Michael Dreher v. Experian Information Solutions
PUBLISHED AUTHORED OPINION filed. Originating case number: 3:11-cv-00624-JAG. . [15-2119]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MICHAEL T. DREHER,
Plaintiff - Appellee,
EXPERIAN INFORMATION SOLUTIONS, INC.,
Defendant – Appellant,
EQUIFAX, INC.; TRANS UNION, LLC; EQUIFAX INFORMATION
SERVICES, LLC; CARDWORKS, INC.; CARDWORKS SERVICING, LLC,
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. John A. Gibney, Jr., District Judge. (3:11-cv-00624-JAG)
Argued: March 21, 2017
Decided: May 11, 2017
Before KING, SHEDD, and THACKER, Circuit Judges.
Vacated and remanded by published opinion. Judge Thacker wrote the opinion, in which
Judge King and Judge Shedd joined.
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ARGUED: Meir Feder, JONES DAY, New York, New York, for Appellant. Deepak
Gupta, GUPTA WESSLER PLLC, Washington, D.C., for Appellee. ON BRIEF: Daniel
J. McLoon, JONES DAY, Los Angeles, California, for Appellant. Jonathan E. Taylor,
Richard J. Rubin, GUPTA WESSLER PLLC, Washington, D.C.; Leonard A. Bennett,
Matthew J. Erausquin, Susan M. Rotkis, CONSUMER LITIGATION ASSOCIATES,
P.C., Newport News, Virginia; Kristi Cahoon Kelly, Andrew Guzzo, KELLY &
CRANDALL, PLC, Fairfax, Virginia, for Appellee.
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THACKER, Circuit Judge:
This appeal is from a $11,747,510 judgment in an approximately 69,000 member
class action. We consider whether the decision of Experian Information Solutions, Inc.
(“Experian”) to list a defunct credit card company, rather than the name of its servicer, as
a “source of . . . information” on an individual’s credit report -- without more -- creates
sufficient injury in fact under the Fair Credit Reporting Act (“FCRA”) for purposes of
Article III standing. 15 U.S.C. § 1681g(a)(2).
We conclude that where an individual fails to allege a concrete injury stemming
from allegedly incomplete or incorrect information listed on a credit report, he or she
cannot satisfy the threshold requirements of constitutional standing. Here, we discern no
concrete injury on behalf of the named plaintiff. Therefore, we vacate and remand with
instructions that the case be dismissed.
In 2010, Michael Dreher was undergoing a background check for a security
clearance when the federal government discovered he was associated with a delinquent
credit card account. Dreher’s cousin had taken out the credit card in Dreher’s name to
cover expenses for a failing bowling alley. 1 To clear up the matter, Dreher requested
credit reports from three credit agencies, including Experian. Dreher received a series of
Experian credit reports, which listed a delinquent account under the names “Advanta
The parties dispute whether Dreher knew about the card.
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Bank” or “Advanta Credit Cards” (collectively, “Advanta”) and provided Pennsylvania
and New York P.O. Box addresses. J.A. 160, 168. 2
Thereafter, in early 2011, Dreher sent letters to Advanta. First, in March 2011, he
“requested some verification that [he] owed this debt,” and receiving no response, he sent
another letter on April 15, 2011, which was similar in content. J.A. 155. Dreher then
received a response on Advanta letterhead dated April 18, 2011, with a March 2011
statement showing an outstanding balance of $15,746.94, along with the online credit
card application bearing Dreher’s name and social security number. On May 23, 2011,
Dreher sent a follow-up correspondence “instructing [Advanta] to delete the inaccurate
information from [his] credit files.” Id. Again receiving no response, he “lost hope that
Advanta . . . would fix their mistake.” Id. He contacted Experian directly about the
issue, but still his credit report listed the delinquent Advanta account. According to
Dreher, this process caused “additional stress and wasted hours of [his] time.” Id. at 156.
It did not, however, affect his security clearance; in fact, based on Dreher’s representation
that he was paying down the balance, the government approved his clearance, which took
a total of eight days to process. The Advanta account was finally “deleted from Dreher’s
credit file” on June 6, 2012. Stipulation at 3, Dreher v. Experian Infos. Sols., No. 3:11cv-624 (E.D. Va. filed Nov. 6, 2015), ECF No. 411.
Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this
appeal. A June 21, 2011 credit report also contained a phone number. See J.A. 168. It is
unclear whether Dreher attempted to call this number.
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Unbeknownst to Dreher, in early 2010, the Utah Department of Financial
Institutions had closed Advanta, which had failed to withstand the 2008 financial crisis,
and named the Federal Deposit Insurance Corporation (“FDIC”) as receiver. Deutsche
Bank Trust Company (“Deutsche Bank”) received a security interest in Advanta
receivables and appointed CardWorks, Inc., and CardWorks Servicing LLC (collectively,
“CardWorks”) as servicer of Advanta’s portfolio, effective August 1, 2010. This meant
that CardWorks would “respond to credit card customer complaints and effect
compromises and settlements of ongoing credit card customer disputes.” J.A. 346. In its
capacity as Advanta’s servicer, CardWorks decided to do business using the Advanta
name, the phone number Advanta used prior to August 2010, and the Advanta website,
with the goal of “mak[ing] the servicing transfer seem as innocuous as possible.” Id.
CardWorks then had to decide how to list Advanta accounts, or tradelines, 3 on
consumer credit reports.
On October 4, 2010, Tom Wineland, a post-closing asset
manager for the FDIC, signed a letter to Experian agreeing that the tradeline appearing
for all Advanta accounts on Experian credit reports should bear the Advanta name.
Authorized representatives from CardWorks and the former Advanta Bank also signed
the letter. Wineland explained that he agreed to using the Advanta moniker because the
A tradeline is an account entry on a credit report and, in addition to the name and
address of the creditor, typically includes information like the “account type, opening
date of account, credit limit, account status, and payment history.” Trans Union Corp. v.
Fed. Trade Comm’n, 245 F.3d 809, 812 (D.C. Cir. 2001).
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successor creditor of the Advanta accounts, Deutsche Bank, remained the same after
Advanta was placed in receivership; in addition, “Advanta Credit Cards” “was the name
least confusing to cardholders who (a) might not recognize the new servicer of their
credit accounts represented in the tradelines, and (b) . . . would continue to access their
accounts and make payments at the [Advanta] website.” J.A. 344. Using the name of the
initial creditor also comported with Experian’s “common practice to utilize an associated
subscriber name that will assist consumers to recognize the accounts and enable
consumers to correct any inaccuracies or lodge disputes if necessary.” Id. at 354.
On September 21, 2011, Dreher individually sued Experian and CardWorks in the
Eastern District of Virginia. 4 He later amended his complaint to assert three class claims
and seven individual claims on the basis that, inter alia, Experian willfully violated the
FCRA by failing to include the name “CardWorks” in the Advanta tradelines on its credit
reports. On October 5, 2012, Experian moved for partial summary judgment on Dreher’s
class claims, arguing that Dreher did not produce evidence of willfulness as required
under the FCRA. On May 30, 2013, the district court denied the motion. It later certified
the class to include
Dreher resolved all claims against CardWorks, and it was dismissed as a
defendant on November 1, 2012.
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[a]ll natural persons who: (1) requested a copy of their
consumer disclosure from Experian on or after August 1,
2010; (2) received a document in response that identified
“Advanta Bank” or “Advanta Credit Cards” as the only
source of the information for the tradeline; (3) and whose
“date of status” or “last reported” field reflected a date of
August 2010 or later.
On July 3, 2014, Experian filed a petition for permission to bring an
interlocutory appeal on the certification issue, which this court denied.
Experian Info. Sols., No. 14-325 (4th Cir. filed Sept. 2, 2014), ECF No. 16.
