Judge Barrett on Statutory Claims I

These civil law claims arise out of statutes and do not fit within any other category. As always, please read the overview for context.

Carello v. Aurora Policemen Credit Union (2019)

The Aurora Policemen Credit Union, as the name suggests, offers membership only to specified municipal and county employees. Matthew Carello was not one of those employees. Rather, Mr. Carello visited the Credit Union’s web-site to see if it complied with the Americans with Disabilities Act. Carello, who is blind, found that the web-site did not support the screen-reading device he needs to fully engage with online materials. [2] Carello sued the Credit Union, seeking injunctive relief as well as costs and attorneys’ fees. Judge Thomas Durkin dismissed the case for lack of standing, holding that Carello had failed to allege injury-in-fact. [2-3]

Judge Barrett recognised that “tester” status did not preclude standing but also did not necessarily confer it. A tester was still required to allege, among other things, an injury-in-fact. [4] Judge Barrett held that Carello had failed to do so because, as specifically authorised by Illinois law, the Credit Union had categorically limited its membership to a group that excluded Carello. Effectively, Carello was legally barred from obtaining the Credit Union’s services. Therefore, any dignitary harm caused to those unable to use the web-site could not be directed at Carello; he couldn’t join the Credit Union regardless, so he was no more affected by the Credit Union’s discrimination than a sighted person who was equally outraged by its failure to comply with the ADA. [4-6] Judge Barrett held that Carello had also suffered no informational harm, because no information had been withheld. The information was on the web-site and Carello could, for example, have asked somebody to read it to him. That doing so was more difficult than use of the screen reader constituted a dignitary harm that, as previously described, did not give rise to standing. [7-8] The future injury alleged in his request for injunctive relief was that same rejected theory of dignitary harm. [8-9]

Judge Barrett therefore affirmed the dismissal of the complaint.

Casillas v. Madison Ave. Associates, Inc. (2019)

Judge Barrett listed this as number nine on the list of her ten (actually eleven) most important cases on the Court of Appeals for the 7th Circuit. She summarised the case as follows:

Paula Casillas filed a class action against a debt collection company because they sent her a debt-collection letter that described the process that the Fair Debt Collection Practices Act provides for verifying a debt but did not, as required by the Act, specify that she had to communicate in writing to trigger that process. The only harm that Casillas claimed to have suffered, however, was the receipt of an incomplete letter. I explained that this claim of a bare procedural violation, divorced from any concrete harm, was not sufficient to satisfy Article Ill’s standing requirements.

[2020 Questionnaire at 47]

Paula Casillas owed money to Harvester Financial Credit Union. Harvester Financial Credit Union presumably asked Madison Avenue Associates to collect that money. Under the Fair Debt Collection Act, a debt collector is required to inform a debtor of certain information, including how to dispute the validity of the debt (which had a time limit of thirty days) or to request more information about the debt. Both processes could only be done in writing, which the debt collector also had to tell the debtor. When Madison sent Ms. Casillas her letter, it did not explain that she had to act in writing. [2-3]

Casillas did not try unsuccessfully, or even intend to try, to take advantage of these procedures. Instead, she filed a class action against Madison. She sought statutory damages and attorneys’ fees, which were potentially extensive, so Madison agreed to settle. [3] Before the district court confirmed the settlement (as required for class actions) the Court of Appeals for the 7th Circuit decided Groshek v. Time Warner Cable, Inc. Judge William Lawrence held that Groshek required him to dismiss the case because Casillas did not have standing. [4] Casillas sought leave to amend her complaint but Judge Lawrence denied her request. [17]

The question before the Court of Appeals for the 7th Circuit was whether Casillas had standing to bring her lawsuit. Judge Barrett, writing for the Court, quickly concluded that Casillas did not. Since Casillas had not intended to use these procedures, she had not been harmed by not being informed of how to do so. Citing Spokeo, Inc. v. Robbins, Judge Barrett held that Casillas had suffered no more than a “bare procedural violation.” [6] The Court of Appeals for the 6th Circuit had disagreed in Macy v. GC Services Limited Partnership, reasoning that the lack of information could prevent consumers from exercising their rights, but Judge Barrett held that this was not enough to confer standing if it did not harm Casillas herself. [9-11] It is possible that, in fact, Casillas had intended or tried to use these procedures but did not allege this in her complaint; if so, she did not explain this to Judge Barrett’s satisfaction, because Judge Barrett held that the district court had been right to prohibit Casillas from amending her complaint. [17]

