fair Debt Collection Practices Act. 897 F.3d

10 No. 17‐3162

747, 751 (6th Cir. 2018). Like Casillas, the plaintiffs did not allege

that they tried or had any intention of trying to contact

the debt collector to verify the debt. Id. at 758. Instead, they

claimed that not knowing about the writing requirement

“could lead the least‐sophisticated consumer to waive or otherwise

not properly vindicate her rights under the [Act].” Id.

The Sixth Circuit held that the plaintiffs had alleged a concrete

injury because “[w]ithout the information about the in‐writing

requirement, Plaintiffs were placed at a materially greater

risk of falling victim to ‘abusive debt collection practices.’” Id.

(quoting 15 U.S.C. § 1692(e)).

We disagree. It is certainly true that the omission put those

consumers who sought to dispute the debt at risk of waiving

statutory rights. But it created no risk for the plaintiffs in that

case, who did not try (and, for that matter, expressed no plans

to try) to dispute the debt. It is not enough that the omission

risked harming someone—it must have risked harm to the

plaintiffs.3 As the Supreme Court has explained, “the ‘injury in

fact’ test requires more than an injury to a cognizable interest.

It requires that the party seeking review be himself among the

injured.” Sierra Club v. Morton, 405 U.S. 727, 734–35 (1972). Because

Macy didn’t require the plaintiffs to allege a risk of harm

3 Casillas insists that the “unsophisticated consumer” standard, which

we have applied elsewhere in our precedent, means that standing exists

whenever a debt‐collection letter might have misled a naive consumer.

But the “unsophisticated consumer” standard is a rule for interpreting a

debt‐collection letter to determine whether it is misleading. See Williams v.

OSI Educ. Servs., Inc., 505 F.3d 675, 677–78 (7th Cir. 2007). It is not a rule

permitting those who have not been injured to vindicate the rights of those

who have.

No. 17‐3162 11

to themselves, it is inconsistent with Groshek and Meyers, not

to mention Spokeo itself. We decline to follow it.4

Casillas also seeks help from the Second Circuit, but the

case that she cites is distinguishable. In Strubel v. Comenity

Bank, the plaintiff sued a bank because it provided, and she

signed, a credit card agreement that allegedly omitted several

disclosures required by the Truth in Lending Act. 842 F.3d

181, 185 (2d Cir. 2016). Casillas highlights one omission in

particular: the bank’s failure to notify the plaintiff that “a consumer

dissatisfied with a credit card purchase must contact

the creditor in writing or electronically.” Id. at 190. The Second

Circuit said that a consumer has a concrete interest in

“avoid[ing] the uninformed use of credit,” id. (quoting 15

U.S.C. § 1601(a)); thus, failing to notify the consumer of her

obligations before she began exercising that credit created a

serious risk that she would “unwittingly [] lose the very credit

rights the law affords” her, id. The court held that the plaintiff

had sufficiently alleged an injury in fact.

There is some facial similarity between the omission in

Strubel and the one in Casillas’s case: both disclosures neglected

to tell a consumer that she must exercise her rights in

writing. But as the Second Circuit explained, the disclosure in

Strubel was supposed to come at the beginning of an openended

credit relationship between the plaintiff and the bank;

it explained how she could protect her rights with respect to

4 Because this opinion creates a circuit split, it has been circulated

among all judges of this court in regular active service. See 7th Cir. R. 40(e).

A majority did not favor a rehearing en banc. Chief Judge Wood, joined

by Circuit Judges Rovner and Hamilton, filed a dissent from the denial of

rehearing en banc, which is attached to this opinion.

12 No. 17‐3162

the transactions that she would undertake during that relationship.

Id. at 190–91. The faulty disclosure thus put the

plaintiff at some risk, because any subsequent transaction

might be unsatisfactory, thereby triggering her obligation to

object in writing.

