In May 2016, the U.S. Supreme Court ruled on whether the Fair Credit Reporting Act ("FCRA") created a right confering Article III standing for plaintiffs in consumer litigation. The decision, Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016), now known simply as "Spokeo" – which was widely interpreted to raise the bar on standing – has also become a tool for plaintiffs seeking to allege Article III injury on the basis of statutory violations.

On April 20, 2017, the United States Court of Appeals for the Sixth Circuit joined several other federal courts of appeal in clarifying what constitutes concrete harm as a result of a state procedural violation. In Lyshe v. Yale R. Levy, et al., Appellees brought a collection action against consumer, Lyshe. Soon after bringing the action, Appellees served Lysche with discovery requests. In doing so, Appellees provided mistaken statements associated with their discovery requests. Upon receipt of the discovery requests, Lyshe brought suit against Appellees, claiming Appellees violated the Fair Debt Collection Practices Act ("FDCPA") by violating the Ohio Rules of Civil Procedure as to discovery. Lyshe contended state discovery procedure errors created a cognizable intangible injury under the FDCPA. The Court disagreed.

The Sixth Circuit held that Spokeo does not eliminate the requirement that a plaintiff actually suffer harm that is concrete, and the consumer's type of harm was not concrete. The Sixth Circuit cited Spokeo, in stating that "bare procedural violation[s]," like the violation alleged by Appellant, could not satisfy the injury-in-fact requirement if it is "divorced from any concrete harm." Lyshe did not suffer the concrete harm he alleged, when Appellees made misstatements in their discovery requests about state procedural rules. The procedural violation alleged by the consumer – a violation of state law procedure not required under the FDCPA – is not type of harm contemplated by Spokeo.

The Sixth Circuit clarified that Spokeo dealt with the failure to comply with a statutory procedure that was designed to protect against the harm the statute was enacted to prevent. The Sixth Circuit further explained that the intent of the FDCPA is to eliminate abusive debt collection practices, not potential discovery issues. A statutory violation in and of itself is insufficient to establish standing. Notably, the Sixth Circuit made a point to explicitly decline to follow Church v. Accretive Health, Inc., 654 F. App'x 990 (11th Cir. 2016) ("Church"), a case commonly cited by plaintiffs for use in establishing standing. The reason being that Church is an unpublished decision, which was rejected months later by the Eleventh Circuit, in Nicklaw v. Citimortgage, Inc., 839 F.3d 998 (11th Cir. 2016) (emphasizing that standing is not met simply because a statute creates a legal obligation and allows a private right of action for failing to fulfill this obligation). Thus, Lyshe's "bald allegations" of state procedural violations were insufficient to confer standing as they were not a concrete harm.