In the

United States Court of Appeals

For the Seventh Circuit ____________________

Nos. 18-3416 & 18-3405

QUENTIN CRABTREE,

Plaintiff-Appellant, Cross-Appellee,

v.

EXPERIAN INFORMATION SOLUTIONS, INC.,

Defendant-Appellee, Cross-Appellant.

____________________

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:16-cv-10706 — Charles R. Norgle, Judge.

____________________

ARGUED SEPTEMBER 4, 2019 — DECIDED JANUARY 28, 2020

____________________

Before ROVNER, SCUDDER, and ST. EVE, Circuit Judges.

SCUDDER, Circuit Judge. We know from the Supreme 

Court’s decision in Spokeo, Inc. v. Robins that a plaintiff claiming a statutory violation must allege a concrete and particularized injury for Article III standing. Recent years have 

shown that this principle is often easier to observe than to apply. The claim in this appeal falls on the easier side. Quentin 

Crabtree filed this suit against Experian for what he contends 

was an unauthorized release of his credit information under 
2 Nos. 18-3416 & 18-3405

the Fair Credit Reporting Act. Experian responded by going 

on the offensive by itself bringing a FCRA counterclaim 

against Crabtree. The district court dismissed Crabtree’s 

claim because any injury was exceedingly remote and speculative. We agree. We further conclude that Experian’s counterclaim likewise fails for lack of standing and therefore affirm across the board. 

I

The Fair Credit Reporting Act or FCRA protects consumers’ privacy in their credit information. It does so in part by 

prohibiting consumer reporting agencies like Experian from 

releasing credit information except under specific circumstances, which Congress enumerated in 15 U.S.C. § 1681b. 

One exception allows consumer reporting agencies to provide 

prospective lenders with a list of consumers who meet their 

criteria. In trade parlance, these lists are called “prescreen 

lists.” The sharing of a prescreen list is allowed if it results in 

a “firm offer of credit or insurance” to every consumer on that 

list. See id. § 1681b(c)(1)(B)(i). In this way, though FCRA 

broadly prohibits the unauthorized disclosure of credit information, Congress authorized the limited disclosure of such 

information in exchange for the benefit of a guaranteed offer 

of credit or insurance. 

Stepping back to see what the lawful exchange of prescreen lists typically looks like aids our analysis. As a consumer reporting agency, Experian compiles consumer information into credit reports and scores. Intermediate entities 

collect this information from Experian and provide tailored 

prescreen lists of consumers to creditors and insurers intending to make firm offers. So long as those creditors and insurers 

ultimately extend a firm offer to each person on the list, the 
Nos. 18-3416 & 18-3405 3

process complies with the privacy trade-off Congress contemplated in passing FCRA. See id. 

At first glance that seems to be what happened when 

Quentin Crabtree’s information appeared on a 2011 prescreen 

list compiled from Experian’s data. But there were some complications, which Crabtree learned of in 2016 and then formed 

the basis of his lawsuit. The full facts are complicated and require unpacking.

Prior to the events in this case, Experian and Western Sierra had a contract that permitted Western Sierra to receive 

prescreen lists from Experian. These were not direct exchanges, however, as both parties used agents. Experian provided its consumer data to a company called Tranzact, which 

used that information to create prescreen lists. For its part, 

Western Sierra did not directly deal with Tranzact; rather, 

Tranzact sold the prescreen lists to a marketing agency called 

Data by IMS. Data by IMS would then extend offers backed 

by Western Sierra to the consumers on the prescreen list. To 

summarize, Experian dealt with Tranzact, Western Sierra 

dealt with Data by IMS, and Tranzact and Data by IMS dealt 

with each other—all in furtherance of Experian’s contract 

with Western Sierra. 

