Wiener v. MIB Group, Inc.

          United States Court of Appeals
                     For the First Circuit


No. 22-1907

                         MALCOLM WIENER,

                      Plaintiff, Appellant,

                               v.

               MIB GROUP, INC. and JONATHAN SAGER,

                     Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. William G. Young, U.S. District Judge]


                             Before

                 Rikelman, Lipez, and Thompson,
                         Circuit Judges.


     David G. Webbert, with whom Johnson & Webbert, LLP, Megan C.
Deluhery, Todd & Weld LLP, and Carolyn T. Seely were on brief, for
appellant.

     Todd P. Stelter, with whom Marissa I. Delinks and Hinshaw &
Culbertson LLP were on brief, for appellees.


                        November 9, 2023
          RIKELMAN, Circuit Judge.          Several years ago, Malcolm

Wiener sued his former life insurance company for negligence.        He

claims that the defendants here tried to torpedo that lawsuit, to

which they were not parties, by illegally disclosing to his former

insurer confidential information protected by a federal statute.

This case presents one question: Does Wiener have Article III

standing to sue the defendants in this case based on the additional

attorney's fees and costs he incurred to respond to their actions

in that separate lawsuit?         Because a past, out-of-pocket loss is

a quintessential basis for Article III standing, we conclude the

answer is yes.   Therefore, we reverse the district court's order

dismissing this case at the pleading stage for lack of standing.

                             I.     BACKGROUND

                        A.        Relevant Facts1

          MIB Group, Inc. is an information clearinghouse and is

owned by its member life and health insurance companies.         For a

number of years, Jonathan Sager was its Executive Vice President

and General Counsel.2




     1 We draw the relevant facts from Wiener's amended complaint.
See Webb v. Injured Workers Pharmacy, LLC, 

 (1st
Cir. 2023).

     2 For the purposes of this opinion, and as we will discuss
later, we assume that MIB Group, Inc. is a "consumer reporting
agency" subject to the Fair Credit Reporting Act. We also assume
that Sager was one of MIB's agents such that it could be held
liable for his actions challenged in the amended complaint.


                                    - 2 -
          MIB's     services   enable   its   members    to    evaluate   "an

individual's risk and eligibility during the underwriting of life,

health, disability income, critical illness, and long-term care

insurances policies."    For example, MIB collects information about

a life-insurance applicant's medical conditions from its members

and "makes this information available to member[s] . . . who

receive an authorized release" from the applicant.                  It also

collects information about "which member companies have reviewed

or queried an MIB file on a particular individual."             For privacy

reasons, the medical information in an individual's MIB file "is

catalogued using proprietary 'codes'" selected by the reporting

member   company.      Other   member     companies     with   an   executed

authorization may view the MIB codes assigned to a particular

individual, which member company supplied the codes, and whether

(and, if so, which) member companies have "formally queried the

file" or "made less formal reviews."

          As of June 2020, MIB had 390 members that "represent[ed]

90-95% of all individual life insurance application activity in

the United States."      One of its members was AXA Equitable Life

Insurance Company ("AXA").

          In the late 1980s, Wiener purchased three universal life

insurance policies from AXA for a total value of $16 million.             In

2013, following a "payment error or oversight," AXA terminated

these policies and sent Wiener an application for reinstatement.


                                  - 3 -
At AXA's request, Wiener submitted certain medical information to

provide "a preliminary indication" of his insurability.                    But AXA

denied Wiener's application after evaluating information from one

of   his   physicians,   an   evaluation       he   later   learned    had    been

performed by AXA "falsely and negligently."             AXA then reported to

MIB certain codes that identified four serious medical conditions,

which Wiener did not actually have, as the basis for its decision

not to reinstate his policies.             The false report rendered Wiener

effectively uninsurable "at the appropriate rate for his true

health status."

