RICHARD HUNSTEIN v. PREFERRED COLLECTION AND MANAGEMENT SERVICES, INC.
No. 19-14434
United States Court of Appeals for the Eleventh Circuit
October 28, 2021
[PUBLISH]
Appeal from the United States District Court for the Middle District of Florida
D.C. Docket No. 8:19-cv-00983-TPB-TGW
Before JORDAN, NEWSOM, and TJOFLAT, Circuit Judges.
Upon consideration of the petition for rehearing, the amicus curiae briefs submitted in support of that petition, and the Supreme Court‘s intervening decision in TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021), which bears on one of the issues presented in the case, the Court sua sponte VACATES its prior opinion, published at 994 F.3d 1341 (11th Cir. 2021), and substitutes the following in its place.
* * *
This appeal presents an interesting question of first impression under the Fair Debt Collection Practices Act—and, like so many other cases arising under federal statutes these days, requires us first to consider whether our plaintiff has Article III standing.
Here‘s the short story, as described in the complaint, whose allegations we must accept as true for present purposes: A debt collector electronically transmitted “sensitive medical information” concerning a consumer‘s debt—including not only his name and outstanding balance, but also the fact that his debt resulted from his minor son‘s medical treatment, as well as his son‘s name—to a third-party vendor. The vendor then used the data to create, print, and mail a “dunning” letter to the consumer. The
We hold (1) that the violation of
I
Congress enacted the FDCPA “to eliminate abusive debt collection practices by debt collectors” and “to protect consumers against debt collection abuses.”
Except as provided in section 1692b of this title, without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.
The facts, according to the complaint, are these: Richard Hunstein incurred a debt to Johns Hopkins All Children‘s Hospital arising out of his minor son‘s medical treatment. The hospital assigned the debt to Preferred Collections & Management Services, Inc. for collection. Preferred in turn hired CompuMail Information Services, Inc., a California-based commercial mail vendor, to handle the collection. Preferred electronically transmitted to CompuMail “sensitive medical information” about Hunstein—including, for instance, not only (1) his status as a debtor and (2) the exact balance of his debt and the entity to which it was owed, but also (3) that the debt concerned his son‘s medical treatment and (4) his son‘s name. CompuMail used that information to generate and send a dunning letter to Hunstein.
Hunstein filed a complaint, asserting violations of both the FDCPA, see
Hunstein appealed, and we requested supplemental briefing on the question whether he had Article III standing to sue, which we now consider along with the merits.2
II
First things first. Because standing implicates our subject matter jurisdiction, we must address it at the outset, before turning to the merits. Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 101–02 (1998).
Hunstein‘s appeal involves the first element, injury in fact, which consists of “an invasion of a legally protected interest” that is both “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Id. at 560 (quotation marks omitted). In Trichell v. Midland Credit Management, Inc., 964 F.3d 990 (11th Cir. 2020), a case involving the FDCPA, we reiterated that “[e]ach subsidiary element of injury—a legally protected interest, concreteness, particularization, and imminence—must be satisfied.” Id. at 996–97. The standing question here implicates the concreteness sub-element.
A plaintiff can meet the concreteness requirement in any of three ways. First, he can allege a tangible harm—a category that is “the most obvious and easiest to understand” and that includes, among other things, physical injury, financial loss, and emotional distress. See Muransky v. Godiva Chocolatier, Inc., 979 F.3d 917, 926 (11th Cir. 2020) (en banc); see also Huff v. TeleCheck Servs., Inc., 923 F.3d 458, 463 (6th Cir. 2019). Second, a plaintiff can allege a “risk of real harm.” Muransky, 979 F.3d at 927. Third, in the absence of a tangible injury or a risk of real harm, a plaintiff can allege an intangible-but-nonetheless-concrete injury, including one resulting from a statutory violation. Spokeo, 578 U.S. at 340. We consider each possibility in turn.
A
In a supplemental brief, Hunstein concedes that his “injury is not tangible.” Supp. Br. of Appellant at 10. To be sure, his complaint (1) conclusorily asserts that “[i]f a debt collector conveys information regarding the debt to a third party—informs the third party that the debt exists or provides information about the details of the debt—then the debtor may well be harmed by the spread of this information,” and (2) vaguely references the “known, negative effect that disclosing sensitive medical information to an unauthorized third-party has on consumers.” And on a (very) charitable reading, those statements might be construed to allege emotional harm, which some courts have counted as a tangible injury for Article III purposes. See Huff, 923 F.3d at 463. Regardless, because Hunstein has expressly disclaimed it, and because, as we explain in detail below, he has alleged a different kind of concrete injury sufficient to establish standing, we needn‘t decide whether he has sufficiently alleged a tangible emotional harm.
B
Hunstein can‘t demonstrate a “risk of real harm.” “[W]hile very nearly any level of direct injury is sufficient to show a concrete harm, the risk-of-harm analysis entails a more demanding standard—courts are charged with considering the magnitude of the risk.” Muransky, 979 F.3d at 927. “Factual allegations that establish a risk that is substantial, significant, or poses a realistic danger will clear this bar . . . .” Id. at 933. Put slightly differently, to constitute injury in fact, the “threatened injury must be certainly impending.” Clapper v. Amnesty Int‘l USA, 568 U.S. 398, 409 (2013). Again, Hunstein alleges only that a debtor “may well be harmed by the spread” of the sort of information at issue here. That vague allegation falls short of a risk that is “substantial, significant, or poses a realistic danger,” Muransky, 979 F.3d at 933, or is “certainly impending,” Clapper, 568 U.S. at 409.
C
We thus consider whether Hunstein can show standing in the third manner—through an intangible injury resulting from a statutory violation. “[T]he violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact,” such that “a plaintiff . . . need not allege any additional harm beyond the one Congress has identified.” Spokeo, 578 U.S. at 342 (emphasis in original). Spokeo instructs that in determining whether an alleged statutory violation confers Article III standing, we should consider “[1] history and [2] the judgment of Congress.” Id.