Though Crabtree brought his claim in 2016, the unauthorized exchange underlying his lawsuit took place in 2011. Experian terminated its contract with Western Sierra in October 

and set November 18, 2011 as the cutoff date. At that point, 

Western Sierra was no longer authorized to receive Experian’s 

credit data, including in the form of prescreen lists prepared 

by Tranzact and purchased by Data by IMS. 
4 Nos. 18-3416 & 18-3405

Despite the terminated contract, a prescreen list with Experian’s data made it through the web of credit-related entities to Western Sierra on November 30, 2011. Neither Experian 

nor Western Sierra knew there was any problem. Experian did 

not know that Tranzact had given a list to Data by IMS that 

would be backed by Western Sierra, and Western Sierra believed that Data by IMS had obtained the list from a different 

consumerreporting agency with whom it still had a valid contract. Because of the miscommunication, the prescreen list of 

consumer credit information, which included Crabtree, was

shared when it should not have been. 

But these facts do not necessarily show a FCRA violation. 

Even though Experian’s contract with Western Sierra did not 

authorize the disclosure, there is little indication that Western 

Sierra, believing that everything was in order, failed to extend 

firm offers to everyone on the November 2011 prescreen list. 

What is more, Crabtree himself testified that he was unable to 

say that he did not receive a firm offer from Western Sierra 

and in fact he “probably did” but just does not recall. Crabtree 

went further and admitted that he would not have sought a 

loan in response to any offer of credit. 

These facts nonetheless gave rise to a lawsuit. Crabtree 

filed a complaint against Experian in November 2016—nearly 

five years after Experian shared his credit information with 

Western Sierra. Discovery revealed that Crabtree learned 

about this post-contract disclosure through the person who is 

now his lawyer. The lawyer had recognized Crabtree’s name 

while examining the list and brought it to his attention. It was 

only then that Crabtree was made aware of any of this and 

decided to bring suit in federal court under FCRA. 
Nos. 18-3416 & 18-3405 5

Crabtree alleged that he suffered two harms from his inclusion on the prescreen list: an invasion of privacy and emotional distress. Experian reacted to being sued by lodging a 

counterclaim under FCRA. According to the counterclaim, 

FCRA prohibited Crabtree from receiving a prescreen list for 

any purpose other than extending a firm offer of credit—not 

to support a lawsuit against a consumer reporting agency. 

After extensive and complete jurisdictional discovery on 

whether Crabtree had alleged the requisite injury-in-fact to 

satisfy Article III’s case or controversy requirement, the district court dismissed the complaint for lack of standing pursuant to Federal Rule of Civil Procedure 12(b)(1). It determined that Experian’s alleged statutory violation, without 

further allegations of harm, was insufficient to establish a concrete injury and that Crabtree’s emotional damages were entirely unsupported. The court also dismissed Experian’s 

counterclaim for the same reason and required Crabtree to 

pay for the deposition of Experian’s proffered expert. Both 

sides appealed. 

II

A

Our first question in any case is whether we have jurisdiction. Article III extends the judicial power only to the resolution of cases and controversies. At the very least, this requires 

a plaintiff to have suffered an injury-in-fact traceable to the 

defendant and capable of being redressed through a favorable 

judicial ruling. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–

61 (1992); see also Lopez-Aguilar v. Marion Cty. Sheriff's Dep't, 

924 F.3d 375, 384 (7th Cir. 2019). At the pleading stage, the 
6 Nos. 18-3416 & 18-3405

plaintiff must allege facts that demonstrate each element of 

Article III standing. 

The alleged injury must be “concrete and particularized” 

as well as “actual or imminent, not conjectural or hypothetical” to satisfy Article III standing. Lujan, 504 U.S. at 561. A 

“particularized” injury is one that “affect[s] the plaintiff in a 

personal and individual way.” Id. at 560 n.1. Concreteness 

means that the injury must exist: it must be “real,” not abstract. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016). 