            In January 2018, Wiener sued AXA in North Carolina state

court, and AXA promptly removed the case to federal court on the

basis of diversity jurisdiction.              See generally Wiener v. AXA

Equitable Life Ins. Co., No. 3:18-cv-00106 (W.D.N.C.) (the "North

Carolina Litigation").3       In the North Carolina Litigation, Wiener

alleged that AXA negligently "reported false conclusions about his

medical    conditions    to   .   .    .    MIB,    causing   him     to    become

uninsurable."     Wiener v. AXA Equitable Life Ins. Co., 58 F.4th




      3The parties agree that we may take judicial notice of the
public filings in the North Carolina Litigation as part of our
analysis of Wiener's amended complaint in this case.       They are
correct. See Rodi v. S. New Eng. Sch. of L., 

 (1st
Cir. 2004) ("It is well-accepted that federal courts may take
judicial notice of proceedings in other courts if those proceedings
have relevance to the matters at hand." (quoting Kowalski v. Gagne,

 (1st Cir. 1990))).


                                      - 4 -
774, 778 (4th Cir. 2023).4          His complaint included a request for

attorney's fees and costs.

                 During the North Carolina Litigation, Sager provided AXA

with information about "an 'extended activity file' that MIB had

maintained on . . . Wiener going back to 1995."                Specifically, he

disclosed that "no member companies except AXA . . . and [its

reinsurer] ever made an inquiry of . . . Wiener's MIB file since

1995" (the "Disclosure").         According to Sager, this meant that "no

information contained in . . . Wiener's file [had] ever been shared

with       any   other   member   company   except   AXA   .    .   .   and   [its

reinsurer]."         He provided this information to AXA "voluntarily,"

"not pursuant to any [c]ourt or other compelled process," and

without Wiener's authorization.             At the time Sager searched the

extended activity file,           he knew that AXA had a policyholder

relationship with Wiener at some point but did not know (or make

any effort to determine) whether Wiener was still insured by AXA.

                 Sager then worked with AXA to draft a declaration from

him conveying this information, which AXA submitted in support of




       Wiener's complaint in the North Carolina Litigation also
       4

alleged negligent misrepresentation, libel, and a violation of
North Carolina's Unfair and Deceptive Trade Practices Act, but the
district court dismissed these claims on summary judgment. See
Wiener, 58 F.4th at 778.



                                      - 5 -
a motion in limine to exclude Wiener's causation expert at trial.5

That       expert   was   prepared     to    testify   that:      (1)   MIB's   member

insurance       companies       review      the    information     coded     into    an

individual's MIB file to determine that individual's insurability;

and    (2)    "AXA's      inaccurate     code     reporting   to   MIB     created   an

insurmountable obstacle to               [Wiener's] insurability with other

carriers" and rendered him "effectively uninsurable."                      Sager also

eventually testified at the North Carolina trial, reiterating the

information in his declaration and confirming that he had conducted

the    search       of    the   extended        activity   file     "on    [his]     own

initiative . . . knowing that there was some controversy."

               Wiener "incurred attorney's fees and costs associated

with having to respond to" the Disclosure, which came after the

close of discovery in the North Carolina Litigation.                      "This placed

[Wiener] at a substantial disadvantage in the litigation and caused

not only financial harm but distress as well."




       In this case, Wiener alleges in his amended complaint that
       5

AXA filed Sager's declaration "in support of a dispositive motion."
He concedes in his opening brief on appeal, however, that this
allegation was incorrect and that AXA filed the declaration "in
support of three motions in limine as referenced in the briefing
below and apparent from review of the docket in" the North Carolina
Litigation. Before the district court, though, Wiener cited (and
filed a copy of) only one motion in limine, namely, AXA's motion
to exclude Wiener's expert from testifying at trial.        Because
Wiener did not rely on the other two motions in limine for his
standing argument below, we do not consider those motions here.


                                         - 6 -
             Nevertheless, at the conclusion of the North Carolina

trial in September 2020, the jury returned a verdict in Wiener's

favor.      AXA subsequently filed a motion to dismiss for lack of

subject matter jurisdiction and to set aside the verdict.                     In

addition     to   challenging    the    district    court's   subject     matter

jurisdiction,6 AXA argued that there was insufficient evidence of

harm to support the jury's verdict for Wiener on his negligence

claim.     The district court granted AXA's motion on jurisdictional

grounds, declining to address AXA's remaining arguments.

             Wiener appealed to the U.S. Court of Appeals for the

Fourth Circuit.       In 2023, the Fourth Circuit reversed the decision

granting AXA's motion to dismiss.              See Wiener, 58 F.4th at 777,

785.       In doing so, it also concluded that "[a]mple evidence

supported the jury's verdict for Wiener."           Id. at 784.     It remanded

the case for review of post-trial damages issues.             See id. at 777,

785.

                          B.     Proceedings Below

             Wiener    brought    this    suit     against    MIB   and   Sager

(collectively, "MIB") in the District of Massachusetts in May 2022,

while his appeal in the North Carolina Litigation was pending.                In

July, he filed the operative amended complaint in this case,




       The basis of AXA's jurisdictional challenge was that an
       6

exclusive-remedies provision in a North Carolina statute preempted
Wiener's negligence claim. Wiener, 58 F.4th at 779.


                                       - 7 -
bringing two counts under the Fair Credit Reporting Act (the

"FCRA")7 and seeking damages, declaratory and injunctive relief,

attorney's fees, and costs. Shortly thereafter, MIB filed a motion

to dismiss the amended complaint.            MIB pursued two grounds for

dismissal: failure to plead Article III standing and failure to

state a claim under Federal Rule of Civil Procedure 12(b)(6) for

any violation of the FCRA.8       Wiener opposed on both grounds.           On

Article III standing, he pointed to two harms alleged in his

amended complaint: the out-of-pocket loss he incurred, in the form

of   additional    attorney's   fees   and    costs,   to   respond   to   the

Disclosure in the North Carolina Litigation; and the distress

caused by MIB's invasion of his privacy via the Disclosure.


      7More specifically, Wiener alleged violations under sections
1681n and 1681r (Count I) and 1681o (Count II) of the FCRA. Section
1681r prohibits "[a]ny officer or employee of a consumer reporting
agency [from] knowingly and willfully provid[ing] information
concerning an individual from the agency's files to a person not
authorized to receive that information."       15 U.S.C. § 1681r.
Sections 1681n and 1681o "provide[] a private right of action and
impose[] civil liability on users of credit information and
consumer   reporting    agencies   for   noncompliance    with  the
requirements of the [FCRA]" if the noncompliance was willful
(§ 1681n(a)), knowing (§ 1681n(b)), or negligent (§ 1681o).
Sullivan v. Greenwood Credit Union, 

 (1st Cir.
2008).

      8 AlthoughMIB characterized its standing challenge as arising
under Rule 12(b)(6), we consider its motion to dismiss for lack of
standing as made under Rule 12(b)(1), which permits motions to
dismiss for lack of subject matter jurisdiction. See Dantzler,
Inc. v. Empresas Berríos Inventory & Operations, Inc., 

 (1st Cir. 2020) (noting that "standing is a prerequisite to
a   federal   court's   subject   matter   jurisdiction"   (quoting
Hochendoner v. Genzyme Corp., 

 (1st Cir. 2016))).


                                  - 8 -
          In October 2022, the parties presented oral argument on

the motion to dismiss.    At the start of the hearing, the district

court   noted    that   Wiener's     "most   difficult    problem"   was

constitutional standing and asked how Wiener had been harmed.

Wiener's counsel cited "two aspects of . . . harm for standing

purposes."   The first harm, she explained, was an "invasion of a

privacy interest, . . . which has been protected in the common law

for over 100 years."     But before she could make her second point,

the district court posed a question and then quickly pivoted to

MIB's counsel.    After a brief exchange with MIB's counsel, the

district court ruled from the bench that Wiener lacked Article III

standing and granted the motion to dismiss.        In total, the hearing

lasted about five minutes.     The district court thereafter entered

a one-sentence written order of dismissal.      It never reached MIB's

arguments that the amended complaint failed to state a claim under

Rule 12(b)(6).   Wiener timely appealed.

                        II.   STANDARD OF REVIEW

          We review de novo the district court's decision to

dismiss the case on Article III standing grounds based on the face

of the amended complaint, prior to any discovery.           See Webb v.

Injured Workers Pharmacy, LLC, 

 (1st Cir. 2023).

In doing so, we "take the [amended] complaint's well-pleaded facts

as true and indulge all reasonable inferences in [Wiener]'s favor."

Hochendoner v. Genzyme Corp., 

 (1st Cir. 2016);


                                   - 9 -
see Webb, 

.          We also "consider (a) implications

from   documents   attached   to    or   fairly    incorporated       into   the

[amended] complaint, (b) facts susceptible to judicial notice, and

(c) [any] concessions in [Wiener]'s response to the motion to

dismiss."    Lyman v. Baker, 

 (1st Cir. 2020)

(cleaned up) (quoting Schatz v. Republican State Leadership Comm.,

 (1st Cir. 2012)).

            It is Wiener's burden, as the plaintiff, to allege

sufficient facts "to plausibly demonstrate" standing.             DiCroce v.

McNeil Nutritionals, LLC, 

 (1st Cir. 2023) (quoting

Hochendoner, 

).       "Neither conclusory assertions nor

unfounded    speculation      can     supply      the     necessary     heft."

Hochendoner, 

.        Because "standing is not dispensed

in gross," Wiener must demonstrate standing for each claim he

brings and each form of relief he seeks.                  TransUnion LLC v.

Ramirez, 

 (2021).

            We must "accept as valid" the merits of Wiener's legal

claims in evaluating Article III standing.              Fed. Election Comm'n

v. Cruz, 

, 298 (2022); see Hochendoner, 

 (evaluating standing without considering               "the plaintiffs'

[substantive] claims as a matter of law or the adequacy of their

pleading to state a claim"); see also Mission Prod. Holdings, Inc.

v. Tempnology, LLC, 

 (2019) (noting that the

uncertainty or unlikelihood of a plaintiff's ultimate recovery "is


                                    - 10 -
of no moment" to the issue of standing).                  Accordingly, for the

purposes of this opinion, we assume that Wiener has adequately

pleaded claims under the FCRA against MIB.                See Cruz, 596 U.S. at

298.

                             III.      DISCUSSION

           Wiener   argues          that   the   district       court    erred   in

dismissing his amended complaint for lack of Article III standing.

He also urges us to hold that he has plausibly stated a claim for

violations of the FCRA, even though the court never reached MIB'S

Rule 12(b)(6) arguments.           We agree that the district court erred

in dismissing the amended complaint on Article III grounds but

remand so that it can consider MIB's Rule 12(b)(6) arguments in

the first instance.

                        A.     Article III Standing

           Article III of the Constitution limits "the judicial

Power" to "Cases" and "Controversies."             U.S. Const. art. III, § 2,

cl. 1; see Spokeo, Inc. v. Robins, 

 (2016)

("Standing   to   sue   is     a    doctrine     rooted    in   the     traditional

understanding of a case or controversy.").                In evaluating Article

III standing, we essentially "determine whether [a] particular

plaintiff is entitled to have a federal court"                        decide   their

dispute.   Pagán v. Calderón, 

 (1st Cir. 2006).

           To demonstrate Article III standing, a plaintiff must

meet a familiar three-part test.               "[A] plaintiff must show (i)


                                      - 11 -
that    he     suffered     an     injury   in    fact     that   is   concrete,

particularized, and actual or imminent; (ii) that the injury was

likely caused by the defendant; and (iii) that the injury would

likely be redressed by judicial relief."                 TransUnion, 

.       An injury is concrete if it "actually exist[s]" and

particularized if it "affect[s] the plaintiff in a personal and

individual way."          Spokeo, 

-40 (quoting Lujan v.

Defs. of Wildlife, 

, 560 n.1 (1992)); see DiCroce, 

.       The causation prong requires that the plaintiff's

injury be fairly traceable to the defendant's conduct, rather than

the result of "independent action" by some other party not before

the court.       Lyman, 

 (quoting Lujan, 

).        Finally,   the      redressability   prong     requires   that   the

plaintiff request relief that is likely to remedy their injury.

See Uzuegbunam v. Preczewski, 

 (2021); Brito v.

Garland, 

 (1st Cir. 2021).              If the plaintiff fails

at the pleading stage to allege facts demonstrating each element

of standing, "there is no case or controversy for the federal court

to resolve."      TransUnion, 

 (quoting Casillas v.

Madison Ave. Assocs., Inc., 

 (7th Cir. 2019));

see Spokeo, 

.

              Importantly, Wiener does not "automatically satisf[y]"

Article III's requirements simply because the FCRA grants him "a

statutory right and purports to authorize [him] to sue to vindicate


                                       - 12 -
that right."   Spokeo, 

.       "[E]ven in the context of

a statutory violation," Wiener must allege an injury in fact to

satisfy Article III standing.         TransUnion, 

(quoting Spokeo, 

); see Plazzi v. FedEx Ground

Package Sys., Inc., 

 (1st Cir. 2022).

          To that end, Wiener asserts that he has plausibly pleaded

two types of harm: (1) out-of-pocket loss in the form of attorney's

fees and costs that he already incurred in the North Carolina

Litigation as a result of the Disclosure; and (2)              emotional

distress arising from MIB's invasion of his privacy interests (vis-

à-vis the Disclosure).9      Because we conclude that Wiener's out-of-

pocket loss is sufficient to give him Article III standing to bring

his damages claims under the FCRA, we do not reach his second

standing argument.    See Webb, 

 (declining to

address   standing   based    on   alleged   emotional   distress   after

concluding   plaintiffs   plausibly    alleged   standing   via   another




     9 We pause to note that Wiener's opening brief focuses almost
exclusively on the injury inquiry, but his reply delves into the
remaining standing elements. MIB does not take issue with this
approach, perhaps because of the district court's focus on the
injury prong. But we do not need to dwell on the upshot of any of
this because, deploying de novo review, we find on this record
that we are amply equipped to tackle a comprehensive standing
analysis.   See Hoolahan v. IBC Advanced Alloys Corp., 

, 115 n.20 (1st Cir. 2020) ("[W]e exercise our discretion to
bypass the issue of . . . waiver and leave the ramifications for
another   day,   particularly  because   we   will  analyze   [the
appellant]'s arguments under a de novo standard . . . ." (citation
omitted)).


                                   - 13 -
basis); Attias v. Carefirst, Inc., 

, 626 n.2 (D.C.

Cir. 2017) ("Because we conclude that all plaintiffs . . . have

standing to sue . . . based on their heightened risk of future

identity theft, . . . we will not address the other theories of

standing advanced by plaintiffs . . . .").

                         1.   Injury in Fact

            Wiener's alleged injury in fact is straightforward: He

claims   that   after   discovery   closed   in   the   North   Carolina

Litigation, Sager illegally disclosed to AXA information that was

potentially fatal to Wiener's claims in that case.          Wiener was

caught off-guard, had to respond "without the typical discovery

methods," and incurred additional attorney's fees and costs in

doing so.   In evaluating the allegations in the amended complaint,

we "draw on our judicial experience and common sense . . . and

read the complaint as a whole."      Webb, 

 (brackets

omitted) (quoting In re Evenflo Co., Inc., Mktg., Sales Pracs. &

Prods. Liab. Litig., 

, 39 (1st Cir. 2022), cert. denied,

No. 22-1181, 

 (U.S. Oct. 2, 2023)).

            The docket in the North Carolina Litigation supports

Wiener's allegations.    Wiener's negligence claim against AXA was

based on the premise that AXA's erroneous code reporting to MIB

caused him to become virtually uninsurable, as any insurer would

have declined coverage after discovering the four serious medical

conditions listed in his MIB profile. To that end, Wiener's expert


                                - 14 -
was prepared to testify that "AXA's inaccurate code reporting to

MIB created an insurmountable obstacle to [Wiener's] insurability

with other carriers."    AXA used Sager's declaration to support its

(ultimately unsuccessful) motion in limine to exclude Wiener's

expert.   It relied on Sager's declaration to argue that, contrary

to the opinion of Wiener's expert, "MIB [had] confirmed that none

[of its member companies] requested . . . Wiener's MIB codes" or

relied on those codes.   And at trial, Sager testified that a search

of Wiener's MIB file revealed no insurer had ever accessed the

codes in his file. The thrust of Sager's declaration and testimony

was that, if no insurer had ever seen the codes AXA inaccurately

reported to MIB, AXA's reporting could not have caused Wiener's

uninsurability.

