If an error is in a credit file and no one is around to see it, does it create standing? No, according to the U.S. Court of Appeals for the Eleventh Circuit, noting a plaintiff “cannot manufacture standing by spending time and money to rectify an otherwise harmless statutory violation,” and ruling a consumer could not litigate claims based on her expenditure of time and money to dispute unpublished errors in her credit file. Although the Eleventh Circuit has previously found standing existed in cases where incorrect information had been published to third parties, it clarified that “self-inflicted harm” incurred by trying to correct unpublished information did not satisfy Article III’s requirements. While the legal road to this conclusion was a fairly long one for a standing issue, the decision provides consumer reporting agencies with a useful argument framework for defeating Fair Credit Reporting Act (“FCRA”) suits at the outset.
What You Need to Know:
- A consumer sued Experian for violating Section 1681i of the FCRA by refusing to conduct a reasonable reinvestigation of her disputed personal information including a misspelled maiden name, two incorrect addresses, and a variation of her Social Security number.
- A district court found the consumer’s out-of-pocket expenses in sending letters asking Experian to correct the errors were sufficient to create standing, but ultimately granted summary judgment to Experian on the merits.
- On appeal, the Eleventh Circuit vacated the judgment and remanded the case, noting that a mere statutory violation does not create an injury-in-fact and that the consumer’s primary theory of harm, spending time and money on dispute letters, failed because the underlying errors were never published and did not cause any actual harm.
- Likewise, an increased risk of identity theft from information that had not been published to third parties was too speculative to support standing.
The Eleventh Circuit’s decision marked the end of a journey that began when Plaintiff, Jessica Nelson, requested a copy of her credit report from Experian. Nelson found four errors: two incorrectly included addresses, an incorrect spelling of her maiden name, and a variation of her social security number. Nelson wrote a letter to Experian asking it to correct the errors, and Experian directed Nelson to contact the parties who furnished the incorrect information to Experian. Instead, Nelson wrote to Experian again. This time, Experian responded with directions to contact the furnishers and corrected some of the entries but did not tell Nelson about the corrections. Nelson then wrote to Experian again requesting that it correct all four pieces of inaccurate information. Nelson’s expenditures for the certified mail correspondence cost about twenty dollars.
The correction campaign did not stop there. Nelson sued Experian in Alabama state court alleging that it violated the FCRA when it failed to “conduct a reasonable reinvestigation” once it was notified of the inaccurate or incomplete information in her file. Experian removed the action to federal court, where the court raised the issue of standing sua sponte when Experian moved for judgment on the pleadings. The district court denied that motion, and concluded that Nelson’s out-of-pocket expenses and time spent in writing to Experian constituted sufficient injury for standing. Eventually, the district court granted summary judgment to Experian, and Nelson appealed.
The crux of the standing issue in Nelson v. Experian Information Solutions Inc., No. 24-10147, 2025 WL 2016752 (11th Cir. July 18, 2025) was whether Nelson suffered a concrete injury. Nelson argued that spending time and money writing to Experian and an increased risk of identity theft as a result of the incorrect information satisfied this requirement. The Eleventh Circuit analyzed both theories in detail and found that neither was sufficient to confer standing.
First, the court observed that a statutory violation is not in itself an injury in fact and that a plaintiff must establish a concrete harm resulting from the statutory violation. The court found Nelson had not, because the only harm arising out of the errors in her credit file – which Experian never published to a third party – was the time and effort Nelson expended in correcting them. This “self-imposed injury” could not support standing and, moreover, permitting plaintiffs to create standing by “spending time and money to rectify an otherwise harmless statutory violation” would run afoul of U.S. Supreme Court holdings in TransUnion v. Ramirez, 594 U.S. 413 (2021); Spokeo, Inc. v. Robins, 578 U.S. 330 (2016); and Clapper v. Amnesty Int'l USA, 568 U.S. 398 (2013) that prohibit plaintiffs from manufacturing standing or lowering the Article III bar by incurring costs in anticipation of non-imminent injury. Rather, an allegation of wasted time and effort can only be considered a concrete harm if the time and effort “responded to something that ‘is itself a concrete harm.’” Here, unpublished inaccuracies did not cause Nelson any real-world injury, so her effort and expenses in correcting the errors did not constitute concrete harm.
Second, the court discussed when a threat of harm can be sufficient to satisfy standing. While in some cases that is possible, a harm must be “certainly impending” or there must be a “substantial risk” of the harm, and a plaintiff must meet a “high standard for the risk-of-harm analysis” which involves “a robust judicial role in assessing th[e] risk.” The court found Nelson did not meet the standard, because the potential harm she feared relied on a speculative chain of possibilities whereby Experian would send incorrect information to a third party, who would then send a credit offer to an incorrect address, and the recipient would obtain her information and steal her identity. Such a scenario was far too hypothetical to be considered an impending or substantial risk, so the court rejected this theory of standing as well.
The FCRA is a consumer protection statute, but a statutory violation, without more, will not confer standing on every consumer in every case. The Eleventh Circuit’s analysis in Nelson provides clear guidance for consumer reporting agencies seeking dismissal of suits based on lack of standing, particularly where a consumer’s time and effort are the alleged injuries. The helpful opinion draws distinctions between scenarios similar to, but not identical to, Nelson’s, so it can be a helpful reference for practitioners fighting FCRA cases or making standing arguments in other statutory contexts. One note of caution, though – because Nelson was decided at the summary judgment stage, the argument for jurisdiction had to be supported with affidavits or evidence, which is not the case in earlier stages of litigation.