We don’t offer an opinion on the Second Circuit’s conclusion

that the risk of harm to that plaintiff was substantial

enough to be concrete. For present purposes, it is sufficient to

note that Strubel is materially different from this case. When

the plaintiff in Strubel received the incomplete notice, she did

not yet know whether she would ever object to a credit card

purchase. When Casillas received the incomplete notice, she

already knew that she would not dispute her debt. In other

words, unlike Casillas, the plaintiff in Strubel alleged at least

a possibility that the omission would hurt her.5

B.

Casillas has a back‐up argument. She claims that it doesn’t

matter whether she alleged a material risk of harm to her

debt‐verification rights because she suffered another kind of

harm that was sufficiently concrete: an “informational in‐

5 We also note that the Second Circuit did not hold that every omission

caused the plaintiff concrete harm. The bank had also failed to tell her that

she was obligated to provide a creditor with timely notice to stop automatic

payment of a disputed charge. Id. at 191. But the plaintiff’s card did

not offer automatic payment, so the Second Circuit held that the omission

of the disclosure had posed no risk of harm to her. Id. at 191–92. In this

respect, the plaintiff in Strubel was similarly situated to Casillas: the information

that she did not receive was information that she would not have

used. The Second Circuit’s resolution of this claim supports our conclusion

that Casillas lacks standing.

No. 17‐3162 13

jury.” According to Casillas, both the Supreme Court’s precedent

and ours hold that the deprivation of information is itself

a concrete harm. Thus, she says, she did not need to allege

anything more—for example, that she lost or was at risk of

losing her statutory rights because she communicated orally

with Madison. As she sees it, she has standing simply because

Madison failed to provide her all of the information required

by § 1692g(a)(4) and (5); being deprived of information was

itself the injury. But Casillas misunderstands the relevant

precedent.

The seminal cases addressing “informational injury” are

Federal Election Commission v. Akins, 524 U.S. 11 (1998), and

Public Citizen v. U.S. Department of Justice, 491 U.S. 440 (1989).

In Akins, a group of voters sued to compel a political organization

to disclose information that the voters believed the

Federal Election Campaign Act required the organization to

provide. 524 U.S. at 15–16. The Court held that those voters

had alleged an injury in fact sufficient to confer standing—

namely, “their inability to obtain information … that, on [the

voters’] view of the law, the statute requires that [the political

organization] make public.” Id. at 21. In Public Citizen, the

plaintiff sought the disclosure of consultations between the

president and the American Bar Association regarding potential

judicial nominees. When the Department of Justice refused

to provide that information, the plaintiff sued it for violating

the Federal Advisory Committee Act. 491 U.S. at 443,

447. The Court held that those seeking disclosure under that

14 No. 17‐3162

law, like those seeking disclosure under the Freedom of Information

Act, need to show nothing more “than that they

sought and were denied specific agency records.” Id. at 449.6

Casillas treats Akins and Public Citizen as if they settle the

matter of her own standing. But those cases hold that the denial

of information subject to public disclosure is one of the intangible

harms that Congress has the power to make legally cognizable.

See Spokeo, 136 S. Ct. at 1549 (discussing “Congress’

role in identifying and elevating intangible harms”). Publicdisclosure

laws—sometimes called “sunshine laws”—protect

the public’s interest in evaluating matters of concern to the

political community. And denying a request for information

under a sunshine law necessarily implicates that interest. In

Akins, the denial “directly related to voting, the most basic of

political rights.” 524 U.S. at 24–25. In Public Citizen, the denial

hampered the plaintiffs’ ability to “participate more effectively

in the judicial selection process.” 491 U.S. at 449.

Casillas, of course, did not allege that she sought and was

denied information pursuant to a sunshine law. Indeed, she

did not seek information at all. See id. (explaining that a plaintiff

who “is not seeking to compel [the defendant] to provide

him with information” has not suffered the kind of concrete

harm that Akins and Public Citizen recognize). The Fair Debt

6 Since Spokeo was decided, we too have recognized this kind of public‐

disclosure “informational injury” as sufficiently concrete to confer

standing, albeit in the context of a common‐law rather than a statutory

cause of action. In Carlson v. United States, the plaintiff, a historian, asserted

a common‐law right of access to grand‐jury records from a World War II–

era espionage investigation. 837 F.3d 753, 755–56 (7th Cir. 2016). Citing

Akins and Public Citizen, we held that “Carlson’s injury‐in‐fact is the denial

of access to government documents that he has a right to seek.” Id. at 758.