The parties then filed cross-motions for partial summary judgment on October 31,
2014, wherein Experian argued that Dreher and the class members lacked Article III
standing, and Dreher argued Experian willfully violated the FCRA. The district court
granted Dreher’s motion, concluding as a matter of law that “Experian committed a
willful violation of the [FCRA],” J.A. 407, because “[n]o jury could find Experian’s
intentional omission of CardWorks was objectively reasonable,” id. at 404. In turn, it
denied Experian’s motion, reasoning that the FCRA “creates a statutory right to receive
the ‘sources of information’ for one’s credit report,” and when a credit reporting agency
fails to disclose those sources, “it violates that right, thus creating a sufficient injury-infact for constitutional standing.” Id. at 390. The district court did not analyze whether
the injury was specific and concrete. Instead, it concluded that any violation of the
statute sufficed to create an Article III injury in fact. However, the district court also
recognized “this Order involves a controlling question of law as to which there is
substantial ground for difference of opinion [and] an immediate appeal . . . would
materially advance the ultimate termination of the litigation.” Id. at 407-08. Experian
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again attempted to lodge an interlocutory appeal with this court, to no avail. See Order,
Experian Info. Sols. v. Dreher, No. 14-491 (4th Cir. filed Jan. 29, 2015), ECF No. 22.
In February 2015, the district court severed the class claim 5 from the individual
claims for separate jury trials. Rather than hold a jury trial on statutory and punitive
damages on the class claim (Dreher did not seek actual damages), the parties stipulated to
an award of $170 in statutory damages for each class member and no punitive damages.
On August 26, 2015, the district court entered final judgment on behalf of Dreher and the
class in the amount of $170 per class member, totaling over $11.7 million. 6 Experian
timely noted this appeal, and we held the case in abeyance pending the United States
Supreme Court’s decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), which was
decided in May of 2016.
We review a district court’s grant of summary judgment de novo. “In doing so,
we apply the same legal standards as the district court, and view all facts in the light most
favorable to the nonmoving party.” Roland v. United States Citizenship & Immigration
Servs., 850 F.3d 625, 628 (4th Cir. 2017) (internal quotation marks omitted).
By this time, Dreher had dropped two of his class claims, leaving only one.
The district court entered judgment on Dreher’s individual claims on November
12, 2015, after Experian made -- and Dreher accepted -- an offer of judgment of $65,000
pursuant to Federal Rule of Civil Procedure 68. Experian does not challenge any ruling
with respect to the individual claims in this appeal.
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likewise review legal questions regarding standing de novo. See David v. Alphin, 704
F.3d 327, 333 (4th Cir. 2013).
The standing requirement stems from Article III, section 2 of the United States
Constitution, which provides that the “judicial Power shall extend to all Cases [and]
Controversies.” U.S. Const. art. III, § 2, cl. 1. Indeed, “no principle is more fundamental
to the judiciary’s proper role in our system of government than the constitutional
limitation of federal-court jurisdiction to actual cases or controversies.” Spokeo, Inc. v.
Robins, 136 S. Ct. 1540, 1547 (2016) (alteration omitted) (quoting Raines v. Byrd, 521
U.S. 811, 818 (1997)). The law of standing “serves to prevent the judicial process from
being used to usurp the powers of the political branches, and confines the federal courts
to a properly judicial role.”
Id. (alterations, citations, and internal quotation marks
Standing “is a threshold jurisdictional question” that ensures a suit is
“appropriate for the exercise of the [federal] courts’ judicial powers.” Pye v. United
States, 269 F.3d 459, 466 (4th Cir. 2001) (citing Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 102 (1998)).
In a class action matter, “we analyze standing based on the allegations of
personal injury made by the named plaintiff. ‘Without a sufficient allegation of harm to
the named plaintiff in particular, [he] cannot meet [his] burden of establishing standing.’”
Beck v. McDonald, 848 F.3d 262, 269–70 (4th Cir. 2017) (citation omitted) (quoting Doe
v. Obama, 631 F.3d 157, 160 (4th Cir. 2011)); see also Simon v. E. Ky. Welfare Rights
Org., 426 U.S. 26, 40 n.20 (1976) (citing Warth v. Seldin, 422 U.S. 490, 502 (1975)). In
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order to determine whether Dreher, the named plaintiff here, has standing -- that is,
whether he meets the “irreducible constitutional minimum” of a “case” or
“controversy” -- we employ a familiar three-part test. Lujan v. Defs. of Wildlife, 504
U.S. 555, 560 (1992). Dreher “must have (1) suffered an injury in fact, (2) that is fairly
traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed
by a favorable judicial decision.” Spokeo, 136 S. Ct. at 1547 (citing Lujan, 504 U.S. at
560–61). The burden of establishing these elements falls on the party invoking federal
jurisdiction, and all three elements are necessary prerequisites to establish standing. See
id. Here, Appellant stumbles on the first of these requirements: injury in fact.
