Wilbert Macy v. GC Services, Limited Parternship

Plaintiffs Wilbur Macy and Pamela J. Stowe

(Plaintiffs) brought this putative class action against GC Services Limited Partnership (GC), a

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debt collector, alleging violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.

§ 1692 et seq. Plaintiffs alleged that GC, in attempting to collect debt owed by Plaintiffs to GC’s

client, sent Plaintiffs letters that contained legally deficient warnings and advisories, in violation

of Section 1692g of the FDCPA. GC moved to dismiss the action for lack of Article III standing,

arguing that the alleged violations of the FDCPA do not constitute harm sufficiently concrete to

satisfy the injury-in-fact requirement of standing. The district court denied GC’s motion and

later certified the class. We granted GC’s petition for interlocutory review of the certification

order and permitted GC to challenge Plaintiffs’ standing. We now AFFIRM the district court’s

certification order and hold that Plaintiffs have Article III standing.

I. BACKGROUND

The facts are undisputed. Plaintiffs both received a letter from GC notifying them that

their Synchrony Bank credit-card accounts had been referred to GC for collection. The letters

contained the following statement about the procedure for obtaining verification of the debt and

the name and address of the original creditor:

[I]f you do dispute all or any portion of this debt within 30 days of receiving this

letter, we will obtain verification of the debt from our client and send it to you.

Or, if within 30 days of receiving this letter you request the name and address of

the original creditor, we will provide it to you in the event it differs from our

client, Synchrony Bank.

(R. 1-1, PID 14; R. 1-2, PID 16.)

Plaintiffs assert that the letters were deficient because they failed to inform Plaintiffs that

GC was obligated to provide the additional debt and creditor information only if Plaintiffs

disputed their debts in writing. Plaintiffs filed a complaint on their own behalf and on behalf of a

class of similarly situated individuals, alleging violations of two subsections of the FDCPA that

impose notice requirements containing the in-writing provisions, 1692g(a)(4) and (5).

GC moved to dismiss the suit for lack of standing. In denying GC’s motion, the district

court determined that GC’s letters created a “substantial” risk that consumers would waive

important protections afforded to them by the FDCPA by following GC’s deficient instructions

for obtaining verification of the debt or the identity of the original creditor.

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GC reasserted its challenge to standing at the class-certification stage. The district court

certified a class of Kentucky and Nevada consumers, rejecting GC’s argument that certain

elements of Federal Rule of Civil Procedure 23 were not satisfied because Plaintiffs had not

shown that each member of the class had standing. We granted GC’s petition for interlocutory

review of the district court’s certification order.

On appeal, GC argues that: 1) Plaintiffs’ claims must be dismissed because Plaintiffs lack

Article III standing, and 2) the district court abused its discretion by certifying the class “because

the certified class is not limited to individuals who sustained a concrete injury.” (Appellant’s Br.

at x.)

II. STANDING

A. Standard of Review

We “review a district court’s decision regarding a plaintiff’s Article III standing de

novo.” Murray v. U.S. Dep’t of Treasury, 681 F.3d 744, 748 (6th Cir. 2012) (citation omitted).

B. Applicable Law

“Article III of the Constitution limits the judicial power of the United States to the

resolution of ‘Cases’ and ‘Controversies,’ and ‘Article III standing . . . enforces the

Constitution’s case-or-controversy requirement.’” Hein v. Freedom From Religion Found., Inc.,

551 U.S. 587, 597–98 (2007) (alteration in original) (quoting DaimlerChrysler Corp. v. Cuno,

547 U.S. 332, 342 (2006)). A plaintiff must possess “‘such a personal stake in the outcome of

the controversy’ as to warrant his invocation of federal-court jurisdiction and to justify exercise

of the court’s remedial powers on his behalf.” Warth v. Seldin, 422 U.S. 490, 498–99 (1975)

(quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).

“[T]he irreducible constitutional minimum of standing contains three elements.” Lujan v.

Defs. of Wildlife, 504 U.S. 555, 560 (1992). “First, the plaintiff must have suffered an ‘injury in

fact’—an invasion of a legally protected interest which is (a) concrete and particularized, and (b)

actual or imminent, not conjectural or hypothetical.” Id. (internal quotation marks and citations

omitted). “Second, there must be a causal connection between the injury and the conduct

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complained of—the injury has to be ‘fairly . . . trace[able] to the challenged action of the

defendant, and not . . . th[e] result [of] the independent action of some third party not before the

court.’” Id. at 560–61 (alteration in original) (quoting Simon v. Eastern Ky. Welfare Rights Org.,

426 U.S. 26, 41–42 (1976)). “Third, it must be likely, as opposed to merely speculative, that the

injury will be redressed by a favorable decision.” Id. at 561 (internal quotation marks and

citation omitted).