No. 17‐3162 15

Collection Practices Act protects an entirely different interest,

and as we have already said, Casillas alleged no material risk

of harm to that interest. Moreover, while the plaintiffs in the

public‐disclosure cases alleged that the respective defendants

“impaired [their] ability to use [the information] for a substantive

purpose that the statute envisioned,” Robertson, 902

F.3d at 694, Casillas did not allege that she would have used

the information at all.

Casillas’s last line of defense is Havens Realty Corp. v. Coleman,

455 U.S. 363 (1982), which she claims stands for the proposition

that a plaintiff suffers a concrete “informational injury”

any time a defendant violates a statutory disclosure requirement.

There, the plaintiff, who was black, sued the defendant

after it falsely told her that an apartment complex had

no vacancies. The plaintiff had no intention of actually renting

an apartment; she had requested the information because she

suspected that the defendant was engaged in unlawful racial

steering practices. Id. at 368–69. The Court held that she had

alleged a concrete injury under the Fair Housing Act, which

“conferred on all ‘persons’ a legal right to truthful information.”

Id. at 373. Casillas says that the Fair Debt Collection

Practices Act has likewise conferred on all debtors a right to

complete information about their statutory rights. And as in

Havens Realty, Casillas says, it is enough for her to claim that

she was deprived of the information to which she was legally

entitled—even if she wouldn’t use it.

But the bare harm of receiving inaccurate or incomplete

information is not the harm that the plaintiff in Havens Realty

alleged. She claimed the harm of being lied to because of her

race. That was an invasion of the very interest that the Fair

Housing Act protects: freedom from racial discrimination in

16 No. 17‐3162

the pursuit of housing. Id. at 373. Indeed, the statute itself does

not prohibit all misrepresentations about housing availability,

but only those made “because of race” or some other protected

characteristic. 42 U.S.C. § 3604(d). In holding that the

plaintiff could proceed without showing any additional

harm, the Court recognized this kind of racial discrimination

as an intangible injury that Congress has the authority to

identify as legally cognizable. That is obviously neither the

harm Casillas claimed nor the one that the Fair Debt Collection

Practices Act protects against.7

C.

In sum, Casillas alleged nothing more than a bare procedural

violation of the Fair Debt Collection Practices Act. That

is insufficient for purposes of Article III. See Spokeo, 136 S. Ct.

7 In Church v. Accretive Health, Inc., the Eleventh Circuit held that the

Fair Debt Collection Practices Act created a “right to information” that is

analogous to the right protected by Havens Realty. 654 F. App’x 990, 994

(11th Cir. 2016) (“Just as the tester‐plaintiff had alleged injury to her statutorily‐

created right to truthful housing information, so too has Church

alleged injury to her statutorily‐created right to information pursuant to

the [Fair Debt Collection Practices Act].”). It thus held that a bare procedural

violation of the Act’s disclosure requirements is a “concrete injury”

sufficient to establish standing. Id. Church does not give us pause. For one

thing, it is an unpublished opinion that does not establish law even within

the Eleventh Circuit. For another, the debt collector in Church failed to

make any of the disclosures required by § 1692g(a), and we address only

whether Congress has created a bare right to information in § 1692g(a)(4)

and (5). But to the extent that Church generally recognizes a bare procedural

violation of any disclosure requirement as a concrete injury, it is at

odds with Groshek and Robertson. Moreover, for the reasons we discuss

above, it misreads Havens Realty. The Sixth Circuit has expressly rejected

Church, see Lyshe v. Levy, 854 F.3d 855, 859–861 (6th Cir. 2017), and to the

extent that it is inconsistent with our opinion in this case, we do as well.