Identifying a violation of a statutory right does not automatically equate to showing injury-in-fact for standing purposes. See id. at 1548. Because the injury-in-fact requirement 

is rooted in Article III, Congress cannot “statutorily grant[] 

the right to sue to a plaintiff who would not otherwise have 

standing.” Id. at 1548–49. While a “bare procedural violation, 

divorced from any concrete injury” may be particularized because it is unique to the individual plaintiff, without more it 

is insufficient to confer standing. Id. at 1549.

These teachings come from the Supreme Court’s 2016 decision in Spokeo, Inc. v. Robins. Like this case, Spokeo concerned 

whether a statutory violation of FCRA satisfied the injury-infact requirement for purposes of Article III standing. See id. at 

1546. Thomas Robins brought a class action against Spokeo, a 

so-called “people search engine,” for failing to comply with 

FCRA’s requirements. Id. Spokeo’s service allowed users to 

search people by name, email address, or phone number and 

in return provided information such as the individual’s “address, phone number, marital status, approximate age, [and] 

occupation[.]” Id. Robins alleged harm based on inaccuracies 

in his information. The inaccuracies amounted to a FCRA violation because Spokeo willfully failed to comply with several 
Nos. 18-3416 & 18-3405 7

of the statute’s requirements, including that consumer reporting agencies “follow reasonable procedures to assure maximum possible accuracy of” consumer reports. Id. at 1545 (citing 15 U.S.C. § 1681e(b)). 

The Supreme Court remanded the case because the appellate court had not adequately considered whether the alleged 

procedural violations “entail[ed] a degree of risk sufficient to 

meet the concreteness requirement.” Id. at 1550. While any 

small error in a consumer report might violate FCRA, the 

Court emphasized that “not all inaccuracies cause harm or 

present any material risk of harm” and therefore not all inaccuracies amount to an injury sufficient to confer Article III 

standing. Id. By way of example, the Court observed that “[i]t 

is difficult to imagine how the dissemination of an incorrect 

zip code, without more, could work any concrete harm.” Id. 

B

In Spokeo’s wake, we like other circuits have considered its 

application to the concrete injury requirement in several consumer protection cases. Three particular decisions stand 

alongside Spokeo itself to frame the proper analysis here.

First, in Gubala v. Time Warner Cable, Inc., Time Warner retained the plaintiff’s information for eight years after he cancelled his cable television subscription but had not given the 

information to anyone else. 846 F.3d 909, 911 (7th Cir. 2017). 

We were willing to assume that Time Warner’s retention of 

the information violated the Cable Communications Policy 

Act, which provides that cable operators must destroy personally identifiable information under such circumstances. Id. 

at 910. But, applying the lessons of Spokeo, we held that the 

mere retention of private consumer information, absent any 
8 Nos. 18-3416 & 18-3405

dissemination, did not constitute a concrete injury for Article 

III standing purposes. Id. at 912. We did not reach the point of 

considering whether the distribution of this type of information would be a privacy injury or otherwise harmful. See 

Meyers v. Nicolet Rest. of De Pere, LLC, 843 F.3d 724, 727 (7th 

Cir. 2016) (holding that even though printing a credit card’s 

expiration date on a receipt violates FCRA, there was no concrete injury because the plaintiff did not suffer any actual 

harm or appreciable risk of identity theft).

Next came Robertson v. Allied Solutions, LLC, where we 

held that a statutory violation that led to the deprivation of an 

opportunity, even if futile as a practical matter, can be enough 

to establish a concrete injury. 902 F.3d 690, 697 (7th Cir. 2018). 