“Each element of standing ‘must be supported in the same way as any other matter on

which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence

required at the successive stages of the litigation.’” Fair Elections Ohio v. Husted, 770 F.3d 456,

459 (6th Cir. 2014) (quoting Lujan, 504 U.S. at 561). “Where, as here, a case is at the pleading

stage, the plaintiff must ‘clearly . . . allege facts demonstrating’ each element.” Spokeo, Inc. v.

Robins, 136 S. Ct. 1540, 1547 (2016) (alteration in original) (footnote omitted) (quoting Warth,

422 U.S. at 518). Further, in class actions, “named plaintiffs who represent a class ‘must allege

and show that they personally have been injured, not that injury has been suffered by other,

unidentified members of the class to which they belong and which they purport to represent.’”

Simon, 426 U.S. at 40 n.20 (quoting Warth, 422 U.S. at 502); see also O’Shea v. Littleton,

414 U.S. 488, 494 (1974).

Here, GC challenges Plaintiffs’ ability to demonstrate the first standing requirement—

injury in fact.

C. Injury in Fact and Spokeo

The Supreme Court in Lujan stated that injury in fact “may exist solely by virtue of

statutes creating legal rights, the invasion of which creates standing.” 504 U.S at 578 (citation

and internal quotation marks omitted). However, after Lujan, courts divided over whether a

statutory violation, in and of itself, is sufficient to establish injury in fact; the Supreme Court

addressed the issue in Spokeo. See 136 S. Ct. at 1549.1 The Court held that a plaintiff does not

1Spokeo involved alleged violations of the federal Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et

seq. The purpose of the FCRA is to guarantee “fair and accurate credit reporting.” Id. § 1681(a)(1). To that end,

the statute imposes several requirements concerning the creation and use of consumer reports, including that

consumer-reporting agencies must “follow reasonable procedures to assure maximum possible accuracy of the

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“automatically satisf[y] 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” because

“Article III standing requires a concrete injury even in the context of a statutory violation.” Id.

Thus, a plaintiff does not satisfy the standing requirement by alleging a “bare procedural

violation” of a statute. Id. Rather, to establish injury in fact, a plaintiff must allege that the

procedural statutory violation caused the plaintiff to suffer some harm that “actually exist[s]”;

there must be an injury that is “real” and not “abstract” or merely “procedural.” Id. at 1548–49

(internal quotation marks omitted).

However, the Court went on to explain that a “violation of a procedural right granted by

statute can be sufficient in some circumstances to constitute injury in fact,” and “in such a case [a

plaintiff] need not allege any additional harm beyond the one Congress has identified.” Id. at

1549. The Court also explained that both tangible and intangible injuries, as well as a “risk of

real harm” could “satisfy the requirement of concreteness.” Id.2

Applying this framework to the claim before it, the Court stated:

On the one hand, Congress plainly sought to curb the dissemination of false

information by adopting procedures designed to decrease that risk. On the other

hand, Robins cannot satisfy the demands of Article III by alleging a bare

procedural violation. A violation of one of the FCRA’s procedural requirements

may result in no harm. For example, even if a consumer reporting agency fails to

provide the required notice to a user of the agency’s consumer information, that

information regardless may be entirely accurate. In addition, not all inaccuracies

cause harm or present any material risk of harm. An example that comes readily

to mind is an incorrect zip code. It is difficult to imagine how the dissemination of

an incorrect zip code, without more, could work any concrete harm.

Id. at 1550. Ultimately, the Court remanded the case without deciding whether Robins had

adequately alleged injury in fact.

information” contained within consumer reports. Id. § 1681e(b). In his complaint, Robins alleged that Spokeo

willfully failed to comply with the FCRA because Spokeo, a “people search engine” that gathers and provides

information about an individual’s address, phone number, marital status, approximate age, occupation, finances,

shopping habits, etc., collected and disseminated incorrect information about Robins. Spokeo’s profile of Robins

stated that Robins was married, had children, was in his 50s, had a job, was relatively affluent, and held a graduate

degree. According to Robins, this information was entirely inaccurate.

2Spokeo noted that “[i]n determining whether an intangible harm constitutes injury in fact, both history and

the judgment of Congress play important roles.” 136 S. Ct. at 1549.

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Unsurprisingly, the parties present diverging interpretations of Spokeo.3 Plaintiffs argue

that they need not allege any “additional harm beyond the one Congress has identified.” GC, on

the other hand, argues that “accusations of procedural violations of a statute, without a concrete

injury, do not confer standing,”4 and that standing exists only when a plaintiff alleges an injury

beyond the harm to a statutory interest identified by Congress. We disagree.

A long line of Supreme Court precedent, cited approvingly in Spokeo, supports the

conclusion that Spokeo did not mean to disturb the Court’s prior opinions recognizing that a

direct violation of a specific statutory interest recognized by Congress, standing alone, may

constitute a concrete injury without the need to allege any additional harm. See Spokeo, 136 S.

