Richard Hunstein v. Preferred Collection and Management Services, Inc.

USCA11 Case: 19-14434 Date Filed: 10/28/2021 Page: 1 of 65

[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 19-14434

____________________

RICHARD HUNSTEIN,

Plaintiff-Appellant,

versus

PREFERRED COLLECTION AND MANAGEMENT SERVICES,

INC.,

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:19-cv-00983-TPB-TGW

____________________

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2 Opinion of the Court 19-14434

Before JORDAN, NEWSOM, and TJOFLAT, Circuit Judges.

NEWSOM, Circuit Judge:

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 impres-

sion 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 infor-

mation” concerning a consumer’s debt—including not only his

name and outstanding balance, but also the fact that his debt re-

sulted 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

consumer filed suit alleging that, in sending his personal

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19-14434 Opinion of the Court 3

information to the vendor—and in particular, the complaint says,

to the vendor’s “employees”—the debt collector had violated 15

U.S.C. § 1692c(b), 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 § 1692c(b) and

dismissed his suit. On appeal, we must consider, as a threshold

matter, whether the consumer has adequately alleged that the debt

collector’s violation of § 1692c(b) caused him to suffer a concrete

injury in fact under Article III, and, on the merits, whether the debt

collector’s communication with its dunning vendor was “in con-

nection with the collection of any debt.”

We hold (1) that the violation of § 1692c(b) alleged in this

case gives rise to a concrete injury in fact under Article III, and

(2) that the debt collector’s transmittal of the consumer’s personal

information to its dunning vendor constituted a communication

“in connection with the collection of any debt” within the meaning

of § 1692c(b). Accordingly, we reverse the judgment of the district

court and remand for further proceedings.

I

Congress enacted the FDCPA “to eliminate abusive debt

collection practices by debt collectors” and “to protect consumers

against debt collection abuses.” 15 U.S.C. § 1692(e). To that end,

§ 1692c(b) of the FDCPA, titled “Communication with third par-

ties,” provides that—

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4 Opinion of the Court 19-14434

Except as provided in section 1692b of this title, with-

out 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 nec-

essary 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 report-

ing agency if otherwise permitted by law, the credi-

tor, the attorney of the creditor, or the attorney of the

debt collector.

15 U.S.C. § 1692c(b). The provision that § 1692c(b) cross-refer-

ences—§ 1692b—governs the manner in which a debt collector

may communicate “with any person other than the consumer for

the purpose of acquiring location information.” 15 U.S.C. § 1692b.

The FDCPA thus broadly prohibits a debt collector from com-

municating with anyone other than the consumer “in connection

with the collection of any debt,” subject to several carefully crafted

exceptions—some enumerated in § 1692c(b), and others in § 1692b.

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 as-

signed 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 han-

dle the collection. Preferred electronically transmitted to Compu-

Mail “sensitive medical information” about Hunstein—including,

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19-14434 Opinion of the Court 5

for instance, not only (1) his status as a debtor and (2) the exact bal-

ance 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 15 U.S.C. §§ 1692c(b), 1692f, and the Florida Con-

sumer Collection Practices Act, see Fla. Stat. § 559.72(5). As rele-

vant here, Hunstein alleged that Preferred violated the FDCPA

“when it disclosed information about his purported . . . debt to the

employees of an unauthorized third-party mail house.” The dis-

trict court dismissed Hunstein’s action for failure to state a claim,

concluding that he hadn’t sufficiently alleged that Preferred’s trans-

mittal to CompuMail violated § 1692c(b) because it didn’t qualify

as a communication “in connection with the collection of a[ny]

debt.” 1

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

1 The district court held for the same reason that Hunstein had not stated a

claim for a violation of § 1692f. The district court then declined to accept sup-

plemental jurisdiction over Hunstein’s state-law claim. Hunstein’s appeal ad-

dresses only the portion of his complaint relating to § 1692c(b).

2 Whether Hunstein has standing is a threshold jurisdictional question that we

review de novo. Debernardis v. IQ Formulations, LLC, 942 F.3d 1076, 1083

(11th Cir. 2019). We also “review the decision to dismiss Plaintiff’s complaint

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6 Opinion of the Court 19-14434

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). Article III of the Constitution grants federal courts

“judicial Power” to resolve “Cases” and “Controversies.” U.S.

