Ryan Six v. Iq Data International, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RYAN SIX, No. 23-15887

Plaintiff-Appellant, D.C. No.

2:22-cv-00203-

v. MTL

IQ DATA INTERNATIONAL, INC.,

OPINION

Defendant-Appellee.

Appeal from the United States District Court

for the District of Arizona

Michael T. Liburdi, District Judge, Presiding

Argued and Submitted May 17, 2024

Phoenix, Arizona

Filed February 24, 2025

Before: Susan P. Graber, Roopali H. Desai, and Ana de

Alba, Circuit Judges.

Opinion by Judge Desai

2 SIX V. IQ DATA INTERNATIONAL, INC.

SUMMARY *

Fair Debt Collection Practices Act

Reversing the district court’s dismissal for lack of

subject matter jurisdiction of an action under the Fair Debt

Collection Practices Act, and remanding for further

proceedings, the panel held that the plaintiff had Article III

standing to bring his claim under 15 U.S.C. § 1692c(a)(2),

which prohibits a debt collector from directly

communicating with a consumer in connection with the

collection of any debt when the collector knows that the

consumer is represented by an attorney.

The panel held that an individual who receives a letter in

violation of § 1692c(a)(2) has constitutional standing to

bring a claim. The panel concluded that both Congress’s

judgment in enacting the Fair Debt Collection Practices Act

and a comparison to traditionally recognized harms

established that the plaintiff suffered a concrete injury when

the defendant sent him a letter. Furthermore, the plaintiff’s

harm was both particularized and actual. Because receipt of

the letter in alleged violation of § 1692c(a)(2) inherently

violated the plaintiff’s privacy, he sufficiently alleged actual

harm, rather than a conjectural harm or bare procedural

violation. And there was no dispute that the remaining

elements of standing were met because there was a causal

connection between the injury and the conduct complained

of, and the relief sought would redress the intrusion.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

SIX V. IQ DATA INTERNATIONAL, INC. 3

The panel addressed additional issues in a separately

filed memorandum disposition.

COUNSEL

Russell S. Thompson IV (argued), Thompson Consumer

Law Group PC, Scottsdale, Arizona, for Plaintiff-Appellant.

Erin M. McManis (argued), Ember A. Van Vranken

(argued), and Joshua M. Bolen, Carpenter Hazlewood

Delgado & Bolen LLP, Tempe, Arizona, for Defendant-

Appellee.

OPINION

DESAI, Circuit Judge:

The Fair Debt Collection Practices Act (“FDCPA”)

prohibits debt collectors from engaging in certain practices,

including directly communicating with a consumer in

connection with the collection of any debt when the collector

knows that the consumer is represented by an attorney. See

15 U.S.C. § 1692c(a)(2). Ryan Six brought a claim against

IQ Data International, Inc. (“IQ”) under § 1692c(a)(2),

alleging that IQ sent him a debt verification letter after he

notified the company that all communications should be sent

to his attorney. The district court dismissed Six’s action for

lack of jurisdiction, ruling that he lacked Article III standing.

On appeal, Six challenges the district court’s dismissal for

lack of jurisdiction, as well as its denial of his motion to

strike affirmative defenses, its resolution of the parties’ joint

4 SIX V. IQ DATA INTERNATIONAL, INC.

discovery dispute based on attorney-client privilege, and its

modified grant of attorneys’ fees. We hold that an individual

who receives a letter in violation of § 1692c(a)(2) has

standing to bring a claim, and thus reverse the district court’s

dismissal for lack of jurisdiction and remand for further

proceedings. 1 In light of our ruling, we need not, and do not,

reach Six’s claim for the denial of his motion to strike

affirmative defenses. 2

BACKGROUND

IQ acquired a debt obligation for Six’s purported breach

of a residential lease. Six learned of the debt and, on August

18, 2021, mailed a letter to Equifax disputing the debt and

requesting documentation of it. The same day, Six’s counsel

mailed a letter directly to IQ providing notice that Six was

represented and that all correspondence should be sent to

counsel.

On September 2, 2021, IQ received Six’s dispute letter

and submitted an internal request to generate and send the

requested documentation to Six’s mailing address. The next

day, September 3, IQ updated its records to show that it had

processed Six’s counsel’s letter and that direct

communication should cease. But on that same day, IQ also

sent the letter with verification of the debt to Six’s mailing

address.

1

In a separately filed memorandum disposition, we affirm the district

court’s resolution of the parties’ joint discovery dispute and the court’s

modified grant of attorneys’ fees.