Ct. at 1549 (“Congress may ‘elevat[e] to the status of legally cognizable injuries concrete, de

facto injuries that were previously inadequate in law.’” (alteration in original) (quoting Lujan,

504 U.S. at 578)); id. (“‘Congress has the power to define injuries and articulate chains of

causation that will give rise to a case or controversy where none existed before.’” (quoting

Lujan, 504 U.S. at 580 (Kennedy, J., concurring))); id. (“[T]he violation of a procedural right

granted by statute can be sufficient in some circumstances to constitute injury in fact. In other

words, a plaintiff in such a case need not allege any additional harm beyond the one Congress

has identified.” (citing Fed. Election Comm’n v. Akins, 524 U.S. 11, 20–25 (1998); Pub. Citizen

v. Dep’t of Justice, 491 U.S. 440, 449 (1989))). But the injury must be “both concrete and

particularized.” Id. at 1548 (citing Summers v. Earth Island Institute, 555 U.S. 488, 493 (2009)).

As the Second Circuit recognized in Strubel v. Comenity Bank, 842 F.3d 181 (2d Cir.

2016), the Supreme Court’s citation to Lujan and Summers is “instructive” because “[t]hese

cases indicate 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

3The leading treatise observes “[t]he persisting obscurity of doctrine in this area,” and notes that Spokeo

“does little to relieve the uncertainty surrounding the Article III theories that limit Congressional authority to create

a new legal right, invasion of which supports standing.” 13B Charles Alan Wright, Arthur R. Miller & Edward H.

Cooper, Federal Practice and Procedure § 3531.13 (3d ed. 2017).

4Specifically, GC argues that Plaintiffs “clearly allege no more than an observed procedural violation of the

FDCPA, [and] it is abundantly clear that a ‘bare procedural violation, divorced from any concrete harm’ does not

satisfy the concrete injury requirement of Article III of the United States Constitution.” (Appellant’s Br. at 11

(quoting Spokeo, 136 S. Ct. at 1549).)

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individual’s concrete interests.” Id. at 189. Thus, Spokeo does not “categorically . . . preclude[]

violations of statutorily mandated procedures from qualifying as concrete injuries”; rather,

where Congress confers a procedural right in order to protect a concrete interest, a

violation of the procedure may demonstrate a sufficient “risk of real harm” to the

underlying interest to establish concrete injury without “need [to] allege any

additional harm beyond the one Congress has identified.”

Id. (citing Spokeo, 136 S. Ct. at 1549). However, “in the absence of a connection between a

procedural violation and a concrete interest, a bare violation of the former does not manifest

injury in fact.” Id.

On remand from the Supreme Court, the Ninth Circuit in Robins v. Spokeo, Inc., 867 F.3d

1108 (9th Cir. 2017) (“Spokeo II”), cert. denied, 138 S. Ct. 931 (2018), adopted Strubel’s

understanding of Spokeo as “instruct[ing] that an 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.” Spokeo II, 867 F.3d at 1113 (second alteration in original) (internal

quotations marks omitted) (quoting Strubel, 842 F.3d at 190). This test, the Ninth Circuit said,

“best elucidates the concreteness standards articulated by the Supreme Court in Spokeo.” Id.

Thus, relying on Strubel, Spokeo II held that courts confronting claims based on procedural

violations must “ask: (1) whether the statutory provisions at issue were established to protect [a]

concrete interest[] (as opposed to purely procedural rights), and if so, (2) whether the specific

procedural violations alleged in this case actually harm, or present a material risk of harm to,

such interests.” Id.5

5Other circuits have suggested similar interpretations of Spokeo. See, e.g., Dreher v. Experian Info. Sols.,

Inc., 856 F.3d 337, 346 (4th Cir. 2017) (holding that concrete harm may be shown by FCRA violation that causes a

plaintiff to “suffer[] . . . the type of harm Congress sought to prevent when it enacted the FCRA”). But see

Braitberg v. Charter Commc’ns, Inc., 836 F.3d 925 (8th Cir. 2016) (affirming the dismissal of a complaint alleging

violations of the Cable Communications Privacy Act for lack of standing, concluding that the risk of harm is

insufficient); Nicklaw v. Citimortgage, Inc., 839 F.3d 998, 1002–03 (11th Cir. 2016). In Nicklaw, the Eleventh

Circuit held that a plaintiff, alleging a violation of New York’s prompt-recording statute, did not have “standing to

sue when he allege[d] only a failure to record a satisfaction of mortgage within a statutory period and fail[ed] to

bring suit until after that statutory violation ha[d] been remedied.” 839 F.3d at 1000. The court rejected the

argument that “the intangible harm that occurs when the discharge of a mortgage is not timely recorded constitutes a

concrete injury” even if the “legislature intended to create a substantive right to have the certificate of discharge

timely recorded.” Id. at 1002. As explained infra, however, this court in Lyshe v. Levy, 854 F.3d 855 (6th Cir.