1
Starting with history, we can discern a concrete injury where—in the words of TransUnion, echoing Spokeo—“the asserted harm has a ‘close relationship’ to a harm traditionally recognized as providing a basis for a lawsuit in American courts.” TransUnion, 141 S. Ct. at 2200 (quoting Spokeo, 578 U.S. at 341). Put differently, we look to “whether the statutory violation at issue led to a type of harm that has historically been recognized as actionable.” Muransky, 979 F.3d at 926. In particular—more on this shortly—our en banc opinion in Muransky explains that the fit between a plaintiff‘s statutory claim and “a pedigreed common-law cause of action need not be perfect, but we are called to consider at a minimum whether the harms match up between the two.” Id.
a
For more than a century, invasions of personal privacy have been regarded as a valid basis for tort suits in American courts. See, e.g., Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68, 73 (1905); Munden v. Harris, 153 Mo. App. 652, 134 S.W. 1076, 1079 (1911); Kunz v. Allen, 102 Kan. 883, 172 P. 532, 532–33 (1918). By 1977, the Restatement (Second) of Torts reported that “the existence of a right of privacy is now recognized in the great majority of the American jurisdictions that have considered the question.” Restatement (Second) of Torts § 652A cmt. a. (Am. Law Inst. 1977). It is altogether unsurprising, then, that in reiterating Spokeo‘s holding that “intangible harms can . . . be concrete,” the Supreme Court in TransUnion pointed to a handful of privacy-related torts: “reputational harms, disclosure of private facts, and intrusion upon seclusion.” TransUnion, 141 S. Ct. at 2204.
As TransUnion‘s summary suggests, the term “invasion of privacy” comprises an identifiable family of common-law torts—including, most relevantly here, one of the Supreme Court‘s own exemplars: “public disclosure of private facts.” Invasion of Privacy, Black‘s Law Dictionary 952 (10th ed. 2014). It is hornbook law that “[o]ne who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.” Restatement (Second) of Torts § 652D (1977); accord, e.g., 77 C.J.S. Right of Privacy and Publicity § 32; 62A Am. Jur. 2d Privacy § 79. Indeed, the Supreme Court itself has recognized “the individual interest in avoiding disclosure of personal matters” and that “both the common law and the literal understandings of privacy encompass the individual‘s
Having established the historical pedigree of invasion-of-privacy torts in particular, the sub-species applicable to the public disclosure of private facts—we next consider whether Preferred‘s alleged statutory violation is sufficiently analogous. For the reasons that follow, and having considered the Supreme Court‘s recent decision in TransUnion, we hold that it is.
We begin with a bedrock truth, which both the Supreme Court and this Court have stated and restated (and restated): Article III does not require an exact match between a statutory claim and a common-law cause of action. In Spokeo itself, the Supreme Court required only a “close relationship” between the two. See 578 U.S. at 341. On remand from—and taking direction from—the Supreme Court, the Ninth Circuit in Spokeo emphasized that the Court had “observed that it is instructive to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit, not that Congress may recognize a de facto intangible harm only when its statute exactly tracks the common law.” Robins v. Spokeo, Inc., 867 F.3d 1108, 1115 (9th Cir. 2017) (quotation marks omitted; emphasis added and omitted)). Sitting en banc in Muransky, we similarly emphasized (as already noted) that the fit between a plaintiff‘s statutory claim and “a pedigreed common-law cause of action need not be perfect.” 979 F.3d at 926. And most recently, the Supreme Court underscored the point in TransUnion: “In looking to whether a plaintiff‘s asserted harm has a ‘close relationship’ to a harm traditionally recognized as providing a basis for a lawsuit in American courts, we do not require an exact duplicate.” 141 S. Ct. at 2204 (quoting Spokeo, 578 U.S. at 341).3
But the question remains: If (as we now know for certain from TransUnion) Article III doesn‘t require a precise fit between an alleged intangible harm and a common-law tort, what does it require? The Supreme Court has never squarely answered that question, but lower-court decisions—both our sister circuits’ and our own—offer useful guidance. Courts considering the question have concluded that under Spokeo—and in two more recent instances, under TransUnion—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. For reasons we
will explain, under this sensible and uncontroversial approach, Hunstein has standing here.
First, though, the “kind, not degree” cases. We begin our survey with Judge O‘Scannlain‘s opinion for the Ninth Circuit on remand from the Supreme Court in Spokeo. Importantly for our purposes, he explained there that Spokeo‘s “close relationship” test requires that an intangible harm be “at least closely similar in kind to others that have traditionally served as the basis for lawsuit.” Robins, 867 F.3d at 1115 (emphasis added). The Ninth Circuit thus held that although the Fair Credit Reporting
Now-Justice Barrett‘s opinion for the Seventh Circuit in Gadelhak v. AT&T Services, Inc., 950 F.3d 458 (7th Cir. 2020)—which, notably, the Supreme Court cited with approval in TransUnion—is similar, if even more explicit. In holding there that a plaintiff‘s allegation that he had received several unwanted text messages in violation of the Telephone Consumer Protection Act constituted a concrete injury for Article III purposes, the court emphasized—just as Judge O‘Scannlain had—that “when Spokeo instructs us to analogize to harms recognized by the common law, we are meant to look for a ‘close relationship’ in kind, not degree.” Id. at 462 (emphasis added). In particular, the Seventh Circuit held that the harm resulting from the unwelcome text messages bore a sufficient relationship to the tort of intrusion upon seclusion, even though it recognized that “[a] few unwanted automated text messages may be too minor an annoyance to be actionable at common law.” Id. at 463. The key point, the court emphasized, was that “such texts nevertheless pose the same kind of harm that common-law courts recognize.” Id. (emphasis added).
Other courts have decided standing cases in the wake of Spokeo in the same basic manner. For instance, in holding that a single unsolicited text message in violation of the TCPA bore a close relationship to the common-law tort of public nuisance, the Fifth Circuit—in an opinion by Judge Oldham—freely acknowledged that the statute didn‘t duplicate the common-law tort in every jot and tittle. See Cranor v. 5 Star Nutrition, L.L.C., 998 F.3d 686, 690 (5th Cir. 2021). In particular, the court held that although the harm alleged didn‘t “interfere with those who come in contact with it in the exercise of a public right or . . . otherwise affect[] the interests of the community at large“—as is required for public-nuisance claims, see Restatement (Second) of Torts § 821B cmt. g (1979)—the plaintiff‘s allegations had “enough” of a relationship to the common-law tort, 998 F.3d at 692. In so holding, the Fifth Circuit emphasized that a court‘s concreteness inquiry should be “focused on types of harms protected at common law, not the precise point at which those harms become actionable.” Id. at 693 (quoting Krakauer v. Dish Network, L.L.C., 925 F.3d 643, 654 (4th Cir. 2019)).