No. 17‐3162 17

at 1549. And while she asks that she be given the opportunity

to file an amended complaint on remand if we find jurisdiction

lacking, she has not indicated—either here or in the district

court—what facts she would allege to cure the jurisdictional

defect. The district court denied her request for leave to

file an amended complaint, and it was right to do so. See Gonzalez‐

Koeneke v. West, 791 F.3d 801, 807 (7th Cir. 2015) (“[A]

district court does not abuse its discretion by denying a motion

for leave to amend when the plaintiff fails to establish

that the proposed amendment would cure the deficiencies

identified in the earlier complaint.”).

III.

Finally, we note that Casillas has forfeited her separate

claim that the incomplete disclosure violated the Act’s prohibition

on “unfair or unconscionable means to collect or attempt

to collect any debt.” 15 U.S.C. § 1692f. Although her

complaint presented that alleged violation as a separate

claim, it was substantively identical to her § 1692g claim. On

appeal, she has not challenged the district court’s dismissal of

her § 1692f claim, so she has forfeited any challenge to it. See

Sansone v. Brennan, 917 F.3d 975, 983 (7th Cir. 2019).

* * *

Casillas caught the defendant in a mistake, but it was not

one that hurt her. The district court’s judgment is AFFIRMED.

18 No. 17‐3162

WOOD, Chief Judge, with whom ROVNER and HAMILTON,

Circuit Judges, join, dissenting from the denial of en banc consideration.

From 10,000 feet above the ground, the decision in

this case that plaintiff Paula Casillas lacks standing to pursue

her claim under the Fair Debt Collection Practices Act (“the

Act”) against the debt‐collection firm of Madison Avenue Associates

seems sensible enough. Article III demands injury‐infact,

a causal link, and redressability, Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560–61 (1992). As our panel sees this

case, Casillas founders on the first criterion: actual injury. But

the plot thickens when we look more particularly at the violation

she asserted: Madison’s failure to warn her, as required

by 15 U.S.C. § 1692g, that a dispute over the debt or a request

for information about the original creditor is ineffective unless

it is made in writing. The panel regards that omission as a

“bare procedural injury” and thus not one that can support

standing under Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549

(2016). In so concluding, this court has created a conflict with

the Sixth Circuit, which held otherwise in Macy v. GC Servs.

Ltd. P’ship, 897 F.3d 747 (6th Cir. 2018), on materially indistinguishable

facts.

Recognizing that it was opening up this rift, the panel circulated

its opinion to all judges of the Seventh Circuit in regular

active service pursuant to Local Rule 40(e); the question

was whether this is an important enough issue to warrant plenary

consideration by the en banc court. A majority of my colleagues

have answered that question in the negative, thereby

signaling their approval of the panel’s decision. I respectfully

disagree with that assessment. The panel’s opinion will make

it much more difficult for consumers to enforce the protections

against abusive debt collection practices that Congress

conferred in the Act. That alone is troublesome. But what

No. 17‐3162 19

troubles me even more is the light this case shines on the need

for a clear test in this circuit to distinguish between statutory

protections that create, on the one hand, a “bare procedural

injury” that does not support standing, and, on the other

hand, statutory protections for the type of concrete, particularized,

and actual or imminent injury that meet Article III

standards. In my view, the rejection of standing in the case

before us is not so self‐evident that we should resolve it using

the truncated Rule 40(e) process. We should instead have a

full adversarial presentation before the en banc court.

My concerns are both procedural and substantive. I begin

with procedure. In demanding proof of injury, we need to

guard against pushing a merits judgment into the Article III

injury‐in‐fact inquiry; we also need to ensure that we are not,

de facto, demanding fact pleading. The Supreme Court underscored

the standing/merits distinction in Lexmark Int’l, Inc. v.

Static Control Components, Inc., 572 U.S. 118 (2014), in which it

took care to distinguish between an adequate allegation of injury‐

in‐fact for standing purposes and the question whether

that asserted injury fell within the scope of the statute on

which the plaintiff was relying (there, the Lanham Act). Id. at

125–28. It is possible to point to a real injury (and thus pass

the Article III hurdle) but still lose on the merits for failing to

state a claim on which relief can be granted. See FED. R. CIV.