To establish injury in fact, “a plaintiff must show that he or she suffered ‘an
invasion of a legally protected interest’ that is ‘concrete and particularized.’” Spokeo,
136 S. Ct. at 1548 (quoting Lujan, 504 U.S. at 560). In Spokeo, the Supreme Court
discussed the dual requirements of particularization and concreteness.
plaintiff, Thomas Robins, sued Spokeo, Inc. (“Spokeo”), a company that operates an
online “people search engine,” for alleged violations of the FCRA. Id. at 1544. Robins
alleged that Spokeo collected incorrect information about him and disseminated it on its
website. The district court dismissed the complaint for lack of standing, and the Ninth
Circuit reversed, reinstating the claim. See id.
The Supreme Court vacated the Ninth Circuit’s decision because that court “failed
to fully appreciate the distinction between concreteness and particularization.” Spokeo,
136 S. Ct. at 1550. The Court found that in analyzing the “particular and concrete”
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aspect of the standing requirement, the Ninth Circuit “elided” the “independent
requirement” of concreteness. Id. at 1548. Rather, the Ninth Circuit decided Robins
alleged a concrete injury for two reasons that bear on particularization: (1) he alleged that
Spokeo “violated his statutory rights, not just the statutory rights of other people”; and (2)
his “personal interests in the handling of his credit information are individualized rather
Id. (internal quotation marks omitted) (emphases in original).
Therefore, the Court remanded for a proper consideration of the concreteness inquiry.
See id. at 1550.
Although the Court declined to decide whether Robins’s complaint alleged a
sufficiently concrete injury, it did give direction upon remand, explaining that
concreteness “is quite different from particularization.” Spokeo, 136 S. Ct. at 1548. A
concrete injury is “de facto,” meaning that “it must actually exist” and is “real, and not
abstract.” Id. (internal quotation marks omitted). Concreteness, however, “is not . . .
necessarily synonymous with ‘tangible.’” Id. at 1549. “Although tangible injuries are
perhaps easier to recognize, . . . intangible injuries can nevertheless be concrete.” Id.
(citing Pleasant Grove City v. Summum, 555 U.S. 460 (2009) (free speech); Church of
Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993) (free exercise)). In order to
decide whether an intangible harm constitutes an injury in fact, “history and the judgment
of Congress play important roles.” Id. However, a plaintiff cannot automatically satisfy
the injury in fact requirement just because “a statute grants a person a statutory right and
purports to authorize that person to sue to vindicate that right.” Id. One cannot “allege a
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bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact
As an example, discussing the FCRA specifically, the Spokeo Court explained “[a]
violation of one of the FCRA’s procedural requirements may result in no harm”:
[E]ven if a consumer reporting agency fails to provide the
required notice to a user of the agency’s consumer
information, that information regardless may be entirely
accurate. In addition, not all inaccuracies cause harm or
present any material risk of harm. An example that comes
readily to mind is an incorrect zip code. It is difficult to
imagine how the dissemination of an incorrect zip code,
without more, could work any concrete harm.
Id. at 1550 (footnote omitted). Thus, the Court noted that a technical violation of the
FCRA may not rise to the level of an injury in fact for constitutional purposes.
We now turn to the standing argument in this appeal. The FCRA provision at
issue states that a consumer reporting agency (“CRA”) 7 “shall, upon request . . . clearly
and accurately disclose to the consumer . . . [t]he sources of the information [in the
consumer’s file at the time of the request].”
15 U.S.C. § 1681g(a)(2) (emphasis
supplied). Dreher alleged that Experian violated this provision because it “fail[ed] to
clearly and accurately disclose the source of the Advanta Bank tradeline reporting,”
which he claims is CardWorks. J.A. 49 (emphasis supplied). Thus, Dreher claims he
suffered a cognizable “informational injury” because he was denied “specific information
The parties do not dispute Experian’s status as a consumer reporting agency. See
15 U.S.C. § 1681a(f).
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to which [he] w[as] entitled under the FCRA.” Appellees’ Br. 16–17 (internal quotation
marks omitted). Even assuming arguendo CardWorks was a “source” as contemplated
by § 1681g(a)(2) and, therefore, a statutory violation occurred particularized to Dreher,
his complaint nonetheless fails to demonstrate a concrete injury.