In just the same way, the Eighth Circuit has held that the harm identified by
Likewise, in In re Horizon Healthcare Services Inc. Data Breach Litigation, 846 F.3d 625 (3d Cir. 2017), the Third Circuit determined that violations of certain provisions of the FCRA governing credit-card companies’ dissemination of personal information bore a close relationship to invasion-of-privacy torts. In doing so, the court acknowledged that although neither the provisions in the FCRA nor the plaintiff‘s allegations involved the dissemination of
Most recently—and in fact, since the Supreme Court‘s TransUnion decision—the Tenth Circuit held in Lupia v. Medicredit, Inc. that the harm resulting from a single phone call bore a close relationship to the tort of intrusion upon seclusion. See id. at 1191. The court there emphasized that “[t]hough a single phone call may not intrude to the degree required at common law, that phone call poses the same kind of harm recognized at common law.” Id. at 1192 (emphasis in original). In so holding, the Tenth Circuit distinguished TransUnion; it emphasized that the TransUnion defendants hadn‘t published tortious words and, accordingly, that the harm identified by the plaintiffs there “differed in kind” from the harm of defamation. Id.4
This Court‘s lone foray into the “kind“-“degree” waters—while not perfectly free of ambiguity—is consistent with our sister circuits’ decisions. In Salcedo v. Hanna, 936 F.3d 1162 (11th Cir. 2019), we held that receipt of a single unwelcome text message in violation of the TCPA did not bear a sufficiently close relationship to any of a handful of common-law torts. Id. at 1171. To that extent, we reached a bottom-line conclusion different from those later reached by the Fifth and Seventh Circuits in Cranor and Gadelhak, respectively. More important for present purposes than the result in Salcedo, though—this isn‘t a TCPA case, after all—is the court‘s analysis. To be sure, the opinion there suggested in one place that the plaintiff‘s allegations “f[e]ll short of th[e] degree of harm” that intrusion upon seclusion ordinarily entails, see id. at 1171, and in another that a “significant[]” difference in “degree” might disqualify an intangible-injury plaintiff, see id. at 1172. But the balance of the opinion emphasized that only an alleged harm that is “categorically distinct” from a common-law comparator would scuttle a plaintiff‘s standing. Id. Concerning the torts of trespass and nuisance, for instance, the panel stressed that they were different from the plaintiff‘s alleged harm “both in kind and in degree.” Id. at 1171. So too, the panel said, with respect to invasion of privacy (generally) and intrusion upon seclusion, “an examination of those torts reveals significant differences in the kind and degree of harm they contemplate providing redress for.” Id. at 1172 (emphasis added). Perhaps most tellingly,
As we understand it, then, Salcedo does not require that a plaintiff‘s alleged harm be similar in both kind and degree to a common-law tort. Nor could it, of course, at least consistently with binding precedent. It‘s difficult to imagine a circumstance in which a plaintiff‘s harm is similar in both kind and degree to a common-law tort and yet is not precisely the same. A similar-in-both-kind-and-degree interpretation thus can‘t be reconciled with Spokeo‘s description of a “close“—but not identical—relationship, see 578 U.S. at 341, Muransky‘s observation that the fit between a plaintiff‘s statutory claim and “a pedigreed common-law cause of action need not be perfect,” 979 F.3d at 926, or TransUnion‘s reminder that “we do not require an exact duplicate” between the alleged injury and a traditionally recognized harm, 141 S. Ct. at 2204.5
b
Under this sensible (and seemingly conventional) approach to Spokeo‘s close-relationship test—namely, requiring an intangible injury to be of the same kind as a harm actionable at common
law but not necessarily the same degree—Hunstein has standing here. Hunstein has alleged a harm similar in kind to the common-law tort of public disclosure of private facts: Under that tort, “[o]ne who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.” Restatement (Second) of Torts § 652D (1977). Again, Hunstein claims that the debt collector, Preferred, “disclosed” what he calls “sensitive medical information“—including his minor son‘s name and prior medical treatment—to “the employees of an unauthorized third-party mail house,” CompuMail. That means, based on the allegations of the complaint—which, again, we must accept as true for purposes of appeal—that some measure of disclosure in fact occurred. See, e.g., Munson v. Lathrop, 96 Wis. 386, 380 (1897) (“The writing of the message, and the delivery of it by him to the [telegraph] company for transmission, as mentioned, was a publication of the same.“). And, it seems to us, that disclosure of intensely private information—including, most notably, the status of Hunstein‘s debt, his minor son‘s name, and that his debt arose from his son‘s medical treatment—could clearly offend a reasonable person and is not of legitimate public concern.6 To be sure, Preferred‘s disclosure of Hunstein‘s private information to
CompuMail‘s employees might have been less
A unique wrinkle of this case—and in particular, its litigation history—bears on and confirms our conclusion. Publicity of the sort that underlies the tort of public disclosure of private facts entails communication, see
Finally, it is important to remember (again) that the question we face here is not whether Hunstein has stated a claim for public disclosure of private facts but, rather, whether the statutory violation that he has alleged bears a sufficiently “close relationship” to that common-law tort. See, e.g., In re Horizon, 846 F.3d at 639 (“We are not suggesting that Horizon‘s actions would give rise to a cause of action under common law.“). For reasons explained in text, we hold that it is. Two points bear additional mention here. First, as we recognized long ago in summarizing Louisiana law, the “oppressive treatment of a debtor, including the unreasonable giving of undue publicity to private debts, has been held to be an invasion of the debtor‘s right of privacy.” Cunningham v. Sec. Inv. Co. of St. Louis, 278 F.2d 600, 604 (5th Cir. 1960). And that appears to be the general rule. See Annotation, Public Disclosure of Person‘s Indebtedness as Invasion of Privacy, 33 A.L.R.3d 154, at § 2[a] (1970 & 2021 Supp.) (“The giving of unreasonable publicity to private debts has been generally recognized as an actionable invasion of the debtor‘s right of privacy.“). Second, there is no one-size-fits-all formula for determining just how widespread the dissemination has to be under the common law: “[T]he extent of the required publicity to support a claim of public disclosure of private facts varies from jurisdiction to jurisdiction.” Fernandez-Wells v. Beauvais, 983 P.2d 1006, 1009 (N.M. App. 1999); see also, e.g., Karch v. BayBank FSB, 794 A.2d 763, 774 (N.H. 2002) (“[D]etermining whether a disclosure of a private matter has become one of public knowledge does not, as a matter of law, depend on the number of people told. Whether publicity is achieved by broadcasting something private to a few people or to the masses is a conclusion best reached by the trier of fact.“). These, as we say in text, are matters of “degree.” (1977), which in turn requires “that one person has brought an idea to the perception of another.”
