The Fall from Standing: How the Courts Have Diverged From Financial Standing Standards

The Fair Credit Reporting Act (FCRA) and the Fair Debt Collection Practices Act (FDCPA) enable consumers to sue credit reporting and debt collection agencies for engaging in abusive practices such as reporting false information or continuous harassment. In order for a lawsuit to be heard, consumers must have constitutional standing, and thus, must have suffered a particularized and concrete injury. However, it may be difficult for consumers to allege a concrete injury given that credit and debt issues often result in harm that is intangible and difficult to categorize. While the Supreme Court has classified financial, intangible injuries as concrete in Spokeo, LLC v. Robins and TransUnion LLC v. Ramirez (collectively Spokeo-TransUnion), its interpretation has widely differed among the lower courts. These varying interpretations of Spokeo-TransUnion suggest that a new standard of categorizing concrete injuries is needed to ensure consistent rulings and efficiency. This Note reviews the lower courts’ application of Spokeo-TransUnion and analyzes their respective advantages and disadvantages in order to propose a new solution: Spokeo-TransUnion 2.0. Under this solution, an injury would be considered concrete if (1) it results in a similar experience of harm that is traditionally recognized, (2) it meets at least one element of that traditionally recognized harm, and (3) the harm was one intended to be protected by Congress. Spokeo-TransUnion 2.0 would honor the constitutional ideas of federalism, provide consumers with fair opportunity for redress, and limit potential abuse of the judicial system.