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The Sixth Circuit has also had occasion to interpret and apply Spokeo. In Soehnlen v.

Fleet Owners Ins. Fund, 844 F.3d 576, 580–82 (6th Cir. 2016), we held that the plaintiffs lacked

standing where they alleged that a health plan “fail[ed] to comply with the [Patient Protection

and Affordable Care Act] provisions enjoining annual and life-time limitations on benefits”

because the named “[p]laintiffs never show[ed] precisely what concrete harm they suffer[ed],”

alleging only “in extreme generality, that certain members of their class suffer[ed] from

conditions that [had] previously required medical expenses in excess of the benefit caps.” We

nevertheless “recognize[d] that the Supreme Court acknowledged that non-tangible injuries,

including violations of statutory rights, may satisfy the constitutional showing of an injury-infact.”

Id. at 582. Recently, we applied Spokeo to alleged FDCPA violations in Lyshe v. Levy,

854 F.3d 855 (6th Cir. 2017), and although finding no standing in that case, we noted that

“Spokeo allows for a bare procedural violation to create a concrete harm” in cases alleging

“failure to comply with a statutory procedure that was designed to protect against the harm the

statute was enacted to prevent.” Id. at 859; see also id. at 860 (citing with approval Strubel’s

conclusion that “a plaintiff may establish standing based on an alleged procedural violation if

Congress conferred that procedural right to protect a plaintiff’s concrete interest and if that

violation presents a [material] risk of harm to that interest”).

In sum, Spokeo categorized statutory violations as falling into two broad categories:

(1) where the violation of a procedural right granted by statute is sufficient in and of itself to

constitute concrete injury in fact because Congress conferred the procedural right to protect a

plaintiff’s concrete interests and the procedural violation presents a material risk of real harm to

that concrete interest; and (2) where there is a “bare” procedural violation that does not meet this

standard, in which case a plaintiff must allege “additional harm beyond the one Congress has

identified.” Spokeo, 136 S. Ct. at 1549.

2017), made clear that an alleged procedural violation of a statute may give rise to a sufficiently concrete injury for

standing purposes when the violation presents a real risk of harm to a plaintiff’s interest that Congress sought to

protect.

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D. Analysis

Congress enacted the FDCPA because of “abundant evidence of the use of abusive,

deceptive, and unfair debt collection practices by many debt collectors” that “contribute to the

number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of

individual privacy.” 15 U.S.C. § 1692(a). Thus, the FDCPA’s purpose “is to protect consumers

from a host of unfair, harassing, and deceptive debt collection practices,” S. Rep. No. 95-382, at

2 (1977), and to “eliminate abusive debt collection practices by debt collectors, to insure that

those debt collectors who refrain from using abusive debt collection practices are not

competitively disadvantaged, and to promote consistent State action to protect consumers against

debt collection abuses.” 15 U.S.C. § 1692(e); see also Barany-Snyder v. Weiner, 539 F.3d 327,

332 (6th Cir. 2008) (“As this court has noted, the FDCPA is extraordinarily broad, crafted in

response to what Congress perceived to be a widespread problem.” (citation and internal

quotation marks omitted)); Hamilton v. United Healthcare of La., Inc., 310 F.3d 385, 392 (5th

Cir. 2002) (“Congress, through the FDCPA, has legislatively expressed a strong public policy

disfavoring dishonest, abusive, and unfair consumer debt collection practices, and clearly

intended the FDCPA to have a broad remedial scope.”).

To advance these goals, the FDCPA codified several specific consumer-protective rights,

including those in Section 1692g, which sets out requirements for a debt collector’s “initial

communication with a consumer in connection with the collection of any debt,” including that

the communication notify the consumer of the right to dispute the debt and to seek verification of

the validity of the debt through written notice and request to the creditor. 15 U.S.C. § 1692g(a).

If the debtor makes such a written verification request, the debt collector must cease collection

efforts until the verification is provided to the consumer. Id. § 1692g(b). Specifically,

Section 1692g(a) requires a debt collector to provide a consumer with a notice that contains:

(4) a statement that if the consumer notifies the debt collector in writing within [a]

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

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(5) a statement that, upon the consumer’s written request within [a] 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) (emphases added).6 And Section 1692g(b) provides that

[i]f the consumer notifies the debt collector in writing within the thirty-day period

. . . that the debt, or any portion thereof, is disputed, or that the consumer requests

the name and address of the original creditor, the debt collector shall cease

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

obtains verification of the debt or a copy of a judgment, or the name and address

of the original creditor, and a copy of such verification or judgment, or name and

address of the original creditor, is mailed to the consumer by the debt collector.

Id. § 1692g(b).

Significantly, the FDCPA gives consumers a private right of action to enforce its

provisions against debt collectors. 15 U.S.C. § 1692k(a).