One last thing: The dissent separately faults us for giving the tort‘s second and third elements—offense and public-concern, see supra at 19, short shrift, see Dissenting Op. at 7, 11-14. We spend comparatively—and we think appropriately—little time on them because it seems to us painfully obvious that they are satisfied, at least for standing‘s “close relationship” purposes. Cf., e.g., Wolfe v. Schaefer, 619 F.3d 782, 784 (7th Cir. 2010) (stating that “unreasonable publicity given to another‘s private life” is “illustrated by,” for example, “the unauthorized publicizing of a person‘s medical condition” or his “personal finances“); Biederman‘s of Springfield, Inc. v. Wright, 322 S.W.2d 892, 894 (Mo. 1959) (stating that “the status of [a] debt owed” is “a private matter . . . in which the general public had, and could have, no legitimate interest,” and that announcing that information “would be offensive to persons of ordinary sensibilities“). In any event, in response to the dissent‘s critique, we will explain ourselves at greater length, reiterating that the question on the table is not whether Hunstein can make out a claim for public disclosure of private facts, but rather whether the harm addressed by the
With respect to the second element—whether publicizing the information would be highly offensive to a reasonable person—the dissent concludes that, because it “was not highly offensive at common law” for a creditor to “inform[] employers of an employee‘s debt,” the communication of Hunstein‘s financial information and his minor son‘s name and medical-care-related information to a third party can‘t be, either. Dissenting Op. at 11-12. For at least two reasons—even aside from the fact that there‘s no issue here about disclosure to an employer—we think that‘s wrong.
First, and most conspicuously, the dissent ignores that Preferred communicated more—and more sensitive—information than just Hunstein‘s status as a debtor; it also included his minor son‘s name and the fact that the debt arose out of the son‘s medical care. Second, assuming that the dissent means to say that disclosing Hunstein‘s minor son‘s name and medical-care-related information (or even Hunstein‘s own status as a debtor) to CompuMail‘s employees wouldn‘t be highly offensive to a reasonable person, we fail to see how publicizing that information is different in kind—rather than in degree only—from prototypically offensive publications. If, for instance, Preferred had disclosed Hunstein‘s son‘s underlying “medical condition,” no one would dispute the offense element. See Wolfe, 619 F.3d at 784. And if Preferred had announced Hunstein‘s debt to a room full of strangers, that too would be sufficiently offensive. Wright, 322 S.W.2d at 894. Thus, even accepting the dissent‘s premise that Preferred‘s disclosure in this case would fall short of giving Hunstein a winning tort claim, it‘s sufficient to provide standing here given its proximity in degree to paradigmatic “highly offensive” publications.
Turning to the third element—whether the matter at issue is of legitimate public concern—we think that the dissent simply misunderstands its operation. The dissent seems to suggest that whether a topic is of legitimate public concern depends on the audience to whom the information is communicated. See Dissenting Op. at 13 (“[T]rying to apply the third element . . . is nonsensical because the public does not know anything about Hunstein‘s debt.“). That is incorrect. See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 762 (1985) (analyzing whether information was of public concern, acknowledging the “individual interest” of the “specific business audience” to which information was conveyed, but not factoring that into the “public concern” determination). To the contrary, the Supreme Court‘s free-speech cases—which expressly incorporate
On a proper understanding, applying the public-concern element here isn‘t “nonsensical,” Dissenting Op. at 13—it‘s just remarkably straightforward. Members of the public don‘t and couldn‘t have any legitimate interest in learning about Hunstein‘s private financial matters, nor do they possess a legitimate interest in learning his minor son‘s name or medical-care-related information. Compare Greenmoss, 472 U.S. at 762 (holding that a “credit report concerns no public issue“), and Wright, 322 S.W.2d at 894 (stating that “the public . . . could have[] no legitimate interest” in “the status of [a] debt owed“), with Snyder, 562 U.S. at 454-55 (holding that signs protesting “the political and moral conduct of the United States and its citizens” touched on matters of public concern), and Cox Broad. Corp. v. Cohn, 420 U.S. 469, 492 (1975) (“The commission of crime, prosecutions resulting from it, and judicial proceedings arising from the prosecutions . . . are without question events of legitimate concern to the public . . . .“). Hunstein‘s status as a debtor—to say nothing of his minor son‘s name and medical-care-related information—is not of public concern because it doesn‘t “relat[e] to any matter of political, social, or other concern to the community,” nor is it “a subject of general interest and of value and concern to the public.” Snyder, 562 U.S. at 453 (quotation marks omitted).
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The Supreme Court‘s decision in TransUnion looms large, of course. As we have already explained, the Court there swore off any suggestion that Spokeo‘s close-relationship criterion requires that a plaintiff‘s asserted harm to be an “exact duplicate” of a common-law cause of action. 141 S. Ct. at 2204. And as we have also explained, the “kind, not degree” line that courts have drawn nicely captures the golden mean between close and not exact. But given its recency, TransUnion warrants a closer look.
