Church Provides No Sanctuary: Sixth Circuit’s FDCPA Decision May Breathe New Life into TCPA Spokeo Arguments

This article originally appeared on the Consumer Financial Services Legal Update. It is republished with permission from the author.

A number of Circuit Courts of Appeal have addressed Spokeo challenges to consumer protection statutes in the 646 days (and counting) since the U.S. Supreme Court handed down Spokeo, Inc. v. Robins, ––– U.S. ––––, 136 S. Ct. 1540, 194 L. Ed. 2d 635 (2016). Most of those decisions have given the issue of standing short shrift, leapt to conclusions or—perhaps worst of all—shown a deep and unrelenting deference to Congressional legislative power in assessing Article III limits. The result has been languid opinions and squishy legal doctrine in the arena of standing, where only precision and intellectual rigor ought to prevail.

No case better exemplifies this unfortunate era of judicial abdication than the Eleventh Circuit’s flubbed-and-yet-often-cited-unpublished-nightmare-opinion of Church v. Accretive Health, Inc., 654 Fed. Appx. 990 (11th Cir. 2016). There it was held, in essence, that whenever Congress passes a statute purporting to create a new right, it also creates a new harm—the deprivation of that right when the statute is not complied with. Just like that, it seemed, Spokeo was de-fanged in the consumer-protection context—all a plaintiff had to do was cast the elements of a consumer protection statute as an affirmative or substantive right and any statutory violation of that “right” necessarily amounted to proof of a concrete “harm” for standing purposes. It was a neat trick, although utterly transparent and intellectually dishonest to high heaven.

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