Assuming arguendo that the language of GC’s letters constitutes a procedural violation of

the FDCPA, Plaintiffs have demonstrated a sufficient “risk of real harm” to the underlying

interest to establish concrete injury without the “need [to] allege any additional harm beyond the

one Congress has identified.” Spokeo, 136 S. Ct. at 1549.

As the Second Circuit explained, “Section 1692g furthers th[e] purpose [of protecting

debtors from abusive debt collection practices] by requiring a debt collector who solicits

payment from a consumer to provide that consumer with a detailed validation notice, which

allows a consumer to confirm that he owes the debt sought by the collector before paying it.”

Papetti v. Does 1-25, 691 F. App’x 24, 26 (2d Cir. 2017). Importantly, “[t]he aim of § 1692g is

to provide a period for the recipient of a collection letter to consider her options. It is also to

make the rights and obligations of a potentially hapless debtor as pellucid as possible.” Jacobson

v. Healthcare Fin. Servs., Inc., 516 F.3d 85, 95 (2d Cir. 2008); see also Zirogiannis v. Seterus,

Inc., 707 F. App’x 724, 727 (2d Cir. 2017) (“We have no trouble concluding that § 1692g of the

6This notice must be either contained in the “initial communication with a consumer” or provided within

five days of such communication. 15 U.S.C. § 1692g(a). It is undisputed that GC did not inform Plaintiffs that they

must dispute their debt in writing. GC, however, does not concede that the omission of the in-writing requirement

constitutes a violation of the FDCPA, and we express no opinion on that issue.

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FDCPA ‘protect[s] an individual’s concrete interests. . . . Congress plainly sought to protect

consumers’ concrete economic interests by requiring debt collectors to comply with the notice

provisions articulated in § 1692g.” (citation omitted)).

GC’s letters present a risk of harm to the FDCPA’s goal of ensuring that consumers are

free from deceptive debt-collection practices because the letters provide misleading information

about the manner in which the consumer can exercise the consumer’s statutory right to obtain

verification of the debt or information regarding the original creditor. In responding to a debtcollection

notice, an oral inquiry or dispute of a debt’s validity has different legal consequences

than a written one. See Camacho v. Bridgeport Fin. Inc., 430 F.3d 1078, 1082 (9th Cir. 2005)

(noting that Section 1692g “assigns lesser rights to debtors who orally dispute a debt and greater

rights to debtors who dispute it in writing”); Hooks v. Forman, Holt, Eliades & Ravin, LLC,

717 F.3d 282, 286 (2d Cir. 2013) (“Debtors can protect certain basic rights through an oral

dispute, but can trigger a broader set of rights by disputing a debt in writing.”). If a consumer

contests a debt by telephone rather than in writing, the consumer loses most of the protections for

debtors set forth in Section 1692g7; the debt-collection agency is under no obligation to verify

the debt and to cease all collection efforts as required by §1692g(b).

Plaintiffs allege in their complaint:

33. Defendant’s misstatement of the rights afforded by the FDCPA would cause

the least-sophisticated consumer[8] to understand, incorrectly, that validation of

the debt, or a request for the name and address of the original creditor, could be

obtained through an oral request, or by means other than in writing. Such a

misunderstanding could lead the least-sophisticated consumer to waive or

otherwise not properly vindicate her rights under the FDCPA.

34. Indeed, failing to dispute the debt in writing, or failing to request the name

and address of the original creditor, in writing, would cause a consumer to waive

the important protections afforded by 15 U.S.C. § 1692g(b)—namely, that a debt

collector cease contacting the consumer until the debt collector provides the

7If consumers contest a debt orally, they may still dispute the debt, 15 U.S.C. § 1692g(a)(3), but they do

not invoke their rights under Sections 1692g(a)(4), (a)(5), and (b), at issue here.

8The FDCPA is a strict liability statute that is liberally construed in favor of the consumer and courts

evaluate FDCPA claims under the “least sophisticated consumer” standard. Stratton v. Portfolio Recovery Assocs.,

LLC, 770 F.3d 443, 448–50 (6th Cir. 2014).

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consumer with verification of the alleged debt and/or the original creditor’s name

and address, as requested.

(R. 1, PID 6-7.)

Thus, Plaintiffs allege a risk of harm that is traceable to GC’s purported failure to comply

with federal law, namely, the possibility of an unintentional waiver of FDCPA’s debt-validation

rights, including suspension of collection of disputed debts under Section 1692g(b). Without the

information about the in-writing9 requirement, Plaintiffs were placed at a materially greater risk

of falling victim to “abusive debt collection practices.” 15 U.S.C. § 1692(e); see also Anarion

Invs. LLC v. Carrington Mortg. Servs., LLC, 794 F.3d 568, 572 n.2 (6th Cir. 2015) (noting that

debt-collector abuse takes many forms, “including . . . misrepresentation of a consumer’s legal

rights”). And, as the FDCPA declares, its purpose is to eliminate such abusive practices.