A prospective employer failed to provide the plaintiff with a 

copy of her background report before rescinding her employment offer, which is a violation of FCRA. See id. at 695 (explaining that § 1681b(b)(3)(A) of FCRA requires a person intending to take an adverse action on the basis of a consumer 

report used for employment purposes to provide the consumer with a copy of the report). This allegation sufficed to 

establish an injury-in-fact for pleading purposes. See id. at 

697. The alleged injury was concrete enough because the 

plaintiff as a prospective employee lost the benefit of “her interest in responding” to information in her background report, even if the information was accurate and she would have 

been unable to convince the prospective employer to honor 

the original offer. Id.; but see Rivera v. Allstate Ins. Co., 913 F.3d 

603, 616–17 (7th Cir. 2018) (holding that a violation of 

§ 1681(a)(y)(2) of FCRA, which requires employers to disclose 

a summary of an investigation into employee misconduct after

an adverse action, was not a concrete injury because the disclosure performed a “mere post hoc notice function”).
Nos. 18-3416 & 18-3405 9

More recently, we considered Spokeo’s application in Casillas v. Madison Avenue Associates, 926 F.3d 329 (7th Cir. 2019). 

We again held that a bare statutory violation not affecting the 

plaintiff does not suffice to show the concrete injury required 

for Article III standing. See id. at 334. The Fair Debt Collection 

Practices Act required the debt collector defendants to inform 

consumers that they must respond to collection notices to trigger certain statutory protections. See 15 U.S.C. § 1692g(a). The 

debt collectors did so but failed to state that a consumer’s response had to be in writing to satisfy the statute. See Casillas, 

926 F.3d at 332. The plaintiff, however, had never contemplated responding in any manner and was therefore, as a 

practical matter, unaffected by the insufficient direction provided by the debt collector defendants. See id. at 334. We were 

careful to note that a plaintiff who had verbally responded 

and still lost statutory protections would present a different 

case. See id. On the facts before us, though, it was plain that 

the plaintiff never considered responding in any way to the 

debt collector’s collection notice, and it was that pleading 

shortcoming that showed the absence of any injury-in-fact for 

Article III standing purposes. See id.; see also Groshek v. Time 

Warner Cable, Inc., 865 F.3d 884, 887 (holding there was no concrete injury from Time Warner’s failure to comply with 

FCRA’s requirement that a disclosure be in a standalone document when the plaintiff did not allege that the extraneous 

information caused him any confusion).

To sum up—and emphasizing that we have avoided 

broad holdings and instead focused on the particular facts of 

each case—Robertson v. Allied Solutions provided an example 

of a prospective employee adequately pleading a concrete injury from a statutory violation that had the effect of depriving 

her of the chance to respond to information in a background 
10 Nos. 18-3416 & 18-3405

report that FCRA entitled her to receive. Gubala v. Time 

Warner, on the other hand, showed that a complaint fell short 

on the injury prong by alleging only that a defendant failed to 

comply with its obligation under the Cable Communications 

Policy Act to destroy the plaintiff’s personally identifiable information. And so, too, was it not enough in Casillas v. Madison Avenue Associates for a plaintiff, with no intention of disputing an unpaid debt, to show that the debt collector failed 

to comply with the FDCPA’s requirement of informing a 

debtor that any dispute must be in writing.

C

These principles find a straightforward application on the 

facts before us. The disclosure that Crabtree learned of nearly 

five years after Experian included his name on a prescreen list 

is not a concrete injury. To start with the obvious, Crabtree 

has not plausibly alleged that Experian shared his private 

credit report with a lender not intending to make a firm offer. 

Because of the middlemen inherent in this process, Crabtree’s 

information got to Western Sierra from Experian even though, 

because of their terminated contract, it should not have. By 

Crabtree’s own admissions, however, Western Sierra likely 

did extend him a firm offer of credit after receiving his information from Experian. The contractually unauthorized exchange of information, then, is the type of “bare procedural 

violation” contemplated in Spokeo that, without more, does 

not suffice to establish a concrete injury-in-fact for Article III 

purposes. 136 S. Ct. at 1550. 

To put the same point in statutory terms, the privacy interest in credit information embodied in FCRA was permissibly exchanged for the promise of a firm offer—all of which 

Congress allowed in § 1681b. As Crabtree likely received the 
Nos. 18-3416 & 18-3405 11

exchanged-for benefit—a point he admitted in his deposition 

testimony—any potential injury based on the possibility that 

he did not receive a firm offer is too speculative and remote to 

satisfy Article III’s injury-in-fact requirement.