P. 12(b)(6).

We additionally need to be sure that we are not returning

to a fact pleading regime, as it is not required or even acceptable

under Federal Rule of Civil Procedure 8(a)(2) and it is not

specifically required under this Act. We repeatedly have

stressed that the Federal Rules of Civil Procedure use a noticepleading

standard, not a fact‐pleading standard. A complaint

20 No. 17‐3162

need not include allegations about every element of a claim,

as long as it meets the plausibility standard established in Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v.

Iqbal, 556 U.S. 662 (2009). Finally, nothing in Twombly or Iqbal

changed the rule requiring both facts and reasonable inferences

from those facts to be taken in the pleader’s favor at the

earliest stages of the litigation. Thus, for example, a person

may plead that she was injured by a statutory violation. If she

fails to prove that injury in the end, the court should conclude

that she loses on the merits, not that she never had Article III

standing to begin with. The panel opinion takes a step toward

both unnecessary heightened requirements.

From a substantive point of view, as the panel said, plaintiff

Casillas “must show that the violation [of the Act] harmed

or presented an appreciable risk of harm to the underlying

concrete interest that Congress sought to protect.” Ante at 5

(cleaned up), citing Groshek v. Time Warner Cable, Inc., 865 F.3d

884, 887 (7th Cir. 2017). I agree with that statement. Where I

believe the panel is on shakier ground—shaky enough to warrant

full en banc attention—is in its application of that standard.

It is helpful in this connection to look at the statutory provision

that lies at the center of this dispute:

(a) Notice of debt; contents

Within five days after the initial communication

with a consumer in connection with the collection of

any debt, a debt collector shall, unless the following information

is contained in the initial communication or

the consumer has paid the debt, send the consumer a

written notice containing—

No. 17‐3162 21

(1) the amount of the debt;

(2) the name of the creditor to whom the debt is

owed;

(3) a statement that unless the consumer, within

thirty days after receipt of the notice, disputes the validity

of the debt, or any portion thereof, the debt will

be assumed to be valid by the debt collector;

(4) a statement that if the consumer notifies the debt

collector in writing within the thirty‐day period that the

debt, or any portion thereof, is disputed, the debt collector

will obtain verification of the debt or a copy of a

judgment against the consumer and a copy of such verification

or judgment will be mailed to the consumer

by the debt collector; and

(5) a statement that, upon the consumer’s written request

within the thirty‐day period, the debt collector

will provide the consumer with the name and address

of the original creditor, if different from the current

creditor.

15 U.S.C. § 1692g(a) (emphasis added). In particular, we are

concerned with the requirements in section 1692g(a)(4) and

(5) that the consumer must communicate with the debt collector

in writing. Failure to do that is anything but a picky procedural

gaffe. Section 1692g(b) specifies that if the consumer

makes such a written request, “the debt collector shall cease

collection of the debt, or any disputed portion thereof,” until

the debt collector takes the requested steps. The right to be left

alone is a crucial part of the congressionally mandated

scheme to eliminate abusive and unfair tactics from the debtcollection

business.

22 No. 17‐3162

It is also worth noting that people might not appreciate the

need for a written record of their dealings with the debt collector

and thus without a reminder that they must reduce

their concerns to writing, they are likely to forfeit the important

substantive rights the Act provides for them. When

they receive a letter, they are often encouraged to call a 1‐800

telephone number. But someone who responds to a debt‐collection

letter in that way will be put into a “Gotcha!” situation.

No notification in writing equals greatly diminished protection

under the Act.

It is a fair inference from Casillas’s complaint that Madison’s

omissions at a minimum put her in imminent risk of losing

the many protections in the Act that are designed to regulate

the debt‐collection process as it goes forward. The right

to verification, the right to have the name and address of the

original creditor, the right to cessation of debt‐collection activities,

and others, are far from bare procedural protections—

they are protections that serve as the gateway to the Act’s substantive

regime. The Supreme Court confirmed in Spokeo that

intangible harms defined by Congress can qualify as injuryin‐

fact. 136 S. Ct. at 1549. The only type of injury it ruled out

was “a bare procedural violation, divorced from any concrete

harm.” Id. In addition, standing is not limited to cases in

which the plaintiff already has suffered the harm. It may be

“actual or imminent.” Id. at 1548, citing Lujan, 504 U.S. at 560

(emphasis added). Read in the proper light, Casillas’s pleadings

put forward enough to infer an imminent concrete and

particular injury.