15 U.S.C. § 1692(e). To that end, the FDCPA grants a private right of action to a consumer who

receives a defective communication. Id. § 1692k.

GC advances several arguments in response. First, GC argues that “the undisputed

evidence forecloses any finding of standing because it is undisputed [GC] follows a policy of

honoring verbal disputes of debts for obtaining debt verification and verbal requests for the name

and address of the original creditor exactly as it does disputes or requests made in writing.”

(Appellant’s Br. at 14-15 (citing Decl’n of Mark Schordock, Executive Vice President of GC’s

Operations, R. 25-1, PID 245-247).) However, when considering whether pleadings fail to make

out a justiciable case for want of standing, our analysis must be confined to the four corners of

the complaint. Parsons v. U.S. Dep’t of Justice, 801 F.3d 701, 706 (6th Cir. 2015). GC’s policy

is beyond the four corners of the complaint. Further, our task is merely to determine whether

Plaintiffs’ complaint adequately establishes standing such that they are entitled to an adjudication

of their asserted claims. GC improperly asks us to examine issues that pertain to liability and

damages. See Rocky Mountain Helium, LLC v. United States, 841 F.3d 1320, 1325 (Fed. Cir.

9Congress distinguished between FDCPA protections that may be triggered orally (such as those in Section

1692g(a)(3)), and those that may only be invoked in writing (such as the ones in Sections 1692g(a)(4), (a)(5), and

(b)).

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2016) (“[A] merits determination is not a permissible one for the standing analysis, which

assumes the merits of a litigant’s claim.”).

GC next argues that its failure to include the in-writing requirement never materialized

into actual harm.10 However, as explained, Plaintiffs may satisfy the concreteness prong of the

injury-in-fact requirement of Article III standing by alleging that GC’s purported FDCPA

violations created a material risk of harm to a congressionally recognized interest. The

FDCPA’s requirement that debt collectors “not use any false, deceptive, or misleading

representation or means in connection with the collection of any debt” is a core object of the

FDCPA, which aims to “eliminate abusive debt collection practices by debt collectors.”

15 U.S.C. § 1692(e). Including a materially false, deceptive, or misleading statement in a debtcollection

communication may cause an individual “to lose the very . . . rights that the law

affords him.” Strubel, 842 F.3d at 190. And the communication here risked just that – without

the required notice of the in-writing requirement, consumers risked waiving important

verification rights under Section 1692g(a)(4) and (a)(5) and their right to suspension of

collection of disputed debts pending verification under Section 1692g(b). Accordingly,

“[h]aving alleged such procedural violations, [Plaintiffs were] not required to allege ‘any

additional harm’ to demonstrate the concrete injury necessary for standing,” id. at 191 (quoting

Spokeo, 136 S. Ct. at 1549), and GC’s claim that Plaintiffs have not alleged a concrete injury

because they did not identify actual harm stemming from GC’s defective notices fails.

GC next invokes Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013), arguing that “a

‘possible future injury,’ which is the most [Plaintiffs] have alleged, even one that is concrete and

particularized, is not imminent and does not confer standing.” (Appellant’s Br. at 10.) Clapper,

however, is distinguishable. Clapper focused on allegations by attorneys and journalists who

feared government surveillance of their communications with clients and sources in foreign

countries. 568 U.S. at 406–07. The plaintiffs had curtailed telephone and electronic

10Specifically, GC argues that Plaintiffs “do not show, or even argue, the challenged letters led them to

waive any right(s) under the FDCPA, or caused them any confusion or inconvenience. [Plaintiffs do not] allege they

wished to dispute their debt or that they wished to request [that GC] provide the name and address of the original

creditor. Indeed, the identity of the original creditor is not even relevant as [Plaintiffs] allege the original creditor is

Synchrony Bank, who engaged [GC].” (Appellant’s Br. at 14.)

No. 17-5593 Macy, et al. v. GC Servs. Ltd. P’ship Page 14

communications and undertaken such expensive steps as foreign travel to reduce the risk of

surveillance under the Foreign Intelligence Surveillance Act. Id. at 407. The Supreme Court

found that “the costs [the plaintiffs] have incurred to avoid surveillance are simply the product of

their fear of surveillance, and . . . such a fear is insufficient to create standing.” Id. at 417. As

the Ninth Circuit on remand in Spokeo II explained:

In Clapper, the plaintiffs sought to establish standing on the basis of harm they

would supposedly suffer from threatened conduct that had not happened yet but

which they believed was reasonably likely to occur—specifically on their belief

that “some of the people with whom they exchange[d] . . . information [were]

likely targets of surveillance” under a federal statute. Id. at 1145 (emphasis

added). The plaintiffs sought to strike down the statute authorizing such

surveillance in order to remove the threat that their communications would

eventually be intercepted. Id. at 1145–46. The question for the Court was how

certain such predicted surveillance needed to be in order to create an injury in

fact. In such a case, the Supreme Court explained that a plaintiff cannot show

injury-in-fact unless the “threatened injury [is] certainly impending” as opposed

to merely speculative. Id. at 1147–48 (emphasis added) (internal quotation marks

omitted).