The rest of the opinion was spent distinguishing cases. In Robertson v. Allied Solutions, the 7th Circuit found standing where a prospective employer did not provide the plaintiff a copy of her background check before retracting its job offer, as required by the Fair Credit Reporting Act. Judge Barrett held that this case was inapplicable, because the plaintiff had alleged violations of not just the statute but the interest protected by the statute, in that the plaintiff had been denied the opportunity to contest the background report. This was the denial of substantive injury, not of mere statutory rights. [6-9] Judge Barrett found it closer to Groshek, in which the defendant had provided all the required information but had not (as required) presented it on a separate page. [8-9] Judge Barrett also found the Second Circuit decision Strubel v. Comenity Bank inapposite, even assuming it was rightly decided, because there had been at least a chance that the plaintiff would have used the withheld information and that information the plaintiff would not have used would be harmless (although it would be more accurate to say that the plaintiff could not have used that information). [11-12 and note 5 on page 12] Citing Williams v. OSI Education Services, Judge Barett held that the “unsophisticated consumer” standard was a rule of interpretation, not of standing. [Note 3 on page 10]

Casillas argued that she had standing because she had been denied information, citing Supreme Court authority. Judge Barrett found that these cases did not apply, both because Casillas had not sought yet been denied government information subject to public disclosure and because the plaintiffs in those case had alleged that the denial would impair their ability to use the information for the purpose protected by the statute. [12-15] Finally, Judge Barrett held that Havens Realty Corp. v. Coleman was not relevant. In Havens, a Black woman investigated an apartment complex that she suspected of racial discrimination, requesting information on vacancies although she had no intention of living there; when it lied to her, claiming there were no vacancies, she sued it under the Fair Housing Act. Judge Barrett held that “freedom from racial discrimination in the pursuit of housing” was the harm to be prevented by the Fair Housing Act, which included the right not to be lied to because of one’s race. [15-16] Although the Eleventh Circuit had held that Havens Realty did create standing to challenge violations of the Fair Credit Reporting Act, Judge Barrett observed that the decision (Church v. Accretive Health) was not precedential and applied to a broader denial of information. If Church still conflicted with her decision, Judge Barrett rejected it. [Note 7 on page 16]

Finally, Judge Barrett held that Casillas had not challenged the dismissal of her complaint that omitting the omission was an unfair or unconscionable debt collection practice, so she had forfeited that argument. [17]

Because this decision differed from the 6th Circuit’s, creating a circuit split, it was circulated among the judges of the Court of Appeals. The Court decided against re-hearing the case en banc. [Note 4 on page 11] Chief Judge Wood, joined by Judges Rovner and Hamilton, dissented from the decision. [18] The Chief Judge would have considered the issue en banc, both because the decision would make it more difficult to enforce the Act against abusive debt collectors and because 7th Circuit case-law was insufficiently clear about which procedural violations sufficed to establish standing. [18-19] After reciting the pleading standards, Chief Judge Wood wrote that Madison’s failure to inform Casillas of the need to communicate in writing put Casillas at risk of losing the important protections granted by the Act, which was enough to confer standing on Casillas under the Supreme Court’s jurisprudence. [19-22] Judge Wood pointed out that if Casillas’ lack of standing flowed from omitting specific details of the way she would be harmed by deprivation of this information, amending the complaint would be an adequate solution. [22-23] Chief Judge Wood then wrote that some – perhaps many – procedural rules existed for substantially important reasons, that withholding required information may be one of them, and that the Court should have heard the case en banc to clarify what constitutes a “bare” procedural violation. [32-25]

Therefore, Casillas’ case was dismissed. As a practical matter, this will render such claims much harder to bring in future. If only plaintiffs who intended (or even attempted) to use one of the procedures have standing to sue, it seems likely that the class of plaintiffs would be much smaller. A smaller class leads to lower damages, which means that fewer lawyers would be willing to take on the case. Additionally, lower damages reduces the incentive for debt collectors to comply with the law, particularly if they are able to collect debts more efficiently (and so make more money) by failing to do so. Of course, an undesirable outcome does not necessarily mean that a decision is wrong.