The panel in our court reasons that “[b]ecause Madison’s

mistake didn’t put Casillas in harm’s way, it was nothing

more than a ‘bare procedural violation.’” Ante at 6. It said this

No. 17‐3162 23

because Casillas’s pleadings did not spell out the various

types of harm that loomed because of Madison’s failure to

warn her that communications that were not in writing were

a waste of time, and that but for the omitted information,

Casillas would have (or would have considered) using the

statutory procedures to assert her rights. But surely the panel

means to do more than alert future plaintiffs in these cases

that they should plead that they would stand on their rights

and to highlight the imminent loss of numerous substantive

protections afforded under the Act. A simple amendment to

the complaint would solve that problem.

Turning to substance, the key to differentiating between a

“bare” procedural right and a right grounded in substantive

interests lies in the concrete interest that the procedural right

is designed to protect. The Sixth Circuit captured this insight

nicely in Macy, where it said that “to determine whether a

procedural violation manifests injury in fact, a court properly

considers whether Congress conferred the procedural right in

order to protect an individual’s concrete interests.” 897 F.3d

at 754, quoting Strubel v. Comenity Bank, 842 F.3d 181, 189 (2d

Cir. 2016).

The point is simple: what, and whose, interest is the procedural

requirement designed to serve? If the procedural rule

stated that all notices had to be printed on three‐holed paper,

then it might be fair to say that this was a purely administrative

rule that did not implicate consumer rights. Or, as the Supreme

Court observed in Spokeo, if the envelope reflected a

mistaken zip code but the letter reached the consumer despite

that error, there is no possible further injury and one can say

conclusively that no harm resulted from the mistake. Yet some

24 No. 17‐3162

procedures—perhaps many—exist in order to protect underlying

substantive interests rather than for simple administrative

convenience. As the Sixth Circuit pointed out, the Ninth

Circuit’s decision in Spokeo on remand from the Supreme

Court helpfully describes the type of procedural injury that

implicates harm to those concrete substantive interests:

[A]n alleged procedural violation [of a statute] can by

itself manifest concrete injury where Congress conferred

the procedural right to protect a plaintiff’s concrete

interests and where the procedural violation presents

a risk of real harm to that concrete interest.

Macy, 897 F.3d at 755, quoting from Robins v. Spokeo, Inc., 867

F.3d 1108, 1113 (9th Cir. 2017).

By way of analogy, fundamental due process requires notice

and an opportunity to be heard, not for the fun of reading

the notice and listening to one’s own voice, but because, as

Mathews v. Eldridge said, those rights guard against mistakes

when the government is poised to deprive someone of a protected

interest. 424 U.S. 319, 333–35 (1976). But taken to the

extreme, even the right to notice and an opportunity to be

heard might be thought to be “bare” procedural rights, because

neither one assures any particular outcome for the person

involved.

Given the fact that a person who is not told that the objections

under sections 1692g(a)(4) and (5) must be made in writing,

or else they are ineffective to preserve a host of rights under

the Act, there is a strong case to be made that this case falls

on the concrete injury side of the line, not on the “bare procedural”

side. Unlike the mistaken zip code, the likelihood of

ongoing injury from forfeited rights, misunderstandings, and

No. 17‐3162 25

abusive practices is great enough to support standing. Madison

may have substantive defenses that apply to it, and so I

express no view on the ultimate merits of this case. I also express

no view on the appropriateness of class certification. I

dissent, however, from the decision that the question whether

Casillas herself has pleaded enough to pass the injury‐in‐fact

bar for Article III standing is so straightforward, and the Sixth

Circuit’s view so misguided, that we should not hear this case

en banc.

Affirmed