Even more, Crabtree has identified no harm of any kind. 

Like the plaintiff in Casillas who never attempted to respond 

to the debt collector and therefore was not affected by the incomplete instructions, Crabtree admitted in sworn testimony 

that he would have thrown any firm offer from Western Sierra 

in the trash. Indeed, he only learned about these events after 

being contacted by his lawyer nearly five years later. If this 

communication had not occurred, Crabtree would have gone 

on completely unaware of and unaffected by any prescreen 

list. This all falls well short of the concreteness mandated by 

Article III. Crabtree had to come forward with something 

showing that he did not receive a firm offer, that Western Sierra would not have honored a firm offer, that he was affected 

by the lack of a firm offer, or that he suffered any actual emotional damages. He failed on each possible ground, leaving 

him without the concrete injury necessary for Article III 

standing. 

D

Do not overread our conclusion to mean that a claim like 

Crabtree’s fails as a matter of course. Based on Spokeo’s principles, there is no question that a consumerreporting agency’s 

unauthorized disclosure of consumer credit information can 

be a concrete injury. The common law recognized some right 

to privacy that “encompass[es] the individual’s control of information concerning his or her person.” U.S. Dep’t of Justice 

v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 763 (1989). 

And FCRA specifically articulates a statutory right to privacy 
12 Nos. 18-3416 & 18-3405

in consumer credit reports. See 15 U.S.C. § 1681(a). We have 

previously recognized this right to privacy in such information. See Cole v. U.S. Capital, Inc., 389 F.3d 719, 728 (7th Cir. 

2004) (holding that a plaintiff stated a claim when a lender 

obtained her credit data without giving her the benefit of a 

firm offer, one of the permissible purposes under FCRA). 

The disclosure of consumer credit information, absent any 

exchanged-for consumer benefit contemplated by FCRA, can 

constitute an injury-in-fact for the purpose of Article III standing. The common law history, Congress’s judgment in FCRA, 

and our line of cases all support the conclusion that the injury 

can be sufficiently real. The plaintiff just needs to plead or otherwise come forward with some evidence showing that is 

what happened and thus is the source of the alleged injury 

giving rise to the FCRA claim. The district court was right to 

conclude that Crabtree failed to meet these standards. 

III

A

This brings us to Experian’s counterclaim. Recall that Experian, in response to being sued under FCRA, affirmatively 

invoked the statute to bring a counterclaim against Crabtree. 

It alleged that Crabtree as the plaintiff violated § 1681n(b) by 

himself obtaining a prescreen list to initiate this lawsuit, a 

purpose Experian sees as well outside those enumerated in 

the statute. The district court dismissed the counterclaim on

the basis that Experian lacked standing. More to it, the district 

court found Experian’s allegation of reputational harm speculative, while also concluding that the Supreme Court’s decision in Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 

(1998), precluded the company from pointing to the costs it 
Nos. 18-3416 & 18-3405 13

incurred in defending Crabtree’s lawsuit as an injury for Article III standing. 

We chart a different path of reasoning in reaching the same 

conclusion and start with Experian’s allegation of reputational harm. We agree with the district court that this was not 

a sufficient injury, as it was unsupported by any factual allegations. Experian’s counterclaim points to no definite reasons 

to believe Crabtree’s lawsuit tarnished the company’s goodwill, affected its future business prospects, or lessened its position as one of the nation’s major consumer reporting agencies. It is not enough to say that your reputation was harmed 

without explaining how. See Johnson v. U.S. Office of Pers. 

Mgmt., 783 F.3d 655, 669 (7th Cir. 2015) (holding that “a political figure’s assertion, without more, that the receipt . . . [of] a 

benefit will hurt his or her reputation . . . is insufficient to establish standing”). Experian’s bare counterclaim allegations 

are “conjectural or hypothetical” and therefore are insufficient to confer standing. Lujan, 504 U.S. at 560; see also Diedrich v. Ocwen Loan Servicing, LLC, 839 F.3d 583, 589 (7th Cir. 