***

Clapper’s discussion of what must be shown to establish standing based on

anticipated conduct or an anticipated injury is therefore beside the point. Clapper

did not address the concreteness of intangible injuries like the one [Plaintiff]

asserts, and the Court in [Spokeo] did not suggest that Congress's ability to

recognize such injuries turns on whether they would also result in additional

future injuries that would satisfy Clapper. Many previous Supreme Court cases

recognize that such statutorily recognized harms alone may confer standing

(without additional resulting harm), none of which the Court purported to doubt

or to overrule in [Spokeo].

Spokeo II, 867 F.3d at 1118 (citations omitted; first through fourth alterations in original).

GC next relies on Lyshe in arguing that we have already “applied Spokeo to a claim under

the FDCPA and found no standing where, as here, the plaintiff did not sustain a concrete injury.”

(Appellant’s Br. at 11.) In Lyshe, the alleged FDCPA violation arose when the defendants, in the

course of attempting to collect the plaintiff’s debt in state court, “made misstatements in their

discovery requests about state procedural rules.” 854 F.3d at 859. Specifically, the defendants

told the plaintiff that his responses to their requests for admission needed to be sworn and

No. 17-5593 Macy, et al. v. GC Servs. Ltd. P’ship Page 15

notarized, when in fact they did not. Id. at 857. The defendants also allegedly failed to serve

their discovery requests in an electronic format, although they offered to do so upon request. Id.

We held that those alleged violations, standing alone, did not state a concrete harm, reasoning

that “the procedural violation alleged here—a violation of state law procedure not required under

FDPCA,” at most could have caused the plaintiff to “visit a notary and contact Appellees to

obtain electronic copies of the discovery,” which “was not the type of harm the FDCPA was

designed to prevent.” Id. at 859. Thus, Lyshe is distinguishable. Here, the harm Plaintiffs

allege—being misled by a debt collector about the rights the FDCPA gives to debtors—is

precisely the type of harm—abusive debt-collection practices—the FDCPA was designed to

prevent.

Nor is Hagy v. Demers & Adams, 882 F.3d 616 (6th Cir. 2018), our most recent opinion

addressing FDCPA standing, of any help to GC. Hagy involved a claim alleging violations of

the FDCPA based on a letter that failed to disclose that it was a “communication . . . from a debt

collector.” Id. at 621-23. In dismissing the claim on standing grounds, we observed that the

plaintiffs “have not shown, in truth have not even tried to show, that this failure to disclose

caused them any actual harm beyond [a] ‘bare procedural violation.’” Id. at 622. In fact, the

allegedly deficient letter turned out to be helpful to the plaintiffs. Id. To be sure, Hagy did not

conduct a risk-of-harm analysis, but no risk of harm was alleged. Indeed, Hagy explained that

the claim failed in part because the plaintiffs did not allege any risk of harm, such as “that the

non-disclosure created a risk of double payment,” which is the kind of abusive debt-collection

practice the mandated disclosures were aimed to prevent. Id. at 621–22. Thus, Hagy is not

inconsistent with Lyshe, Strubel, Spokeo II, or our decision here.

Finally, GC argues that “[t]he district court incorrectly found standing based on potential

harm to class members instead of” to the two named Plaintiffs. (Appellant’s Br. at 15-17.) GC

is correct that potential class representatives must demonstrate “individual standing vis-a-vis the

defendant; [they] cannot acquire such standing merely by virtue of bringing a class action.”

Fallick v. Nationwide Mut. Ins. Co., 162 F.3d 410, 423 (6th Cir. 1998). However, we conclude

de novo that the named Plaintiffs have standing, thus, even if the district court found standing

No. 17-5593 Macy, et al. v. GC Servs. Ltd. P’ship Page 16

based on harm to potential class members, any error in the district court’s analysis is of no

significance.

In sum, Plaintiffs have satisfied the concreteness prong of the injury-in-fact requirement

of Article III standing by alleging that GC’s purported FDCPA violations created a material risk

of harm to the interests recognized by Congress in enacting the FDCPA.

III. CLASS CERTIFICATION

A. Standard of Review

We “review the district court’s decision to grant or deny class certification under an

abuse-of-discretion standard.” Rikos v. Procter & Gamble Co., 799 F.3d 497, 504 (6th Cir.

2015) (citation omitted). “An abuse of discretion occurs if the district court relies on clearly

erroneous findings of fact, applies the wrong legal standard, misapplies the correct legal standard

when reaching a conclusion, or makes a clear error of judgment.” Young v. Nationwide Mut. Ins.