2

The parties may litigate the affirmative defenses on remand. And in any

event, Six is not precluded from appealing the district court’s denial of

his motion to strike in a future appeal.

SIX V. IQ DATA INTERNATIONAL, INC. 5

After receiving the letter, Six sued IQ in the District of

Arizona under 15 U.S.C. § 1692c(a)(2). Six and IQ filed

cross-motions for summary judgment. The district court

dismissed the action for lack of jurisdiction. It ruled that Six

lacked Article III standing because he could not show that

he had suffered an injury in fact. The district court reasoned

that the receipt of one unwanted letter was neither akin to the

traditional types of harm providing a basis for a lawsuit, nor

was it the type of abusive debt collection practice that the

FDCPA was intended to prevent. The district court did not

reach the other arguments in the parties’ cross-motions for

summary judgment and, instead, denied the remainder of the

motions for summary judgment as moot.

STANDARD OF REVIEW

We review de novo whether a plaintiff has standing. In

re Zappos.com, Inc., 888 F.3d 1020, 1024 (9th Cir. 2018).

ANALYSIS

Six claims that he has standing because he received an

unwanted letter from IQ after notifying IQ that all

correspondence should be sent to his attorney, resulting in

an invasion of his privacy interests. IQ claims that Six’s

alleged harm is insufficient to establish standing because it

is not analogous to the types of harm traditionally recognized

by American courts. To determine whether Six had standing

to bring his claim, we consider whether he “(1) suffered an

injury in fact, (2) that is fairly traceable to the challenged

conduct of the defendant, and (3) that is likely to be

redressed by a favorable judicial decision.” Van Patten v.

Vertical Fitness Grp., LLC, 847 F.3d 1037, 1042 (9th Cir.

2017) (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 338

(2016)).

6 SIX V. IQ DATA INTERNATIONAL, INC.

An “injury in fact” is “an invasion of a legally protected

interest that is concrete and particularized and actual or

imminent, not conjectural or hypothetical.” Spokeo, 578

U.S. at 339 (cleaned up) (quoting Lujan v. Defs. of Wildlife,

504 U.S. 555, 560 (1992)). To determine whether there is a

concrete injury, we consider two factors: (1) Congress’s

judgment and (2) a comparison of the alleged harm to harms

traditionally recognized by American courts. TransUnion

LLC v. Ramirez, 594 U.S. 413, 425–26 (2021). Tangible

harms, like physical or monetary loss, readily qualify as

concrete injuries, but “[v]arious intangible harms can also be

concrete.” Id. at 425. A harm is particularized if it affects the

plaintiff “in a personal and individual way.” Spokeo, 578

U.S. at 339 (quoting Lujan, 504 U.S. at 560 n.1).

We first turn to Congress’s judgment, which can be

“instructive” in determining whether there is a concrete

injury “because Congress is well positioned to identify

intangible harms that meet minimum Article III

requirements.” Id. at 341. Accordingly, we “must afford due

respect to Congress’s decision to . . . grant a plaintiff a cause

of action to sue over the defendant’s violation of [a] statutory

prohibition . . . In that way, Congress may ‘elevate to the

status of legally cognizable injuries concrete, de facto

injuries that were previously inadequate [at] law.’”

TransUnion, 594 U.S. at 425 (quoting Spokeo, 578 U.S. at

341). But the existence of a statutory cause of action does

not automatically create standing, and this court must decide

independently whether a concrete injury exists in the context

of the statutory violation. See id. at 426.

When Congress enacted the FDCPA, it recognized that

“[a]busive debt collection practices contribute

to . . . invasions of individual privacy.” 15 U.S.C. § 1692(a).

And with that knowledge, Congress expressly prohibited

SIX V. IQ DATA INTERNATIONAL, INC. 7

debt collectors from communicating directly with

consumers who the collectors know are represented by

counsel. Id. § 1692c(a)(2); see Ward v. NPAS, Inc., 63 F.4th

576, 581 (6th Cir. 2023) (finding that § 1692c(c) protects

consumer privacy). It follows, therefore, that receipt of a

letter from a debt collection agency is the type of

infringement on privacy interests that Congress

contemplated when it enacted the FDCPA. Congress’s

judgment thus supports Six’s claim that he suffered a

concrete injury in the context of the statute and has standing

to sue.