2016) (“Legal conclusions or bare and conclusory allegations 

. . . are insufficient to state a claim.”). 

B

As for Experian’s second basis for standing, we see the 

analysis in terms different than those endorsed by the district 

court. The costs to defend a lawsuit can be an injury-in-fact

for purposes of Article III. In the case relied on by the district 

court, Steel Co. v. Citizens for a Better Environment, the Supreme 

Court only addressed whether a plaintiff can satisfy standing 

simply by pointing to the cost of bringing suit. See 523 U.S. at 

107. While that cost may be concrete and particularized, the 

Court held that “[t]he litigation must give the plaintiff some 
14 Nos. 18-3416 & 18-3405

other benefit besides reimbursement of costs that are a byproduct of the litigation itself.” Id. A contrary rule would essentially eliminate the injury and redressability requirements 

of Article III standing. Here, however, Experian alleged that 

the harm is the cost of defending the lawsuit, not bringing it. 

So we cannot conclude that Steel Company resolves the question. 

Experian’s position—that the cost of defending a lawsuit 

is enough for Article III standing—finds some support in our 

court’s Steel Company decision, which we decided on a remand from the Supreme Court. See Citizens for a Better Env’t

v. Steel Co., 230 F.3d 923, 926 (7th Cir. 2000). Even though the 

Supreme Court dismissed the underlying case for lack of jurisdiction, we retained authority on remand to award attorney’s fees to the prevailing party that was “injured in fact to 

the tune of $270,000 and counting.” Id. We explained that the 

law allows “awards of litigation expenses in suits that federal 

courts are not authorized to decide on the merits.” Id. at 927. 

Against this principle, it is hard to say that litigation expenses 

alone cannot be a concrete and particularized injury for the 

purpose of our Article III standing. 

To recognize that Experian has Article III standing to bring 

a counterclaim does not mean the company has a statutory 

right under FCRA to recover its defense costs, however. And 

even if such a right exists, the proper mechanism for relief 

from this type of injury ordinarily is not a counterclaim but 

instead a motion made after the court has entered judgment. 

Even more specifically, Federal Rule of Civil Procedure 54 

provides that a claim for attorney’s fees “must be made by 

motion unless the substantive law requires those fees to be 

proved at trial as an element of damages.” FED. R. CIV. P.
Nos. 18-3416 & 18-3405 15

54(d)(2)(A). This motion must specify “the statute, rule, or 

other grounds entitling the movant to the award.” FED. R. CIV.

P. 54(d)(2)(B)(ii). 

In Citizens for a Better Environment, we held that the defendants had Article III standing to avail themselves of a federal statutory right to recover their defense costs after the Supreme Court dismissed the plaintiff’s Emergency Planning 

and Community Right-to-Know Act claim. See 230 F.3d at 

926. That does not mean, however, that this Article III standing alone was sufficient to bring their lawsuit; it was essential 

to the decision that the relevant statute provided for the recovery of attorney’s fees. See id. at 925 (citing EPCRA’s cause 

of action for litigation costs in 42 U.S.C. § 11046(f)). To recover 

costs, there must be a federal statutory right or some other 

grounds for a defendant to avail on its claim. 

Put more simply, a party injured only by incurring defense costs—while injured for constitutional purposes—must 

find some statutory or common law hook for its motion or 

claim to recover those costs. Determining whether there is a 

cause of action in these circumstances “is a matter of statutory 

meaning, not of the power to adjudicate.” Id. at 928; see also 

Bank of Am. Corp. v. City of Miami, Fla., 137 S. Ct. 1296, 1302 

(2017) (noting that the Supreme Court has cautioned against 

using “prudential standing” to describe the statutory interpretation exercise of discerning a cause of action’s scope under a particular statute). The most obvious basis is a statutory 

right for defense costs, but defendants could also point to a 

common law claim for malicious prosecution. See, e.g., City of 

New Haven v. Reichhart, 748 N.E.2d 374, 378 (Ind. 2001) (listing 

the elements for a malicious prosecution claim under Indiana

law). Absent either of these more straightforward grounds, a 
16 Nos. 18-3416 & 18-3405

defendant whose only injury is defense costs may attempt to 

shoehorn itself into another cause of action. That is what is 

happening here.