In that case, a credit reporting agency compiled personal and financial information about individual consumers, created consumer reports, and then sold those reports to entities that requested information about the consumers. 141 S. Ct. at 2201. TransUnion, the agency, introduced an add-on product, OFAC Name Screen Alert, that compared an individual consumer‘s name to a list maintained by the U.S. Treasury Department‘s Office of Foreign Assets Control and placed an alert on the credit report if the consumer‘s name was a potential match. Id. A class of consumers with OFAC alerts on their accounts sued TransUnion under the
The answer, the Supreme Court held, depended on the particular class members’ allegations under
In a footnote, the Court acknowledged the plaintiffs’ “forfeited” argument that TransUnion had “published” their information both to its own employees and to the vendors that printed and sent the mailings that the class members received. Id. at 2210 n.6 (emphasis added). As relevant here, the Court explained (citing one of our unreported decisions, Mack v. Delta Air Lines, Inc., 639 F. App‘x 582 (11th Cir. 2016)) that American courts had not “necessarily recognized disclosures to printing vendors as actionable publications” and suggested that, in such an instance, the plaintiff would need to present evidence that the defendant had “brought an idea to the perception of another” and that “the document was actually read and not merely processed.” 141 S. Ct. at 2210 n.6 (emphasis added). It then said that “the plaintiffs’ internal publication theory circumvents a fundamental requirement of an ordinary defamation claim—publication—and does not bear a sufficiently ‘close relationship’ to the traditional defamation tort to qualify for Article III.” Id.
That last bit, we recognize, may seem—at least on its face—to be in some tension with our holding here. In fact, though, TransUnion‘s analysis—in particular, the part above the line—reaffirms Hunstein‘s standing. Preferred could, we suppose, point to TransUnion‘s footnote in support of its contention that its communication to CompuMail‘s employees was insufficiently “public” to bear a close relationship to the tort of public disclosure of private facts. But because the TransUnion plaintiffs raised the issue of publication to vendors “for the first time” in the Supreme Court, for which reason it was deemed “forfeited,” the Court‘s footnoted discussion about vendors is dictum. TransUnion, 141 S. Ct. at 2210 n.6; Cent. Green Co. v. United States, 531 U.S. 425, 431 (2001) (explaining that a discussion “not essential to [a court‘s] disposition of any of the issues contested [in the case]” is “unquestionably dictum“). Although we have acknowledged that “there is dicta and then there is dicta, and then there is Supreme Court dicta,” United States v. Watkins, 10 F.4th 1179, 1182 (11th Cir. 2021) (en banc) (quotation marks omitted), there are two good reasons why the TransUnion dictum doesn‘t control here.
First, we have to account for the cases’ different procedural postures. Because the case in TransUnion went to trial, the Supreme Court required that “the specific facts set forth by the plaintiff to support standing . . . be supported adequately by the evidence adduced at trial.” 141 S. Ct. at 2208. Here, by contrast, the case didn‘t proceed beyond the motion-to-dismiss stage, at which, of course, we must “accept[] the allegations in the complaint as true and constru[e] them in the light most favorable to the plaintiff.” Taylor v. Polhill, 964 F.3d 975, 979 (11th Cir. 2020) (quotation marks omitted). We thus have no “evidence” by which to evaluate whether anyone at CompuMail “actually read and not merely processed” Hunstein‘s sensitive information. TransUnion, 141 S. Ct. at 2210 n.6. What we do have, as already explained, are (1) Hunstein‘s allegation that Preferred “disclosed” his son‘s “sensitive medical information” to CompuMail‘s “employees” and (2) Preferred‘s concession that, in so doing, it “communicat[ed]” Hunstein‘s personal information to CompuMail, at least as that term is used in the
2
Although it presents a closer question, we conclude that “the judgment of Congress” also favors Hunstein. Congress, of course, expresses its “judgment” in only one way—through the text of duly enacted statutes. Even assuming that
It is true that we pointed in Trichell to the
is not a harm at which Congress was aiming.” Id. at 18. We disagree. First, that‘s not what Hunstein‘s complaint alleges—it asserts that his private information was conveyed to CompuMail‘s “employees,” not that it was “simpl[y] transmi[tted]” to him through a third party. Second, we are reluctant to draw a conclusive implication from passing references to an all-but-obsolete technology—one that, we note, Congress never expressly endorsed—that appear in different portions of the FDCPA, to override § 1692c(b)‘s plain language. Third, and again, it appears to us that the dissent is impermissibly collapsing standing with the merits. The dissent‘s theory seems to be that because Congress implicitly acquiesced in the use of intermediaries—or at least one such intermediary—Preferred didn‘t violate the FDCPA by using one. Maybe, maybe not. (More on the merits below.) But that goes to whether Hunstein has a valid claim under § 1692c(b), not whether he has standing to sue.
* * *
Because (1)
III
Having determined that Hunstein has standing to sue under
collection of any debt,” such that it violates
the collection of any debt” and relevant precedents show that it was and does. Preferred, conversely, urges us to adopt a “factor-based analysis” that shows that, it says, its communication with CompuMail was not “in connection with the collection of any debt.”
We begin with the plain meaning of the phrase “in connection with” and its cognate word, “connection.” Dictionaries have adopted broad definitions of both. Webster‘s Third defines “connection” to mean “relationship or association,” Connection, Webster‘s Third New International Dictionary at 481 (1961), and the Oxford Dictionary of English defines the key phrase “in connection with” to mean “with reference to [or] concerning,” In Connection With, Oxford Dictionary of English at 369 (2010). Usage authorities further explain that the phrase “in connection with” is “invariably a vague, loose connective.” Bryan A. Garner, Garner‘s Dictionary of Legal Usage 440 (3d ed. 2011).
Preferred‘s transmittal to CompuMail included specific details regarding Hunstein‘s debt: Hunstein‘s status as a debtor, the precise amount of his debt, the entity to which the debt was owed, and the fact that the debt concerned his son‘s medical treatment, among other things. It
Preferred resists that conclusion on three different grounds, which we address in turn.
A
First, Preferred relies on our interpretation of another
Relying on Caceres and Reese—both of which, again, addressed
When determining whether a communication was made in connection with the collection of a[ny] debt, the courts look to the language of the communication itself to ascertain whether it contains a demand for payment and warns of additional fees or actions if payment is not tendered. Consequently, when determining whether the transmission of information to a third party constitutes a violation of the
FDCPA , it is important to consider whether the communication makes an express or implied demand for payment.