An “informational injury” is a type of intangible injury that can constitute an
Article III injury in fact. Fed. Election Comm’n v. Akins, 524 U.S. 11, 24 (1998); see
also Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 449 (1989). However, a
statutory violation alone does not create a concrete informational injury sufficient to
support standing. See Spokeo, 136 S. Ct. at 1549. Rather, a constitutionally cognizable
informational injury requires that a person lack access to information to which he is
legally entitled and that the denial of that information creates a “real” harm with an
adverse effect. Spokeo, 136 S. Ct. at 1548 (internal quotation marks omitted); see also
Akins, 524 U.S. at 21 (“The ‘injury in fact’ that respondents have suffered consists of
their inability to obtain information . . . that . . . [a] statute requires [to be] ma[d]e public”
where that information “would help them . . . evaluate candidates for public office.”).
To determine whether a party has suffered such a harm, courts look to a variety of
sources, including whether injuries are of the type that have “traditionally been regarded
as providing a basis for a lawsuit in English or American courts.” Spokeo, 136 S. Ct. at
1549. Dreher does not propose a common law analogue for his alleged FCRA injury, and
we find no traditional right of action that is comparable. The lack of a common law
analogue is not fatal to his case, see Pub. Citizen, 491 U.S. at 449 (finding a “sufficiently
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discrete injury” without finding that a similar right existed at common law), but it also
does not help him establish a concrete injury, cf. Vt. Agency of Nat. Res. v. U.S. ex rel.
Stevens, 529 U.S. 765, 774 (2000) (in concluding the government suffered an injury in a
qui tam suit, looking to the “long tradition of [such] actions in England and the American
Colonies” as being constitutionally “amenable to . . . the judicial process” (internal
quotation marks omitted)).
Spokeo also states, “Congress is well positioned to identify intangible harms that
meet minimum Article III requirements.” Spokeo, 136 S. Ct. at 1549. Therefore, “its
judgment is . . . instructive and important.” Id. Our sister circuit has recently reasoned
that a plaintiff suffers a concrete informational injury where he is denied access to
information required to be disclosed by statute, and he “suffers, by being denied access to
that information, the type of harm Congress sought to prevent by requiring disclosure.”
Friends of Animals v. Jewell, 828 F.3d 989, 992 (D.C. Cir. 2016) (emphasis supplied).
We find this reasoning persuasive. To be sure, it would be an end-run around the
qualifications for constitutional standing if any nebulous frustration resulting from a
statutory violation would suffice as an informational injury.
In enacting the FCRA, Congress sought “to ensure fair and accurate credit
reporting, promote efficiency in the banking system, and protect consumer privacy.”
Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 52 (2007). But Dreher has failed to show
how the knowledge that he was corresponding with a CardWorks employee, rather than
an Advanta employee, would have made any difference at all in the “fair[ness] or
accura[cy]” of his credit report, or that it would have made the credit resolution process
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more efficient. Id.; see also 15 U.S.C. § 1681(a)(1). He claims there is a value in
“knowing who it is you’re dealing with,” and if a company can “hide who [they] are,
[they]’re not concerned about consumer goodwill.”
Oral Argument at 24:41-24:48,
Dreher v. Experian Info. Sols., No. 15-2119 (4th Cir. argued March 21, 2017), available
arguments are chiefly customer service complaints, as the district court itself recognized.
See J.A. 331 n.6 (“[W]hen a consumer called Advanta with a question about her bill, she
actually spoke to someone from Cardworks without even knowing the person on the
phone was not with Advanta. In practical outcome, it is no different from any consumer
calling her bank.”). Thus, the harm Dreher alleges he suffered is not the type of harm
Congress sought to prevent when it enacted the FCRA.