Const. art. III, §§ 1–2. This case-or-controversy requirement,

which has been construed to embody the doctrine of standing,

“confines the federal courts to a properly judicial role.” Spokeo,

Inc. v. Robins, 578 U.S. 330, 338 (2016). The “irreducible constitu-

tional minimum” of Article III standing entails three elements: in-

jury in fact, causation, and redressability. Lujan v. Defs. of Wildlife,

504 U.S. 555, 560–61 (1992).

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

pursuant to Rule 12(b)(6) de novo, applying the same standard as the district

court.” Holzman v. Malcolm S. Gerald & Assocs., Inc., 920 F.3d 1264, 1268

(11th Cir. 2019). Accepting the complaint’s allegations as true and construing

the facts in the light most favorable to Hunstein, “the relevant inquiry is

whether Plaintiff has stated a ‘plausible claim for relief’ under the FDCPA.”

Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).

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19-14434 Opinion of the Court 7

subsidiary element of injury—a legally protected interest, concrete-

ness, 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 com-

plaint (1) conclusorily asserts that “[i]f a debt collector ‘conveys in-

formation 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

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8 Opinion of the Court 19-14434

unauthorized third-party has on consumers.” And on a (very) char-

itable reading, those statements might be construed to allege emo-

tional harm, which some courts have counted as a tangible injury

for Article III purposes. See Huff, 923 F.3d at 463. Regardless, be-

cause Hunstein has expressly disclaimed it, and because, as we ex-

plain in detail below, he has alleged a different kind of concrete in-

jury 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 stand-

ard—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 allega-

tion falls short of a risk that is “substantial, significant, or poses a

realistic danger,” Muransky, 979 F.3d at 933, or is “certainly im-

pending,” Clapper, 568 U.S. at 409.

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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 in-

jury 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 as-

serted harm has a ‘close relationship’ to a harm traditionally recog-

nized 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 ac-

tionable.” Muransky, 979 F.3d at 926. In particular—more on this

shortly—our en banc opinion in Muransky explains that the fit be-

tween 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.

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10 Opinion of the Court 19-14434

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 exist-

ence 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 hold-

ing 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.” 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 pri-

vacy, if the matter publicized is of a kind that (a) would be highly

offensive to a reasonable person, and (b) is not of legitimate con-

cern to the public.” Restatement (Second) of Torts § 652D (1977);

accord, e.g., 77 C.J.S. Right of Privacy and Publicity § 32; 62A Am.

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19-14434 Opinion of the Court 11

Jur. 2d Privacy § 79. Indeed, the Supreme Court itself has recog-

nized “the individual interest in avoiding disclosure of personal

matters” and that “both the common law and the literal under-

standings of privacy encompass the individual’s control of infor-

mation concerning his or her person.” Dep’t of Just. v. Reps.

Comm. for Freedom of the Press, 489 U.S. 749, 763 (1989) (citation

and quotation marks omitted).

Having established the historical pedigree of invasion-of-pri-

vacy 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 rea-

sons that follow, and having considered the Supreme Court’s re-

cent 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): Arti-

cle 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;

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12 Opinion of the Court 19-14434

emphasis added and omitted)). Sitting en banc in Muransky, we

similarly emphasized (as already noted) that the fit between a plain-

tiff’s statutory claim and “a pedigreed common-law cause of action

need not be perfect.” 979 F.3d at 926. And most recently, the Su-

preme 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 in-

stances, under TransUnion—a plaintiff need only show that his al-

leged 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

3 Of course, if Article III required a perfect match between an alleged harm

and a common-law tort, Congress could only replicate and codify existing

common-law causes of action—it would have no power to create enforceable

rights. That is not, and couldn’t be, the law. See Spokeo, 578 U.S. at 341 (ac-

knowledging “Congress’ role in identifying and elevating intangible harms”).

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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 Act’s cause of action

differed in key respects from the common-law torts of defamation

and libel—both of which, for instance, require that any disclosure

of false information be harmful to one’s reputation—the statute’s

cause of action bore a sufficiently “close relationship” for Article III

purposes. Id.

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 em-

phasized—just as Judge O’Scannlain had—that “when Spokeo in-

structs 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

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14 Opinion of the Court 19-14434

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 mes-

sages 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 acknowl-

edged 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-nui-

sance 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 Cir-

cuit emphasized that a court’s concreteness inquiry should be “fo-

cused on types of harms protected at common law, not the precise

point at which those harms become actionable.” Id. at 693 (quot-

ing Krakauer v. Dish Network, L.L.C., 925 F.3d 643, 654 (4th Cir.

2019)).