C

FCRA does not provide a statutory cause of action to recover defense costs. If it did, this issue would be easy. All we 

would need to do is determine whether Experian satisfied the 

statutory criteria for recovery.

Recognizing this, Experian has nonetheless invoked 

FCRA and tries to fit under a different provision of the statute 

to bring its counterclaim. To do so, though, the law requires 

Experian to show that its claim “fall[s] within the zone of interests protected” by the precise provision of FCRA invoked 

in its counterclaim. Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 126 (2014). The controlling question is 

“whether a legislatively conferred cause of action encompasses a particular plaintiff’s claim.” Id. at 127. To do so we

“apply traditional principles of statutory interpretation.” Id. 

at 128. 

Lexmark itself illustrates the proper approach. The case 

concerned whether Static Control, a maker and seller of components for Lexmark’s cartridges, had standing to sue 

Lexmark for false advertising under the Lanham Act. See id. 

at 120. Static Control invoked § 1125(a) of the statute and alleged that Lexmark misled consumers to believe that they 

were required to return ink cartridges after a single use, as 

opposed to using Static Control’s parts to refurbish the cartridges. See id. at 122–23. Static Control also alleged that 

Lexmark falsely advertised to companies in the toner cartridge manufacturing business by sending letters stating that 
Nos. 18-3416 & 18-3405 17

it was illegal to sell Lexmark cartridges that had been refurbished with Static Control’s parts. See id. This injured Static 

Control by diverting its sales to Lexmark. See id. at 123. 

In order to bring a claim, the Court emphasized that Static 

Control must fall within the zone of interests protected by 

§ 1125(a) of the Lanham Act for false advertising, which authorizes suit by “any person who believes that he or she is 

likely to be damaged by a defendant’s false advertising.” Id. 

at 129 (internal quotations omitted) (citing 15 U.S.C. 

§ 1125(a)). The Court then looked to the Lanham Act’s express 

goals of preventing fraud and protecting persons engaged in 

commerce against unfair competition. See id. at 131. From 

there the Court concluded that a plaintiff bringing a claim under this provision “must allege an injury to a commercial interest in reputation or sales.” Id. at 131–32. For example, “[a] 

consumer who is hoodwinked into purchasing a disappointing product may well have an injury-in-fact cognizable under 

Article III, but . . . cannot invoke the protection of the Lanham 

Act.” Id. at 132. Because the plaintiff in Lexmark was a business 

engaged in commerce whose position had been damaged by 

false advertising, not a “deceived consumer,” there was “no 

doubt” they fell within the statute’s zone of protected interests. Id. at 137. 

D

Determining whether Experian can bring its counterclaim 

requires us to follow Lexmark’s guidance by asking both 

whether the company has Article III standing and, separately,

whether it falls within the zone of interests Congress meant to 

protect in creating a civil cause of action in § 1681b. The first 

question is straightforward. Experian, in defending Crabtree’s claims, has suffered a redressable injury-in-fact that is 
18 Nos. 18-3416 & 18-3405

traceable to Crabtree. If Crabtree had not committed the alleged statutory violation by obtaining the prescreen list, he 

would not have known that Experian disclosed his information to Western Sierra after the termination of their contract. So, the reasoning continues, there would have then been 

no lawsuit and Experian would have saved the time, money, 

and energy it spent defending against Crabtree’s claim.

