With the passage of the Fair Debt Collection Practices Act (FDCPA) in 1977, Congress created a private right of action through which consumers could sue debt collectors for overzealous and improper conduct traceable to their debt collection efforts. FDCPA violations can abridge a consumer’s rights under the statute without producing tangible economic or physical injury. As a result, many plaintiffs bringing claims under the FDCPA plead different theories of intangible harm to establish the required injury in fact conferring Article III standing to file suit in federal court. To establish that they have suffered an injury in fact, a plaintiff must demonstrate that their injuries were sufficiently concrete.
In the past six years, the U.S. Supreme Court has drastically altered its approach to determining whether an injury is sufficiently concrete, first in 2016 through Spokeo, Inc. v. Robins, and more recently in 2021 through TransUnion LLC v. Ramirez. Through Spokeo, the Court created a basic two-pronged test analyzing a pleaded intangible harm within the context of (1) the legislative intent behind Congress’s creation of a right of action and (2) the claim’s relationship to traditional American or English common-law torts that have long formed the basis for private suits. Through TransUnion, the Court clarified that plaintiffs must demonstrate actual harm rather than demonstrating their exposure to a risk of future harm. In recent years, a narrow application of the Spokeo test has produced a slew of decisions denying standing for FDCPA plaintiffs based primarily on a determination that their claims were not “close enough” to traditional American or English common-law torts. These decisions have created uncertainty surrounding the capacity for FDCPA plaintiffs to satisfy Article III standing requirements.
This Note explores the historic developments and rationale behind the passage of the FDCPA and the evolution of standing jurisprudence that has influenced the current FDCPA standing conflict. Ultimately, this Note advocates for adopting a kind-degree approach to the Spokeo test that would more deliberately incorporate congressional intent into the concreteness analysis and that would afford courts more flexibility in analogizing FDCPA claims to traditional common-law torts. Under the kind-degree approach, courts should find FDCPA claims to be sufficiently concrete to grant standing—both because of the clear congressional intent behind the creation of a private right of action to help realize the FDCPA’s remedial goals and because the FDCPA protects zones of privacy directly contemplated by common-law privacy torts.