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In just the same way, the Eighth Circuit has held that the

harm identified by § 1692f(1) of the FDCPA—which prohibits debt

collectors’ attempts to collect amounts not actually owed—bears a

sufficiently close relationship to common law “unjustifiable-litiga-

tion torts,” including the tort of malicious prosecution. Demarais

v. Gurstel Chargo, P.A., 869 F.3d 685, 691 (8th Cir. 2017). Im-

portantly here, it did so notwithstanding the fact that an attempt to

collect a debt not owed differs from malicious prosecution in sev-

eral critical respects—perhaps most notably, that it doesn’t even

involve the invocation of judicial power. See id.

Likewise, in In re Horizon Healthcare Services Inc. Data

Breach Litigation, 846 F.3d 625 (3d Cir. 2017), the Third Circuit de-

termined that violations of certain provisions of the FCRA govern-

ing 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

information that was damaging to one’s reputation or otherwise

offensive—which, as already explained, privacy torts ordinarily re-

quire—the harms nonetheless satisfied Spokeo’s close-relationship

test. See id. at 639 (noting that “[w]e are not suggesting that Hori-

zon’s actions would give rise to a cause of action under common

law”).

Most recently—and in fact, since the Supreme Court’s

TransUnion decision—the Tenth Circuit held in Lupia v. Medi-

credit, Inc. that the harm resulting from a single phone call bore a

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close relationship to the tort of intrusion upon seclusion. See 8

F.4th 1184, 1191 (10th Cir. 2021). The court there emphasized that

“[t]hough a single phone call may not intrude to the degree re-

quired at common law, that phone call poses the same kind of

harm recognized at common law.” Id. at 1192 (emphasis in origi-

nal). In so holding, the Tenth Circuit distinguished TransUnion; it

emphasized that the TransUnion defendants hadn’t published tor-

tious words and, accordingly, that the harm identified by the plain-

tiffs 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.

4The Sixth Circuit’s post-TransUnion decision in Ward v. National Patient

Account Services Solutions, Inc., 9 F.4th 357 (6th Cir. 2021), is similar. The

court held there that a plaintiff’s allegation that a debt servicer’s failure to ad-

equately identify itself in a voicemail violated the FDCPA did “not bear a close

relationship to traditional harms” and, accordingly, that the plaintiff couldn’t

“demonstrate standing based upon the statutory violations alone.” Id. at 362.

Notably, though, in so holding, the Sixth Circuit reiterated TransUnion’s ob-

servation that “[a] common-law or historical analogue need not be an ‘exact

duplicate’” to confer standing. Id. (quoting TransUnion, 141 S. Ct. at 2209).

Even more to the point, the court acknowledged that “[a]ctions to enforce the

‘right of privacy’ have long been litigated in American courts,” that “one of

the purposes of the FDCPA is to stop abusive debt collection practices that

contribute to ‘invasions of individual privacy,’” and that if the plaintiff there

had “claimed, for example, that [the servicer] improperly shared personal in-

formation with a third party”—as Hunstein alleges Preferred did here—then

his “alleged harm would more closely resemble an invasion of privacy.” Id.

(quoting 15 U.S.C. § 1692).

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19-14434 Opinion of the Court 17

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 ex-

tent, 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 in-

vasion of privacy (generally) and intrusion upon seclusion, “an ex-

amination 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, the Salcedo panel

concluded its opinion by expressly rejecting any suggestion that a

plaintiff’s standing turns on “how small or large [his] injury is” and

emphasizing that the key criterion is quality, not quantity: “Our

assessment today is thus qualitative, not quantitative. We have as-

sessed how concrete and real the alleged harm is and we have

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18 Opinion of the Court 19-14434

concluded that it is not the kind of harm that constitutes an injury

in fact.” Id. at 1173 (emphasis added; citation omitted).

As we understand it, then, Salcedo does not require that a

plaintiff’s alleged harm be similar in both kind and degree to a com-

mon-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 intangi-

ble injury to be of the same kind as a harm actionable at common

5 Notably, in Gadelhak, now-Justice Barrett interpreted Salcedo—just as we do

here—to hold that an alleged harm and a common-law tort must be similar in

kind, but not in degree. See Gadelhak, 950 F.3d at 462 (“In rejecting standing

in a similar case, the Eleventh Circuit suggested that the tort of intrusion upon

seclusion addressed only invasions of privacy like eavesdropping and spying,

which pose a different kind of harm altogether.”).

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19-14434 Opinion of the Court 19

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 an-

other 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 offen-

sive 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 dis-

closure 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 disclo-

sure 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 rea-

sonable person and is not of legitimate public concern. 6 To be sure,

Preferred’s disclosure of Hunstein’s private information to

6 The dissent disagrees. See Dissenting Op. at 7, 11–14. We deal with its cri-

tique of our treatment of the offense and public-concern elements below. See

infra note 8. First, though, we need to clean up the “publicity” issue.