The district court‘s conclusion that the phrase “in connection with the collection of any debt” necessarily entails a demand for payment defies the language and structure of
The upshot is that the phrase “in connection with the collection of any debt” in
Second, and relatedly, the district court‘s interpretation renders yet another portion of
The district court seems to have been led astray by its reliance on decisions interpreting
phrase “in connection with the collection of any debt” must necessarily be the same in
B
Preferred separately urges us to adopt the holistic, multifactor balancing test that the Sixth Circuit decreed in its unpublished opinion in Goodson v. Bank of America, N.A., 600 F. App‘x 422 (6th Cir. 2015). That test counsels courts confronting
- the nature of the relationship of the parties;
- whether the communication expressly demanded payment or stated a balance due;
- whether it was sent in response to an inquiry or request by the debtor;
- whether the statements were part of a strategy to make payment more likely;
- whether the communication was from a debt collector;
- whether it stated that it was an attempt to collect a debt; and
- whether it threatened consequences should the debtor fail to pay.
Goodson, 600 F. App‘x at 431. We decline Preferred‘s invitation for two related reasons.
First, and perhaps most obviously, Goodson and the cases that have relied on it concern
reading risks rendering meaningless, while the latter does not, and (2) operationally, in that they ordinarily involve different parties. Goodson‘s seventh factor—whether the communication threatened consequences should the debtor fail to pay—illustrates this point. It makes little sense for a debt collector to threaten consequences should the debtor fail to pay in a communication that is not sent to the debtor himself.
Second, we believe that in the context of
C
Lastly, Preferred makes what we‘ll call an “industry practice” argument. It contrasts what it says is the widespread use of mail vendors like CompuMail and the relative dearth of FDCPA suits against them. More particularly, Preferred identifies cases involving mail vendors and emphasizes that none of them holds that a debt collector‘s mail vendor violated the FDCPA. True enough, but none of the cases that Preferred cites involved
One final (and related) point: It‘s not lost on us that our interpretation of
IV
To sum up, with the benefit of the Supreme Court‘s decision in TransUnion, we hold that Hunstein has Article III standing to bring his claim under
REVERSED and REMANDED.
TJOFLAT, Circuit Judge, Dissenting:
When we originally held that Hunstein had standing, the Supreme Court had not yet issued its opinion in TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021). Now, with the benefit of the Supreme Court‘s reasoning in TransUnion, I have changed my mind because this Court‘s standing analysis sweeps much more broadly than TransUnion would allow.
I.
In order to satisfy the injury-in-fact requirement of standing, the plaintiff‘s harm must be concrete and particularized. A concrete harm can be a tangible harm, a material risk of harm, or an intangible harm.
Now, I turn to the overlay TransUnion gave us. In TransUnion, at issue was
The plaintiffs in TransUnion were 8,185 people who claimed that TransUnion, a consumer reporting agency, “failed to use reasonable procedures to ensure the accuracy of their credit files” under
On that basis, the Supreme Court used the Spokeo analysis to determine that as to the 1,853 class members whose reports were published, TransUnion‘s violation of
TransUnion stands for the proposition that the Spokeo analysis for intangible harms based on the violation of a statute—that is, looking at history and the judgment of Congress—is individualized for every plaintiff‘s injury. Just because some plaintiffs’ injuries will have a common-law analogue and are the very kind of injuries Congress was trying to prevent does not mean that other plaintiffs, who allege a violation of the very same statute, will get a golden ticket to standing without also satisfying what Spokeo requires.
II.
A. History
I start with the premise that the FDCPA did not mean to eliminate debt collection practices. It meant to eliminate abusive debt collection practices. And that difference should animate how we view standing in this case.
This Court‘s opinion today acknowledges that Spokeo guides our analysis of Hunstein‘s injury, but it goes off the rails because it ignores what TransUnion requires a plaintiff to allege in the context of an intangible harm—facts that allow us to find a common-law analogue to the alleged statutory violation. The Court pays lip service to TransUnion by focusing on two points that I deem to be ancillary to this case‘s decision: 1) TransUnion does not require an exact match between the harm caused by the statutory violation and the common-law analogue,2 Majority Op. at 9, 12, and 2) TransUnion‘s footnote six does not foreclose finding public disclosure of private facts in this case where Preferred sent Hunstein‘s information to its mail vendor, CompuMail,3 Majority Op. at 26-29.
Reminding us that TransUnion does not demand a perfect match between the common-law analogue and the statutory violation, the Court uses Hunstein‘s allegation that his “sensitive medical information” was sent to “the employees of an unauthorized third-party mail house” to hold that the violation of the statute Hunstein experienced was analogous to public disclosure of private facts. Majority Op. at 19. The tort of public disclosure of private facts is defined as follows: “One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the
The Court‘s opinion tries to explain how Hunstein‘s alleged statutory violation is “public,” such as to fit into the tort of public disclosure of private facts. It says that ”some measure of disclosure in fact occurred” based on Hunstein‘s allegations that employees of the mail vendor received Hunstein‘s information from Preferred. Majority Op. at 19-20 (emphasis in original). Apparently, the Court thinks that ”some measure of disclosure” is close enough to publicity to find a common-law analogue with the tort of public disclosure of private facts. Majority Op. at 19.
The Court‘s opinion gives one whole sentence to the other two elements of the tort: whether the publicity would be highly offensive to a reasonable person and whether it would be of legitimate concern to the public. This is because the last two elements of the tort rise and fall with the first element of the tort, publicity. The Court‘s common-law analogue analysis is deficient because Hunstein‘s allegations fail the first element and necessarily then fail all the other elements. There was no publicity in this case. The only entity to which Preferred transmitted Hunstein‘s information was CompuMail. This certainly is not to the public at large. Communication of a fact to “a small group of persons” is not publicity.
Restatement (Second) of Torts § 652D cmt. a. (1977). Cases involving this tort have implied that “the invasion of privacy [including public disclosure of private facts] requires publicity in the broad, general sense of the word ‘public.‘” Tureen v. Equifax, Inc., 571 F.2d 411, 418 (8th Cir. 1978).