Failing to identify either a common law analogue or a harm Congress sought to
prevent, Dreher is left with a statutory violation divorced from any real world effect. As
Spokeo demonstrated, a statutory violation absent a concrete and adverse effect does not
confer standing. In fact, this case is markedly similar to the Spokeo examples. See 136
S. Ct. at 1550. Like the user notice example, Dreher has not shown that dealing with
representatives working for CardWorks rather than Advanta slowed down the process of
obtaining a more accurate credit report. Writing to the P.O. Box addresses was an
accurate way to lodge consumer inquiries about Advanta accounts, and Dreher has not
shown that he was prevented in any way from reaching customer service representatives
to discuss his report. And like the zip code example, Experian’s listing of Advanta
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instead of CardWorks had no practical effect on Dreher’s receipt of the information he
needed to clear the report of the Advanta account. Moreover, to the extent Dreher claims
the delinquent Advanta account “threatened his security clearance,” Appellee’s Br. 1, in
actuality, the account had no legitimate effect on the background check process. Thus,
receiving a creditor’s name rather than a servicer’s name -- without hindering the
accuracy of the report or efficiency of the credit report resolution process -- worked no
real world harm on Dreher.
Moreover, the cases on which Dreher relies are inapposite because both cases
involved the deprivation of information that adversely affected the plaintiffs’ conduct. In
Public Citizen v. U.S. Department of Justice, the Department of Justice denied non-profit
groups Public Citizen and the Washington Legal Foundation names of candidates for
federal judicial appointment under consideration by the American Bar Association
(“ABA”)’s standing committee on the federal judiciary, as well as access to ABA
meetings and records regarding the same. See 491 U.S. at 447–48. The Supreme Court
concluded the non-profits had suffered a concrete injury for standing purposes because
providing the groups the information would have allowed them to “participate more
effectively in the judicial selection process.” Id. at 449. Dreher also relies on Federal
Election Commission v. Akins, wherein a group of voters sought to challenge the Federal
Election Commission’s decision that the American Israeli Public Affairs Committee was
not a “political committee” and therefore did not have to disclose its membership,
contributions, or expenditures. 524 U.S. at 13–14. The Supreme Court held that the
voters had alleged a concrete injury because the information they sought “would help
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them . . . to evaluate candidates for public office.” Id. at 21. Thus, the Court focused on
the type of concrete harm Congress intended to protect in the Federal Election Campaign
Act -- deprivation of information about candidates for public office -- which is “directly
related to voting, the most basic of political rights.” Id. at 24–25.
Here, however, Dreher has failed to demonstrate how viewing the name
“Advanta” rather than “CardWorks” adversely affected his conduct in any way. He was
still able to receive a fair and accurate credit report, obtain the information he needed to
cure his credit issues, and ultimately resolve those issues. If anything, the record shows
that listing the Advanta name may actually assist an alleged identity theft victim like
Dreher. A seasoned former associate director of the Federal Trade Commission, Joel
[I]n cases of identity theft . . . the name of the creditor is
likely to be more useful than the name of the servicer. While
the consumer may not recognize either as a company with
which it has done business, the name of the creditor in many
cases is likely to be at least generally familiar, making it
easier for the consumer to ascertain whether s/he has an
account with that creditor. The name of the servicer, on the
other hand, is unlikely to be recognizable at all.
J.A. 362–63. Winston also stated, “In my experience, it is common for CRAs to identify
the creditor as the source of the information, rather than the servicer, because this
designation is likely to be more useful to consumers.” Id. at 366.
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Therefore, we readily hold that Dreher was not adversely affected by the alleged
error on his credit report. He suffered no real harm, let alone the harm Congress sought
to prevent in enacting the FCRA.
Because Dreher has failed to demonstrate he has suffered a concrete injury
sufficient to satisfy Article III standing, the district court’s judgment is vacated, and this
class action must be dismissed on jurisdictional grounds. We do not address the district
court’s decision on the merits. After all, “[w]ithout jurisdiction the court cannot proceed
at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist,
the only function remaining to the court is that of announcing the fact and dismissing the
cause.” Steel Co., 523 U.S. at 94 (quoting Ex parte McCardle, 7 Wall. 506, 514 (1868)).
For the foregoing reasons, we vacate the district court’s judgment and remand
with instructions to dismiss this case.
VACATED AND REMANDED
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