Next, we assess whether Six has “identified a close

historical or common-law analogue for [his] asserted

injury.” TransUnion, 594 U.S. at 424. The analogue to the

alleged injury must be a harm that is “traditionally

recognized as providing a basis for a lawsuit in American

courts.” Id. (cleaned up). Intrusion upon seclusion, which

protects the right of privacy, is one such example. Id. at 425;

see Van Patten, 847 F.3d at 1043 (“Actions to remedy

defendants’ invasions of privacy, intrusion upon seclusion,

and nuisance have long been heard by American courts, and

the right of privacy is recognized by most states.”).

Furthermore, the alleged harm need not be “an exact

duplicate” of a traditionally recognized harm to be

analogous. TransUnion, 594 U.S. at 424. A close analogue

exists when the alleged and traditionally recognized harm

are similar in “kind” rather than “degree.” Gadelhak v.

AT&T Servs., Inc., 950 F.3d 458, 462 (7th Cir. 2020) (citing

Spokeo, 578 U.S. at 340–42).

Courts have consistently found that the harm caused by

unwanted communications bears a close relationship to

intrusion upon seclusion. See, e.g., Van Patten, 847 F.3d at

1040–41, 1043 (holding two unwanted text messages in

8 SIX V. IQ DATA INTERNATIONAL, INC.

violation of the Telephone Consumer Protection Act

(“TCPA”) was a concrete injury); Wakefield v. ViSalus, Inc.,

51 F.4th 1109, 1117–18 (9th Cir. 2022) (affirming Van

Patten post-TransUnion); Gadelhak, 950 F.3d at 463;

Dickson v. Direct Energy, LP, 69 F.4th 338, 348–49 (6th Cir.

2023) (holding that one silently delivered voicemail in

violation of the TCPA was a concrete injury); Lupia v.

Medicredit, Inc., 8 F.4th 1184, 1191–93 (10th Cir. 2021)

(holding that an unwanted call and voicemail in violation of

the FDCPA was a concrete injury). In Ward, for example, a

debt collector called the plaintiff one time after the plaintiff’s

lawyer attempted to send a cease-and-desist letter to the

collector. 63 F.4th at 579. The plaintiff sued under

§ 1692c(a)(2), and the Sixth Circuit found that the kind of

harm caused by the unwanted call was closely related to

intrusion upon seclusion. Id. at 580–82. We see no

meaningful difference in this context between making a

phone call and sending a letter.

When Six notified IQ that it should communicate only

with his counsel, he clearly expressed a desire to be

undisturbed by IQ’s communications. And by sending a

letter after receiving Six’s notification, IQ created the kind

of “irritating intrusion[]” addressed by intrusion upon

seclusion. Gadelhak, 950 F.3d at 462. As other courts have

held, the fact that IQ sent only one letter does not change the

kind of harm caused. See Lupia, 8 F.4th at 1192 (holding that

a single phone call poses the same kind of harm as intrusion

upon seclusion, although it may not be sufficient to establish

liability). Accordingly, the harm alleged by Six poses “the

same kind of harm recognized at common law—an

unwanted intrusion into . . . plaintiff’s peace and quiet,” id.,

and the harm caused by an unwanted letter, in violation of

SIX V. IQ DATA INTERNATIONAL, INC. 9

§ 1692c(a)(2), is analogous to the harm caused by intrusion

upon seclusion.

IQ relies on the Seventh Circuit’s decision in Pucillo v.

National Credit Systems, Inc., 66 F.4th 634 (7th Cir. 2023),

to distinguish the kind of harm caused by unwanted letters

from that caused by other types of unwanted

communications. In Pucillo, the plaintiff sued a debt

collector under the FDCPA for sending him two letters

regarding a debt that had been discharged in bankruptcy. Id.

at 636. The court ultimately concluded that the two letters

Pucillo received were “too far afield from the traditional tort

of intrusion upon seclusion” to establish a concrete injury.

Id. at 641. In reaching its conclusion, the court explained that

the harm caused by the letters differed from that caused by

unwanted text messages:

Text messages may create an injury because

they can disrupt a person at anytime,

anywhere, thereby invading private

solitude . . . In contrast, postal mail is

delivered to a mailbox without interrupting

the recipient’s seclusion. Mail can be picked

up when, if, and how often the recipient

chooses, unlike a phone which is usually on

one’s person or close by throughout the day.

While receiving a letter can be an irritation,

we do not see an actionable analogy between

a letter delivered to a mailbox and automated

text messages delivered to one’s cell phone.

Id. (cleaned up).