In a last-ditch effort to try to explain how Hunstein‘s allegations amount to publicity, the Court says that “Preferred conceded” that “its transmission of Hunstein‘s information to CompuMail constituted a ‘communication,’ at least as that term is used in the FDCPA.” Majority Op. at 22. The Court finds this significant because publicity for the tort of public disclosure of private facts “entails communication.” Majority Op. at 21. The Court then says that this concession “underscores that any differences between Hunstein‘s alleged harm and the tort of public disclosure of private facts are matters of degree, not kind.” Majority Op. at 22.
I am baffled by this reasoning. This is like saying that sugar cookie batter is the same thing as chocolate chip cookie batter because sugar cookie batter would be chocolate chip cookie batter if you added chocolate chips. Of course, communication could lead to publicity if the communication was to a large group of people, such as to be public. But communication can also be private, and just because it could be public does not mean that it actually was public. Preferred‘s concession that its transmission to CompuMail was a communication
The Court‘s analysis of the last two elements is wholly contained here: “And, it seems to us, that disclosure of intensely private information—including, most notably, the status of Hunstein‘s debt, his minor son‘s name, and that his debt arose from his son‘s medical treatment—could clearly offend a reasonable person and isn‘t of legitimate public concern.” Majority Op. at 19. The Court‘s dearth of analysis to two of the three necessary elements of the tort of public disclosure of private facts signals the sheer misfit between sending debt collection notices through a mail vendor and the tort itself. I also note that the Court assumes that what is highly offensive to a reasonable person should be judged by its own opinion of what is highly offensive to a reasonable person without reference to the common law conceptions of debt.
And, at common law, debt notifications to third parties were not highly offensive to a reasonable person. For instance, at common law, a creditor did not violate a debtor‘s right to privacy when it informed employers of an employee‘s debt. See, e.g., Midwest Glass Co. v. Stanford Devs. Co., 339 N.E.2d 274, 277 (Ill. Ct. App. 1975) (“[A] creditor has a right to take reasonable action to pursue his debtor and persuade payment, although the steps taken my result in some invasion of the debtor‘s privacy.“); Housh v. Peth, 133 N.E.2d 340, 344 (Ohio 1956); Patton v. Jacobs, 78 N.E.2d 789, 792 (Ind. App. 1948) (“The fact that in the usual course of business the communication may pass through the hands of clerks or stenographers, whether in the employ of the writer or the addressee, does not alter” the conclusion that creditors may communicate with employers about the debts of an employee.).
Under the Court‘s theory, this sort of debt notification to a debtor‘s employer would be “public” because at least “some measure of disclosure” occurred. I cannot tell whether, in the eyes of the Court, it would be highly offensive to a reasonable person or of legitimate public concern because the Court has provided no test by which to evaluate whether disclosure about debt would be highly offensive to a reasonable person or of legitimate public concern. What I can tell is that it was not highly offensive at common law. This is so because it was “understood that the right of privacy does not extend so far as to subvert those rights which spring from social conditions, including business relations. By becoming a member of society one surrenders those natural rights which are incompatible with social conditions.” Munden v. Harris, 134 S.W. 1076, 1079 (Mo. Ct. App. 1911).
The Court cites with approval Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 462 (7th Cir. 2020), for the proposition that the common-law harm and the statutory violation need to be of the same kind but not necessarily of the same degree. Majority Op. at 13. Leave aside the fact that Gadelhak specifically explained that it saw standing in that case differently from how the Eleventh Circuit did in Salcedo v. Hanna, 936 F.3d 1162, 1172 (11th Cir. 2019). The statutory violation in Gadelhak was that the plaintiff had received five unwanted text messages from AT&T. The common-law analogue to this statutory violation, then-Judge Barrett explained, was intrusion upon seclusion. Then-Judge Barrett explained that unwanted telephone calls had long been deemed to qualify for the tort of intrusion upon seclusion. Gadelhak, 950 F.3d at 462. So, she considered unwanted text messages to be simply the latest form of intrusion upon seclusion. See id.
B. Judgment of Congress
But, even if we adopted the Court‘s distant-relative test and held that Hunstein‘s alleged statutory violation is analogous to the public disclosure of private facts, Congress seemed to explicitly envision the role of intermediaries, like mail vendors, in the statutory scheme. In the context of the FDCPA, not all transmissions to third parties are suspect. The party to whom Hunstein‘s personal information was sent is no stranger. It is the entity responsible for mailing out letters on behalf of Preferred. We can look to
These statutes impose restrictions, for instance, on the use of telegrams when debt collectors contact debtors. This set of restrictions presupposes that debt collectors could use telegrams, even though that means the contents of the telegram would be transmitted through a telegram operator. Congress did not have a problem with that intermediary. In fact, it built rules around that system, as codified in
At a basic level, Congress‘s acquiescence in the use of intermediaries makes sense, because when individuals incur debt they are at least impliedly, and usually expressly,
I am certainly not saying that debtors consent to abusive practices, at which the FDCPA was aimed. But simple transmission of information along a chain that involves one extra link because a company uses a mail vendor to send out the letters about debt is not a harm at which Congress was aiming. Cf. White v. Goodman, 200 F.3d 1016, 1019 (7th Cir. 2000) (“The Fair Debt Collection Practices Act is not aimed at . . . companies that perform ministerial duties for debt collectors, such as stuffing and printing the debt collector‘s letters.“). Thus, Congress‘s judgment goes against finding standing for Hunstein, when CompuMail simply served as an intermediary to communication between debt collector Preferred and debtor Hunstein, like a telegram operator.
The Court‘s opinion plays the trick of defining very broadly the judgment of
The Court cannot look to Congress‘s general purposes in
provisions and finding about harms from telemarketing via text message generally: nothing.” (emphasis in original)).
III.