But we know from Lexmark that identifying an injury is not 

the same as locating a viable statutory cause of action. Experian cannot bring its counterclaim because the FCRA cause 

of action that it invokes does not encompass that claim. Experian brought its counterclaim under FCRA’s provision for 

civil liability for knowing noncompliance, which covers

“[a]ny person who obtains a consumer report from a consumer reporting agency under false pretenses or knowingly 

without a permissible purpose[.]” 15 U.S.C. § 1681n(b). On the 

surface, § 1681n(b) might seem to cover Crabtree’s actions because he obtained the prescreen list through his lawyer for the 

purpose of bringing this lawsuit, which is not a permissible 

purpose. 

But it is not enough to fit literally into the statutorily created cause of action. See Lexmark, 572 U.S. at 129. The zone-ofinterests test requires us to look at FCRA’s purpose to determine Congress’s intended scope. See id. at 131. Congress described that purpose as “requir[ing] that consumer reporting 

agencies adopt reasonable procedures . . . in a manner which 

is fair and equitable to the consumer . . . .” 15 U.S.C. § 1681(b). 

It also explained that “[t]here is a need to insure that consumer reporting agencies exercise their grave responsibilities 

with fairness, impartiality, and a respect for the consumer’s 

right to privacy.” Id. § 1681(a)(4). 
Nos. 18-3416 & 18-3405 19

These statutory provisions make clear that Congress 

passed FCRA to protect consumers’ right to privacy in their 

credit data. The statutory objective was to confer protections 

on consumers, not to arm consumer reporting agencies with 

rights against consumers. It follows, then, that Congress intended to authorize consumers—not consumer reporting 

agencies like Experian—to sue for violations of the Act. There 

is no shortage of litigation under FCRA, yet Experian does not 

point to a single example of FCRA being used offensively by 

a consumer reporting agency against an individual consumer 

in the manner pursued here—to recover defense costs. Nor 

did our research uncover any such case. Adhering to the 

teachings of Lexmark, we cannot conclude that Experian fits 

within the zone of interests protected by FCRA and it therefore does not have a cause of action under § 1681n(b).

IV

We close by considering Crabtree’s challenge to the district court’s order requiring him to pay for the deposition of 

Experian’s expert. He sees the order as an abuse of discretion 

because the court did not first perform its gatekeeping role of 

determining that the expert’s proffered testimony would be 

admissible at trial under the standards embodied in Federal 

Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). 

We find no abuse of discretion in this award. See Schrott v. 

Bristol–Myers Squibb Co., 403 F.3d 940, 943 (7th Cir. 2005). Federal Rule of Civil Procedure 26(b)(4)(E) requires “the party 

seeking discovery” to pay the expert a reasonable fee 

“[u]nless manifest injustice would result.” Halasa v. ITT Educ.

Servs., Inc., 690 F.3d 844, 851 (7th Cir. 2012). Manifest injustice 

is a high standard that is satisfied only in extraordinary 
20 Nos. 18-3416 & 18-3405

circumstances. See Se-Kure Controls, Inc. v. Vanguard Products 

Group, 873 F. Supp. 2d 939, 957 (N.D. Ill. 2012) (collecting examples of manifest injustice such as where a party made misrepresentations of its expert’s opinions). Nothing in the record suggests that “manifest injustice” resulted from requiring 

Crabtree to pay the expert fee. The expert’s fee, which the district court reduced, was also reasonable. 

Crabtree also misses the mark in contending that the district court had to rule on his Daubert motion to exclude Experian’s expert testimony before considering Experian’s application for costs under Rule 26(b)(4)(E). Not so. The Rule applies to any “expert whose opinions may be presented at 

trial.” FED. R. CIV. P. 26(b)(4)(A) (emphasis added). The clear 

import of Rule 26 is that the district court generally must order a party to pay for the cost of deposing its adversary’s expert regardless of whether the expert’s opinion ultimately is 

presented at trial. Had the claim gone to trial, Experian’s expert may have testified and the award of fees was therefore 

appropriate. 

For these reasons, we AFFIRM.