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Volume 108, Issue 1


Standing Up to TransUnion: How FDCPA Plaintiffs Can Satisfy TransUnion’s Heightened Concrete Injury Standard

Joseph P. Teknus

J.D., Cornell Law School, 2023; B.A. in Economics and History, William & Mary, 2020.

6 Mar 2023

After noticing a pervasive, nationwide problem, Congress enacts legislation. The legislation creates new, individual rights and gives private citizens the ability to vindicate those rights in federal court. The idea is simple: to attack the problem, Congress empowers private citizens to hold violators accountable. But if a plaintiff sues a violator, are there any federal courts that can consider the merits of her case? The answer used to be clear—“where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded.” Today, the violation of a private right is not enough. Instead, according to the Supreme Court’s recent decision in TransUnion LLC v. Ramirez, every plaintiff who files suit in federal court must also show that the defendant’s violation caused them a separate, concrete injury. Moreover, an injury is concrete only when it has “a close historical or common-law analogue.” If a plaintiff cannot make that showing, then she lacks Article III standing, and cannot sue in federal court.

Read expansively, TransUnion closes the courthouse door to plaintiffs whose rights have been violated and undermines statutory schemes that define new rights. At particular risk are those statutory schemes that depend on private plaintiffs to enforce the law. This Note analyzes how the Court’s decision in TransUnion affects the Fair Debt Collection Practices Act of 1977 (FDCPA), a federal statute that grants debtors substantive rights they lacked at common law and is largely enforced by private plaintiffs.

While TransUnion poses new hurdles for FDCPA plaintiffs, I argue that most plaintiffs can satisfy TransUnion’s heightened standard. Most FDCPA plaintiffs can satisfy TransUnion by arguing that they have suffered harms similar to those embedded in the torts of fraudulent misrepresentation, intentional infliction of emotional distress, and intrusion upon seclusion. TransUnion does not require plaintiffs to show that their injuries are identical to injuries actionable at common law. Therefore, plaintiffs need only identify harms that are similar in kind, but not degree, to common law harms. Accordingly, I maintain that FDCPA plaintiffs do not need to establish every element of a common-law cause of action to show they have suffered a concrete injury: via the FDCPA, Congress has reified harms that are unactionable at common law. If the courts disagree and find that most FDCPA plaintiffs cannot satisfy TransUnion’s new standard, I argue that Congress can amend the FDCPA to include language that gives plaintiffs the explicit right to recover for emotional harms. By doing so, Congress can use its Article I power to make emotional harms concrete and preserve the FDCPA.

To read this Note, please click here: Standing Up to TransUnion: How FDCPA Plaintiffs Can Satisfy TransUnion‘s Heightened Concrete Injury Standard