Gadelhak v. AT&T Services, Inc. (2020)

Ali Gadelhak’s mobile phone number is in the national Do Not Call Registry. Somehow, it also wound up in AT&T’s customer database, although Mr. Gadelhak is not a customer of AT&T. From this database, AT&T sent text messages to its customers. It sent a series of texts asking survey questions to Gadelhak (in Spanish, which he doesn’t speak). Gadelhak sued AT&T under the Telephone Customer Protection Act. [2-3] Judge Edmond Chang rejected Gadelhak’s claim, finding that AT&T’s system did not fit into the statutory definition, although the exact procedural posture is not clear from Judge Barrett’s opinion. [19]

The main question before the Court of Appeals for the 7th Circuit was the interpretation of the statutory phrase “automatic telephone dialing system.” The Telephone Customer Protection Act, which became law in 1991, prohibits the use of such a system to text mobile phones without the user’s permission. 47 U.S.C. § 227(b)(1). Equipment is an “automatic telephone dialing system” under the Act if it has the capacity: “(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C § 227 (a)(1). [2-3] The Court of Appeals therefore had to interpret this definition.

Before reaching the merits, the Court of Appeals addressed standing, although AT&T itself had not argued that Gadelhak lacked standing. The Eleventh Circuit had held that receipt of an unwanted text message was insufficient to confer standing, whereas the Second and Ninth Circuits had held that it was sufficient. [4 and note 2 on page 7] Judge Barrett reasoned that the common law had treated violation of privacy as harmful and that Congress had identified a modern version of this harm. In other words, Congress had created a cause of action that did not exist under common law but that remedied a kind of harm courts had recognised. Judge Barrett held on behalf of the Court of Appeals that Gadelhak, having suffered precisely the legally-cognisable harm that Congress had legislated against, had standing to sue. [5-8]

Judge Barrett then considered four interpretations of the statutory definition in question. First, she considered the definition she found most natural: “to store or produce telephone numbers to be called, using a random or sequential number generator.” That is, the Act prohibits only use of a system able to use a random number generator to either store or produce numbers. Although this interpretation was supported by typical grammar rules, it had two problems. First, a system that generates and immediately calls phone numbers does not ‘store’ numbers except in the most forced sense; at the time of enactment, however, some systems did generate numbers and store them for later use. Second, the word “store” was effectively redundant under this interpretation, because the number would necessarily be produced using a random number generator; Judge Barrett found that this surplusage was undesirable but acceptable. [10-12] This was also how two other courts of appeal had interpreted the statute. [9 and note 3 on the same page]

Second, Judge Barrett considered the interpretation that the modifying clause referred to “phone numbers”: “to store or produce telephone numbers to be called, [generated] using a random or sequential number generator.” [12] This was how the district court had interpreted the statute. [13] Nevertheless, Judge Barrett held that this was an adverbial phrase, which became grammatically acceptable only through the insertion of a word that Congress had not written. Judge Barrett therefore rejected this interpretation. [13]

Gadelhak preferred to argue that the final clause modified only produce, not store: “to store or produce telephone numbers to be called, using a random or sequential number generator.” [13-14] This was the only interpretation under which he could definitely win. It was also how the 9th Circuit had interpreted the statute. [14] Judge Barrett found this impossible to square with the statutory text, which did not separate storing from producing. [14-15] Gadelhak argued that this interpretation was necessitated by the defence that a party had consented to be contacted, which would be effectively impossible if the numbers called were randomly generated, but Judge Barrett thought a system could dial random numbers with pre-programmed exceptions. [15] Judge Barrett also rejected the argument that Congress had approved this interpretation by amending the Act while the FCC espoused it. [15-16] Finally, Judge Barrett pointed out that this would include every text from a smart-phone, because smart-phones have the capacity to store telephone numbers and send automated messages (such as “do not disturb” texts). [16-17]

Finally, Judge Barrett considered the interpretation in which the comma was effectively removed, resulting in the interpretation that “using a random or sequential number generator” modified the immediately proceeding “to be called”. [17] This was very difficult to reconcile with the presence of the comma, although punctuation was not the entirety of legal interpretation and that comma seemed to be wrongly located under any interpretation. [17-18] Documents roughly contemporaneous with the Act suggested that “telephone numbers to be called” was a single unit, which negated the possibility that only “to be called” was modified by the “using” clause. [18-19]

Judge Barrett found the first proposed interpretation the least bad and therefore construed the definition as meeting it. Therefore, an automatic telephone dialing system required the capacity to randomly or sequentially generate numbers, which AT&T’s database lacked. The automated messages sent by AT&T were not prohibited by statute. [19-20]

3 thoughts on “Judge Barrett on Statutory Claims I

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: