On October 28, 2021, the U.S. Court of Appeals for the Eleventh Circuit vacated its prior unanimous ruling in Hunstein v. Preferred Collection and Management Services, Inc. 994 F.3d 1341 (11th Cir. 2021) (Hunstein I), substituting a new opinion in its place (Hunstein II) by a 2-1 decision. The Eleventh Circuit issued its new opinion in response to the Supreme Court’s ruling in TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021). The new opinion reaffirms Hunstein I, finding that a debt collector may violate the Fair Debt Collection Practices Act (FDCPA) by transmitting private information to a third-party commercial mail vendor.
In Hunstein I, the Eleventh Circuit held that “concrete statutory harm under FDCPA Section 1692c(b) can be established without having the plaintiff alleging a “risk of real harm” or a “tangible harm” like a financial loss. See WBK’s article on Hunstein I for more details about the initial ruling.
In June, the Supreme Court issued Ramirez, the Court’s latest opinion discussing Article III standing. In Ramirez, the Court reaffirmed that “Article III standing requires a concrete injury even in the context of a statutory violation” and it was not the case that “a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.” In a footnote, the Supreme Court directed dicta towards the very issue presented in Hunstein, questioning whether providing consumer information to a printing vendor could qualify as a “publication,” while observing that the theory was not sufficiently similar enough to traditional defamation tort claims to provide standing.
In Hunstein II, the Eleventh Circuit reaffirms Hunstein I, holding that the plaintiff still had Article III standing. The Eleventh Circuit distinguished Ramirez by finding that because the plaintiff had “alleged a harm similar in kind to the common-law tort of public disclosure of private facts,” he had established “an intangible-but-nonetheless-concrete injury” through a FDCPA violation.
The majority found that the alleged common law harm in the plaintiff’s case was an invasion of privacy–the public disclosure of private facts. The majority reasoned that a statutory harm does not need to have an “exact duplicate” of the common law tort, and drawing a distinction that a plaintiff “need only show that his alleged injury is similar in kind to the harm addressed by a common law cause of action, not that it is similar in degree.” The majority relied on the plaintiff’s claims that the debt collector, “‘disclosed’ . . . ‘sensitive medical information’ to ‘the employees of an unauthorized third-party mail house,’” to establish that some amount of disclosure had occurred. Therefore, under the Hunstein II majority’s analysis, “a plaintiff need only show that his alleged injury is similar in kind to the harm addressed by a common-law cause of action, not that it is similar in degree” to satisfy the history prong of Article III’s standing test for intangible harms.
However, Judge Tjoflat dissented, concluding that the majority’s standing analysis swept beyond what Ramirez permits. Judge Tjoflat found that the majority’s analysis “goes off the rails,” by ignoring that Ramirez requires a plaintiff to allege sufficient facts to find a common law analogue, and that the communication in question was not “public.” Judge Tjoflat further opined that without public disclosure, the plaintiff could not satisfy the two other elements required under the common law and that accordingly, the claim must fail. Finally, Judge Tjoflat also noted that the damages provision of the FDCPA, 15 U.S.C. § 1692k presumes that there would be actual damages for a violation of the statute and that in his view, this supports the interpretation that Congress did not intend for a violation of 15 U.S.C. § 1692c(b) to create standing.