Co., 693 F.3d 532, 536 (6th Cir. 2012). In the class action context, a district court is given

“substantial discretion in determining whether to certify a class, as it possesses the inherent

power to manage and control its own pending litigation.” Rikos, 799 F.3d at 504 (citation and

internal quotation marks omitted). Therefore, our review is “very limited”; we may reverse

“only if a strong showing is made that the district court clearly abused its discretion.” Young,

693 F.3d at 536 (citation omitted).

B. Applicable Law

To merit certification, a putative class must satisfy the four requirements of Rule 23(a):

(1) numerosity (a class [so large] that joinder of all members is impracticable);

(2) commonality (questions of law or fact common to the class); (3) typicality

(named parties’ claims or defenses are typical . . . of the class); and (4) adequacy

of representation (representatives will fairly and adequately protect the interests of

the class).

Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613 (1997) (alterations in original) (internal

quotation marks omitted). A putative class must also fit within one of the three types of classes

listed in Rule 23(b). The only type relevant here is Rule 23(b)(3), which permits a class to be

No. 17-5593 Macy, et al. v. GC Servs. Ltd. P’ship Page 17

certified where “the court finds that the questions of law or fact common to class members

predominate over any questions affecting only individual members, and that a class action is

superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.

R. Civ. P. 23(b)(3).

C. Analysis

GC’s opposition to certification rests primarily on its contention that Plaintiffs lack

standing. Thus, having rejected GC’s standing argument, we reject GC’s class certification

challenge as well.

GC argues that “there is no commonality as [Plaintiffs] have failed in their burden to

demonstrate any injury at all.” (Appellant’s Br. at 18-19, 21.)11 The district court found that

Plaintiffs satisfied the commonality requirement because, as Plaintiffs alleged,

“[e]ach class member . . . has the same claim against” [GC]: that the company

violated the FDCPA by failing to include the in-writing requirement in the debtcollection

letters it sent to them[, and the] [r]esolution of this “common

contention . . . will resolve an issue that is central to the validity of each one of the

claims in one stroke.” [Wal-Mart Stores, Inc. v.] Dukes, 564 U.S. [338,] 350

[(2011)].

Macy v. GC Servs. Ltd. P’ship, 318 F.R.D. 335, 339 (W.D. Ky. 2017) (record citations omitted).

As the district court noted, “[r]eceipt of similar dunning letters from the same debt collector has

repeatedly been found to satisfy Rule 23’s commonality requirement.” Id. (citing Fariasantos v.

Rosenberg & Assocs., 303 F.R.D. 272, 275 (E.D. Va. 2014); Edwards v. McCormick, 196 F.R.D.

487, 494 (S.D. Ohio 2000)). Other FDCPA cases also support the district court’s finding

regarding commonality. See, e.g., Quiroz v. Revenue Prod. Mgmt., Inc., 252 F.R.D. 438, 442

(N.D. Ill. 2008) (“The requisite common nucleus of operative fact exists in FDCPA claims when

the controversy arises from a standard form debt collection letter.” (citations omitted)); Bicking,

2011 WL 5325674, at *2; Wess v. Storey, No. 08-623, 2011 WL 1463609, at *7 (S.D. Ohio Apr.

11Specifically, GC contends that “because “neither [Plaintiff] presented any allegation or evidence that

either sustained the same risk; neither alleged either disputed the debt, sought to verify the debt, or sought the name

and address of the original creditor. In fact, there was no actual risk to either because it is undisputed they made no

effort to contact [GC].” (Appellant’s Br. at 18-19.)

No. 17-5593 Macy, et al. v. GC Servs. Ltd. P’ship Page 18

14, 2011). Apart from merely repackaging its standing argument with a commonality label, GC

makes no effort to argue that the district court abused its discretion.

The same is true of GC’s argument regarding adequacy, (Appellant’s Br. at 21 (“The

record does not support the district court’s implied finding that [Plaintiffs] have a common

interest with the members of the class because neither [Plaintiff] alleged an injury in fact.”)), and

typicality, (id. at 18 (“Here, there is clearly no typicality. As already shown, [Plaintiffs] have not

alleged they sustained any injury as a result of the wording of the letters.”)). GC’s argument

regarding predominance is also a derivative of its standing argument. (Id. at 22-23 (“[E]ach

individual would have to prove he or she contacted [GC] by a non-written means to dispute his

or her debt or request the name and address of his or her original creditor to prove he or she

suffered the requisite ‘concrete and particularized’ injury. There is no evidence all of the class

members sustained a concrete injury.”).)

Thus, because GC failed to demonstrate that the district court abused its discretion, we

will not disturb the district court’s grant of class certification.

We AFFIRM the district court’s grant of class certification and hold that Plaintiffs have Article III standing.