           We find the amended complaint's "allegations sufficient

to meet the minimal plausibility standard for" pleading an Article

III injury.   DiCroce, 

.       The plausibility standard

"does not demand 'a high degree of factual specificity'" in the

context of a motion to dismiss.      García-Catalán v. United States,

 (1st Cir. 2013) (quoting Grajales v. P.R. Ports

Auth., 

 (1st Cir. 2012)).10      Viewed as a whole, the

amended   complaint   demonstrates   "that   [Wiener]   has   personally


     10 Accordingly, contrary to MIB's suggestion, Wiener was not
required to allege explicitly in the amended complaint "how, when,
where, why and to whom [he] owes or will eventually owe attorney's
fees."


                               - 15 -
suffered economic harm in the past as a result of [MIB's] alleged

misconduct," and that is enough at this stage.            DiCroce, 

.

           Although his substantive claims are based on a statute,

Wiener does not "allege a bare procedural violation [of the FCRA],

divorced from any concrete harm," Spokeo, 

, or

"merely seek[] to ensure [MIB]'s 'compliance with [statutory]

law,'" TransUnion, 

 (citation omitted).              Rather,

he alleges an out-of-pocket loss, a quintessential injury in fact.

See Gustavsen v. Alcon Lab'ys, Inc., 

 (1st Cir.

2018); TransUnion, 

; Webb, 

.

           MIB disagrees, devoting most of its argument on appeal

to undermining Wiener's alleged injury.             It cites the general

premise that a plaintiff cannot establish Article III standing "by

bringing suit for the cost of bringing suit" and relies on a number

of cases to support this argument.             See, e.g., Steel Co. v.

Citizens   for   a   Better   Env't,   

    (1998)   ("[A]

plaintiff cannot achieve standing to litigate a substantive issue

by bringing suit for the cost of bringing suit.                 The litigation

must give the plaintiff some other benefit besides reimbursement

of costs that are a byproduct of the litigation itself."); Lewis

v. Cont'l Bank Corp., 

 (1990) ("[An] interest in

attorney's fees is, of course, insufficient to create an Article




                                  - 16 -
III case or controversy where none exists on the merits of the

underlying claim.").

             None of the cases MIB cites is on point.        Wiener is not

"bringing suit for the cost of bringing suit," as he does not seek

"reimbursement of [fees or] costs that are a byproduct of [this]

litigation" against MIB.       Steel Co., 

.        Rather, he

seeks damages to recover legal expenses that he already incurred

in a separate lawsuit against a different party.              As the Sixth

Circuit      has      recognized,      "[f]ees     from      a     separate

proceeding . . . do not raise typical standing concerns because

the   harm   has   already   materialized,   and   the    plaintiff   cannot

manufacture standing simply by filing a new lawsuit."              Hurst v.

Caliber Home Loans, Inc., 

 (6th Cir. 2022)

(emphasis    added)    (concluding    that   attorney's    fees    allegedly

incurred by mortgagor in separate, foreclosure action due to

mortgagee's violation of real estate statute satisfied injury-in-

fact requirement to confer standing); see, e.g., Bouye v. Bruce,

, 490 (6th Cir. 2023) (concluding that plaintiff had

standing because she had not "plead[ed] a mere statutory violation"

but also an injury, as "she had to defend against a state lawsuit

that [the defendant] had no right to bring in the first place").11


      11In its Rule 28(j) letter, MIB also directs our attention
to the Seventh Circuit's recent decision in Choice v. Kohn L. Firm,
S.C., 

 (7th Cir. 2023).      In Choice, the plaintiff



                                    - 17 -
            MIB nevertheless contends that "it makes little sense

that the . . . Disclosure, a seemingly benign (and truthful and

accurate)    communication,   somehow        materially    caused    Wiener

financial harm above and beyond that already incurred in the normal

course of the North Carolina [L]itigation."               But drawing all

reasonable    inferences   from    the     amended   complaint's    factual

allegations in Wiener's favor, we conclude otherwise.

