The Eleventh Circuit, sitting en banc, recently applied TransUnion to hold that a plaintiff lacked Article III standing to bring claims under the Fair Debt Collection Practices Act. Hunstein v. Preferred Collection & Mgmt. Servs., Inc., No. 19-14434, 2022 WL 4102824 (11th Cir. Sept. 8, 2022)(en banc). The en banc decision reversed a controversial panel decision allowing a plaintiff to sue a collection agency for disclosing information about his debt to the agency’s mail vendor.
After the plaintiff did not pay a medical debt, the debt was transferred to the defendant, a collection agency. The collection agency in turn sent certain information about the plaintiff’s debt to its commercial mail vendor, which populated a form letter with the plaintiff’s debt information and mailed it to him. The plaintiff brought a putative class action alleging that the collection agency violated the FDCPA by disclosing information about his debt to a third party—the mail vendor. See 15 U.S.C. § 1692c(b).
The district court dismissed after finding no FDCPA violation. A panel of the Eleventh Circuit reversed after finding the plaintiff had standing. The panel held the plaintiff suffered a concrete injury because the FDCPA violation bore a close relationship to traditional invasion-of-privacy torts. The Eleventh Circuit then voted to take the case en banc.
The en banc court held that the plaintiff lacked standing under TransUnion, Spokeo, and its en banc decision in Muransky v. Godiva Chocolatier, Inc., 979 F.3d 917 (11th Cir. 2020). Under these cases, a harm is “concrete” for purposes of Article III standing if it bears a close relationship to a harm “traditionally recognized as providing a basis for lawsuits in American courts.”
Hunstein is significant because it adopted an element-by-element comparison to assess whether the new harm is similar enough to the old harm. If the new harm is “missing an element essential to liability under the comparator tort,” it is not sufficiently concrete to confer standing. Hunstein, 2022 WL 4102824, at *3 (internal quotation marks omitted). Applying that test, the court held that the tort of public disclosure required publicity, but the alleged disclosure of the plaintiff’s debt to a mail vendor was not “public” enough to constitute publicity. Because a required element was missing, the FDCPA violation was not similar enough to a traditional tort to be a concrete harm under TransUnion.
Hunstein again confirms that TransUnion can be a powerful tool for defendants facing putative class actions alleging bare statutory violations.