A debt collector electronically transmitted data concerning a consumer’s debt — including his name, his outstanding balance, the fact that his debt resulted from his son’s medical treatment, and his son’s name — to a third-party vendor. The third-party vendor then used the data to create, print, and mail a “dunning” letter to the consumer. The consumer filed suit alleging that, in sending his personal information to the vendor, the debt collector had violated the Fair Debt Collection Practices Act, which, with certain exceptions, prohibits debt collectors from communicating consumers’ personal information to third parties in connection with the collection of any debt. The District Court rejected the consumer’s reading of 15 U.S.C. §1692c(b) and dismissed his suit. On appeal, the Eleventh Circuit was called upon to consider, as a threshold matter, whether a violation of §1692c(b) gives rise to a concrete injury-in-fact under Article III.
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First, the Court addressed whether Hunstein had allege a tangible harm. “The complaint contains no allegations of physical injury, financial loss, or emotional distress. Instead, the complaint (1) conclusorily asserts that if 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. In his supplemental brief, Hunstein asks us to construe these assertions as allegations of emotional harm, arguing that he was humiliated, embarrassed, and suffered severe anxiety. But we have repeatedly held that an issue not raised in the district court and raised for the first time in an appeal will not be considered by this court. Hunstein thus cannot establish standing on the basis of a tangible harm.”
Next, the Court considered whether Hunstein could demonstrate standing by showing a risk of real harm. “While 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. Factual allegations that establish a risk that is substantial, significant, or poses a realistic danger will clear this bar. Put slightly differently, to constitute injury in fact, the threatened injury must be certainly impending. 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, or is certainly impending.”
Finally, the Court addressed whether Hunstein could establish standing through a statutory violation. “For more than a century, invasions of personal privacy have been regarded as a valid basis for tort suits in American courts…. More particularly, the term ‘invasion of privacy’ comprises an identifiable family of common-law torts – including, most relevantly here, public disclosure of private facts…. 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. Notably, the FDCPA’s statutory findings explicitly identify invasions of individual privacy as one of the harms against which the statute is directed. And to that end, the statutory provision under which Hunstein has sued here expressly prohibits a debt collector from communicating with any but a few persons or entities in connection with the collection of any debt. Although §1692c(b) isn’t identical in all respects to the invasion-of-privacy tort, we have no difficulty concluding that it bears a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts….
“Although it presents a closer question, we conclude that the judgment of Congress also favors Hunstein…. It’s true that we pointed in Trichell to the FDCPA’s language that a person may recover any actual damage sustained by such person as a result of an FDCPA violation and such additional damages as the court may allow, in 15 U.S.C. §1692k(a), as evidence of Congress’s judgment that violations of a different provision – §1692e – do not ipso facto constitute a concrete injury. We don’t read §1692k(a), though, as categorically limiting the class of FDCPA plaintiffs to those with actual damages – particularly where, as here, the FDCPA’s statutory findings expressly address the very harm alleged – an invasion of individual privacy.”
However, the defendant’s Petition for Rehearing En Banc was granted, and the panel’s decision has been vacated.
Hunstein v. Preferred Collection and Management Services, 994 F.3d 1341 (11th Cir. 2021),
vacated, rehearing en banc granted, 17 F.4th 1103 (11th Cir. 2021).
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