            As Wiener claims, the North Carolina Litigation's public

filings suggest that the Disclosure was engineered to end that

case by undermining any causal connection between AXA's actions

and Wiener's later inability to secure life insurance.             Using our

common sense and judicial experience, we find it entirely plausible

that Wiener would have expended additional fees and costs to

address this potentially litigation-ending evidence.          The truth or


alleged that the defendants' contradictory statements in a
separate, debt collection lawsuit caused him to take the
"detrimental step" of litigating the dispute rather than settling
the debt. See 

. The Seventh Circuit concluded
that Article III standing was lacking because the plaintiff's
complaint contradicted his claim that the defendants had induced
him to litigate; rather, the complaint indicated the defendants'
actions simply left him "confused about the proper course of
action" to take and so he consulted an attorney.      

 at 639
(citing Seventh Circuit precedent that "confusion leading one to
hire a lawyer [and pay an appearance fee] is insufficient to
establish standing").    Here, by contrast, Wiener's theory of
standing does not rest on mere confusion about next steps.
Instead, he alleges that MIB forced his hand and required him to
respond defensively to its actions, expending extra attorney's
fees and costs in the process.        We therefore find Choice
inapposite.


                                  - 18 -
accuracy    of    the   Disclosure,    although     potentially      relevant     to

Wiener's substantive claims under the FCRA, is not relevant to his

standing argument based on an out-of-pocket loss. See Hochendoner,

 (conducting standing inquiry without regard to

"the validity of any of the plaintiffs' [substantive] claims as a

matter of law or the adequacy of their pleading to state a claim

under Rule 12(b)(6)").

            MIB    also    argues     that     Wiener's    alleged    injury     is

conjectural and hypothetical and therefore "squarely precluded" by

Clapper     v.   Amnesty   Int'l    USA,      

    (2013).        MIB

misunderstands Clapper and Article III jurisprudence generally.

In Clapper, the plaintiffs voluntarily engaged in costly and

burdensome measures that they claimed were necessary to protect

their communications from a government surveillance program.                     See

.        The Supreme Court rejected this basis for

standing because the plaintiffs could not show that they had been,

or were likely to be, subjected to surveillance.                 See 

.

The Court held that the plaintiffs could not "manufacture standing

merely by inflicting harm on themselves based on their fears of

hypothetical future harm that is not certainly impending."                     Id.;

see   

   (explaining    that     "threatened      injury   must   be

certainly impending to constitute an injury in fact" (quoting

Whitmore v. Arkansas, 

 (1990))).




                                      - 19 -
              Given that the Disclosure already occurred and Wiener

already spent money to respond to it, his harm is not hypothetical

or conjectural and MIB's arguments based on Clapper make little

sense.   Importantly, our "inquiry into standing must be based on

the facts as they existed when the action was commenced."           Roe v.

Healey, 

 (1st Cir. 2023) (quoting Ramírez v. Sánchez

Ramos, 

 (1st Cir. 2006)).       At the time he filed the

amended complaint, Wiener had incurred attorney's fees and costs

because of the Disclosure and had not been reimbursed for those

fees or costs.

              We address two final points by MIB to wrap up our injury-

in-fact inquiry.      First, MIB suggests that, at the hearing on the

motion   to    dismiss,   Wiener   intentionally   limited   his   standing

argument to the invasion of privacy harm.          The hearing transcript

undermines this assertion.         The hearing lasted no more than five

minutes before the district court delivered its oral decision,

without any opportunity for Wiener's counsel to address the second

point she had teed up at the start of her argument.          There was no

intentional waiver here.       Second, MIB perfunctorily asserts that

Wiener's alleged injury is not particularized.           Even if MIB has

not waived this argument, it is meritless.          Wiener's loss of his

own money affected him "in a personal and individual way." Spokeo,

 (citation omitted); see Gustavsen, 

(finding an "out-of-pocket loss of money" to be a particularized


                                    - 20 -
injury).     In sum, Wiener has sufficiently alleged an injury in

fact.

                             2.      Causation

           Wiener's alleged financial harm is also fairly traceable

to MIB's conduct.       Taking the amended complaint's well-pleaded

facts as true and indulging all reasonable inferences in Wiener's

favor, it is plausible that Wiener could have avoided additional

attorney's    fees   and   costs    had     the    Disclosure     not   occurred.

Although AXA ultimately leveraged the Disclosure in the North

Carolina Litigation, it was Sager who voluntarily shared Wiener's

FCRA-protected information with AXA, "knowing that there was some

controversy" between AXA and Wiener.              Accordingly, the Disclosure

was not "the result of the independent action of" AXA.                  Lyman, 

 (brackets omitted) (quoting Lujan, 

);

see Dep't of Com. v. New York, 

 (2019) (finding

causation where respondents' theory of standing relied "on the

predictable effect of [the petitioner]'s action on the decisions

of third parties").

           MIB   nonetheless       argues    that    any   harm    that    Wiener

experienced    was   "self-inflicted,"       again    citing    Clapper.      MIB

continues to misread that case.             In Clapper, the Supreme Court

concluded that, because the plaintiffs did "not face a threat of

certainly impending interception under [the Foreign Intelligence

Surveillance Act], the costs that they [had] incurred to avoid


                                    - 21 -
surveillance     [were]   simply     the     product     of   their     fear   of

surveillance."    

.         The costs were therefore "self-

inflicted" rather than traceable to the government's activities.

See 

.

          The type of self-inflicted harm at issue in Clapper is

not implicated here.      Unlike the plaintiffs in Clapper, Wiener did

not incur costs to prevent a speculative future harm.             Instead, he

responded, after the fact, to critical evidence introduced by his

adversary in a lawsuit.         In doing so, he incurred additional

litigation-related expenses.        Responding to important evidence is

part and parcel of all litigation.           Accordingly, we find entirely

unpersuasive MIB's argument that Wiener's decision to respond to

evidence that could have been fatal to his claims constituted

"self-inflicted" harm.

                           3.   Redressability

          Finally,    a   damages    award     against    MIB   would    redress

Wiener's alleged financial harm.             See Gustavsen, 

("Nor can there be any doubt that plaintiffs' financial injury can

be redressed by damages."); see also Dantzler, Inc. v. Empresas

Berríos Inventory & Operations, Inc., 

 (1st Cir.

2020) (explaining that a plaintiff "must show that the court can

fashion a remedy that will at least lessen [their] injury" but

"need not demonstrate that [their] entire injury will be redressed

by a favorable judgment").


                                    - 22 -
              Recycling its earlier arguments, MIB claims that the

possibility that Wiener may recover attorney's fees and costs in

the North Carolina Litigation means that he has failed to meet the

redressability prong.       In MIB's view, Wiener's "claims of harm

here would be rendered moot" if he were awarded fees and costs in

the   North    Carolina   Litigation.       "The   burden   of   establishing

mootness rests squarely on the party raising it, and '[t]he burden

is a heavy one.'"       Mangual v. Rotger-Sabat, 

 (1st

Cir. 2003) (alteration in original) (quoting United States v. W.T.

Grant Co., 

 (1953)).              At this stage, MIB has

failed to meet that burden.

              Indeed,   MIB's   hypothesis    that    Wiener     may   recover

attorney's fees and costs in the North Carolina Litigation, and

that any such award may include full reimbursement for his costs

and expenses in responding to the Disclosure, is pure speculation.

It in no way alters the basic facts alleged here: Wiener has

incurred an out-of-pocket loss, that loss remains unreimbursed,

and the district court could remedy that loss with a damages

award.12



       Moreover, as Wiener notes, the district court in the North
      12

Carolina Litigation dismissed his claim seeking attorney's fees
prior to trial. See Wiener, No. 3:18-cv-00106, ECF No. 1-2, at
11-12 (W.D.N.C. Mar. 8, 2018) (complaint requesting attorney's
fees in connection with claim for unfair and deceptive trade
practices); Wiener v. AXA Equitable Life Ins. Co., No. 3:18-cv-
00106, 

, at *9 (W.D.N.C. June 5, 2020) (order



                                   - 23 -
                      B.     Rule 12(b)(6) Arguments

              Because the district court did not address MIB's Rule

12(b)(6) arguments, we leave it to the district court to consider

those arguments on remand.           See Webb, 

 (remanding

case    for   district     court   to    consider    alternative    bases    for

dismissal); In re Evenflo, 54 F.4th at 41 (same).                We express no

view on those arguments.

                               IV.      CONCLUSION

              For all these reasons, we reverse the district court's

order    dismissing   Wiener's       amended   complaint    on     Article   III

standing grounds and remand for further proceedings consistent

with this opinion.




dismissing, inter alia, claim for unfair and deceptive trade
practices).


                                      - 24 -