Finally, a word about damages. The Court‘s opinion acknowledges Trichell‘s observation that when an individual‘s rights are violated under the FDCPA, that individual is entitled to recover “any actual damage sustained.” Majority Op. at 31 (citing Trichell v. Midland Credit Mgmt., Inc., 964 F.3d 990, 1000 (11th Cir. 2020) and its explanation of
What the Court‘s opinion is telling us is that we should presume harm if a defendant violates
Notes
First, from where does the dissent draw its (critical) “small group” premise? Surely not from the face of the complaint, which simply alleges that Preferred sent Hunstein‘s private information to CompuMail‘s “employees.” We have no way of knowing, at this early stage in the litigation, how many of CompuMail‘s employees saw Hunstein‘s information or, for that matter, how many employees CompuMail even has. Especially given our obligation to “constru[e the complaint‘s allegations] in the light most favorable” to Hunstein, we simply can‘t engage in appellate fact-finding (or speculation) to second-guess his standing. Taylor v. Polhill, 964 F.3d 975, 979 (11th Cir. 2020) (quotation marks omitted).
Second, at what point—at what number of employees—would the dissent acknowledge that Preferred‘s communication to CompuMail was sufficiently “public” to confer standing? What if, for example, CompuMail had 50 employees and the communication went to all of them? 100? 500? 1,000? And whatever that public-ness threshold is, how can it legitimately be described as a difference in “kind” rather than “degree“? Let‘s posit, for instance, that the magic number is 100. Does that really mean that a plaintiff in Hunstein‘s shoes suffers one “kind” of harm (insufficient to confer standing) if 99 employees see his private information, and an altogether different “kind” of harm (sufficient In the libel context, another way to think about what is highly offensive to a reasonable person, courts generally have not considered disclosure of debt to be libelous per se. See 53 C.J.S. Libel and Slander, § 47 (“As a general rule, however, where the charge or imputation does not affect the person in a business, vocation, or profession, it is not libelous per se merely to publish a statement that the person owes money, or owes a debt which is past due, or to charge the person with failure or refusal to pay a just debt, or to state that there is a dispute between the parties as to a debt. Such a charge or imputation is actionable as libel only where it has caused special damages to the plaintiff and was made maliciously or in bad faith.“); 17 Ruling Case Law, 300 (“A mere statement that the defendant wants the plaintiff to pay his honest debts, uttered in the presence of the plaintiff, has been held not slanderous, on the ground that such a charge imputes no dishonorable conduct to the plaintiff.“); id. at 299 (“A writing containing the mere statement that a person owes a debt and refuses to pay does not in a legal sense necessarily expose the person of whom it is said to public hatred, contempt, or ridicule, nor does it degrade him in society, lessen him in public esteem, or lower him in the confidence of the community.“).
The dissent separately reasons from two references to the term “telegrams” in the FDCPA that Congress “acquiesce[d]” in “the use of intermediaries” generally. Dissenting Op. at 17. From there, it jumps to the conclusion that “simple transmission of information along a chain that involves one extra link because a company uses a mail vendor to send out the letters about debt
The Court wrongly minimizes Salcedo‘s analysis of both the kind and the degree of harm. For sure, we emphasized in Salcedo that “we [we]re not attempting to measure how small or large Salcedo‘s alleged injury [wa]s.” 936 F.3d at 1172. But we also repeatedly explained that looking at both the kind and the degree of harm informed our analysis. See id. at 1171 (“Salcedo‘s allegations fall short of this degree of harm.“); Id. (“We find [these torts] also to be distinct both in kind and in degree.“); Id. at 1172 (“[A]lthough Salcedo‘s allegations here bear a passing resemblance to this kind of historical harm, they differ so significantly in degree as to undermine his position.“); Id. (“An examination of those torts reveals significant differences in the kind and degree of harm they contemplate redress for.“).The dissent‘s argument rests on a fundamental misunderstanding of the terms “medium” in § 1692a(2) and “person” in § 1692c(b). To be sure, one dictionary definition of “medium” is “a person through whom a purpose is accomplished.” But just as surely, § 1692‘s text, context, and structure indicate that Congress intended “medium” to carry another Webster‘s-approved meaning: “a channel, method, or system of communication, information, or entertainment.” Medium, Webster‘s Third, supra, at 1403. First, and perhaps most obviously, that understanding comports with common sense. In the context of the FDCPA, it seems overwhelmingly likely that “medium” refers to different forms that debt-related communications might take—in the old days, letters and phone calls; more recently, emails, text messages, etc. Second, more technically, the dissent‘s medium-as-intermediary reading introduces its own interpretive problem. Section 1692c(b) prohibits communication in connection with the collection of any debt “with any person other than,” among others, “the consumer [or] his attorney.” But the dissent‘s suggested definition of “medium” plainly includes the consumer‘s attorney; he is a person through whom a purpose (the eventual collection of a debt) is accomplished. If, under the dissent‘s understanding, a consumer‘s attorney is (like a vendor) a “medium,” it would render § 1692c(b)‘s “with any person other than” clause unintelligible.
Applying the ordinary, commonsense definition of “medium” to denote a “channel, method, or system of communication“—which squares with statutory text and context—it follows that mail vendors like CompuMail are indeed “persons” within the meaning of §§ 1692a(2) and 1692c(b). Although the FDCPA doesn‘t define the term “person,” both § 1692a(2) and § 1692c(b) modify it with the expansive term “any,” which we have said “means all.” CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1223 (11th Cir. 2001). And § 1692c(b) goes on to refer to communications “with any person other than,” among others, “a consumer reporting agency.” If an inanimate credit reporting agency is a “person,” then it stands to reason that an inanimate mail vendor like CompuMail is, as well.
If Congress had been trying to eliminate mail vendors, it certainly has not been clear to the Bureau of Consumer Financial Protection (“CFPB“). The CFPB, which has authority to issue rules under the authority of the FDCPA, just issued new rules, which expressly contemplate the use of mail vendors in debt collection. 85 Fed. Reg. 76734, 76738 (Nov. 30, 2020) (to be codified at 12 C.F.R. § 1006), 86 Fed. Reg. 5766, 5845 n.446 (Jan. 19, 2021) (to be codified at 12 C.F.R. § 1006) (“In the Operations Study, over 85 percent of debt collectors surveyed by the Bureau reported using letter vendors.“). These rules become effective November 30, 2021.