We are unpersuaded by this distinction. The line drawn

by Pucillo rests on the degree of harm, rather than the kind

10 SIX V. IQ DATA INTERNATIONAL, INC.

of harm, and the Supreme Court has counseled against this

approach. See Gadelhak, 950 F.3d at 462 (“But 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.”); Pucillo, 66 F.4th at 644–45 (Lee, J.,

dissenting) (noting that the majority opinion’s standing

analysis erred by focusing on the number of letters received

and degree of intrusion caused by mail). Indeed, the Pucillo

court acknowledged that its analysis hinged on degree rather

than kind, commenting that it reserved ruling on “other kinds

of mailings [that] could impact seclusion more

significantly.” Pucillo, 66 F.4th at 640 n.3. Furthermore,

taking Pucillo’s distinction to its logical extreme

demonstrates that its line-drawing is misguided. Even a

consumer who receives hundreds of unwanted letters could

not establish a harm analogous to intrusion upon seclusion

simply because the letters could be picked up at the

recipient’s choosing. This cannot be the case. Regardless of

when it is picked up, an unwanted letter intrudes on the

recipient’s privacy and, thus, we are unpersuaded by

Pucillo. 3

In sum, both Congress’s judgment and a comparison to

traditionally recognized harms establish that Six suffered a

concrete injury when IQ sent him a letter. Furthermore, Six’s

harm is both particularized and actual. IQ’s letter was

delivered directly to Six, which affected him in a “personal

and individual way.” Spokeo, 578 U.S. at 339 (quoting

Lujan, 504 U.S. at 560 n.1). And because receipt of the letter

3

Similarly, the factual assumption underpinning Pucillo’s analysis is not

necessarily true: Nothing compels a person to look at text messages at

unwanted times of the day. Just as “[m]ail can be picked up when, if,

and how often the recipient chooses,” Pucillo, 66 F.4th at 641, so too can

text messages be viewed when, if, and how often the recipient chooses.

SIX V. IQ DATA INTERNATIONAL, INC. 11

in alleged violation of § 1692c(a)(2) inherently violated

Six’s privacy, he has sufficiently alleged actual harm, rather

than a “conjectural” harm or “bare procedural violation.”

Compare Spokeo, 578 U.S. at 342 (noting that a formatting

error in violation of the Fair Credit Reporting Act may not

result in actual harm), with Hall v. Smosh Dot Com, Inc., 72

F.4th 983, 988 n.5, 991 (9th Cir. 2023) (finding that a

violation of TCPA § 227(c) for texting a phone number on

the Do-Not-Call Registry established actual harm because an

unsolicited text is inherently an invasion of privacy). Thus,

Six suffered an injury in fact sufficient to establish standing

at this juncture of the case.

We also conclude that the remaining elements of

standing are met, a conclusion that IQ does not dispute.

There is a “causal connection between the injury and the

conduct complained of,” Lujan, 504 U.S. at 560, because it

was IQ’s letter itself that caused the intrusion on Six’s

privacy, see id. (explaining that traceability requires a

connection between the injury and defendant’s alleged

violation, rather than third-party action). And the relief

sought under the FDCPA, including declaratory relief,

statutory damages, and actual damages, would redress the

intrusion. Robey v. Shapiro, Marianos, & Cejda, L.L.C., 434

F.3d 1208, 1212 (8th Cir. 2006). In sum, the district court

improperly dismissed the action for lack of jurisdiction.

Six argues that we should grant summary judgment in

his favor if we hold that he has standing, but IQ argues that

remand is appropriate if we reverse the district court’s

dismissal for lack of jurisdiction. The district court is best

positioned to rule on the parties’ alternative arguments for

summary judgment in the first instance, and thus we agree

with IQ’s suggestion to remand for further proceedings

12 SIX V. IQ DATA INTERNATIONAL, INC.

consistent with our rulings. 4 See EB Holdings II, Inc. v. Ill.

Nat’l Ins. Co., 108 F.4th 1211, 1225 (9th Cir. 2024)

(declining to reach alternative arguments for summary

judgment in the first instance).

REVERSED AND REMANDED.

4

We do not consider the merits of Six’s claim against IQ, and our

holding does not foreclose the availability of the bona fide mistake

defense on remand. Indeed, the minimal amount of time between IQ’s

processing of the letter from Six’s attorney’s and IQ’s mailing of the

disputed letter, coupled with the fact that Six asked IQ for information

to be sent to him, raises serious questions about IQ’s liability.