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20 Opinion of the Court 19-14434

CompuMail’s employees might have been less widespread—less

public—than the disclosures typical of actionable public-disclosure-

of-private-facts claims, but that is a matter of “degree”; publication

of personal information to the employees of a single entity and

more widespread dissemination of that same personal information

remain similar in “kind.” 7

7 The dissent asserts that Hunstein can’t satisfy the “publicity” element of the

public-disclosure-of-private-facts tort because, it says, he alleged only a “[c]om-

munication of a fact to ‘a small group of persons.’” Dissenting Op. at 7 (quot-

ing Restatement (Second) of Torts § 652D cmt. a.) Three responses.

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 Hun-

stein, we simply can’t engage in appellate fact-finding (or speculation) to sec-

ond-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 dis-

sent acknowledge that Preferred’s communication to CompuMail was suffi-

ciently “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

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19-14434 Opinion of the Court 21

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 en-

tails communication, see Restatement (Second) of Torts § 652D

to confer standing) if just one more sees it? And can it really be that the United

States Constitution demands that sort of bologna-slicing?

Finally, it’s 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 Hori-

zon, 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.” Cun-

ningham 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 Per-

son’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 pri-

vacy.”). 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, de-

pend on the number of people told. Whether publicity is achieved by broad-

casting 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.”

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22 Opinion of the Court 19-14434

(1977), which in turn requires “that one person has brought an idea

to the perception of another.” Restatement of Torts § 559, Com-

ment a, p. 140 (1938); see also TransUnion, 141 S. Ct. at 2210 n.6.

While not dispositive, of course, it is telling that in response to

Hunstein’s allegation that Preferred disclosed “sensitive medical in-

formation” to CompuMail’s “employees,” Preferred conceded—

both in briefing and again at oral argument—that its transmission

of Hunstein’s information to CompuMail constituted a “commu-

nication,” at least as that term is used in the FDCPA. That conces-

sion, it seems to us, further underscores that any differences be-

tween Hunstein’s alleged harm and the tort of public disclosure of

private facts are matters of degree, not kind.8

8 The dissent is “baffled” by our consideration of Preferred’s “communication”

concession, see Dissenting Op. at 9—but only because the dissent reads too

much into it. We don’t contend that Preferred’s concession is decisive. In-

stead, we note only that Preferred’s concession of a necessary-but-insufficient

component of publicity—“communication”—reinforces the conclusion that

its dissemination of information to an unknown number of CompuMail’s em-

ployees was sufficiently “public” to make it close enough to the tort’s publicity

element.

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 “unrea-

sonable publicity given to another’s private life” is “illustrated by,” for exam-

ple, “the unauthorized publicizing of a person’s medical condition” or his “per-

sonal finances”); Biederman’s of Springfield, Inc. v. Wright, 322 S.W.2d 892,

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19-14434 Opinion of the Court 23

894 (Mo. 1959) (stating that “the status of [a] debt owed” is “a private mat-

ter . . . in which the general public had, and could have, no legitimate inter-

est,” 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 FDCPA bears a

sufficiently “close relationship”—in kind, but not necessarily degree—to the

harm addressed by that common-law tort.

With respect to the second element—whether publicizing the infor-

mation would be highly offensive to a reasonable person—the dissent con-

cludes that, because it “was not highly offensive at common law” for a creditor

to “inform[] employers of an employee’s debt,” the communication of Hun-

stein’s financial information and his minor son’s name and medical-care-re-

lated 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 com-

municated more—and more sensitive—information than just Hunstein’s sta-

tus 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 em-

ployees 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 dis-

closed 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 an-

nounced Hunstein’s debt to a room full of strangers, that too would be suffi-

ciently offensive. Wright, 322 S.W.2d at 894. Thus, even accepting the dis-

sent’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.

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24 Opinion of the Court 19-14434

Turning to the third element—whether the matter at issue is of legiti-

mate public concern—we think that the dissent simply misunderstands its op-

eration. The dissent seems to suggest that whether a topic is of legitimate

public concern depends on the audience to whom the information is commu-

nicated. 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 au-

dience” 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 Restatement § 652D’s test—make

clear that public concern is an objective inquiry that turns on “the content,

form, and context” of the expression. Connick v. Myers, 461 U.S. 138, 143 n.5,

147 (1983). And the Court has specified the circumstances in which a commu-

nication “deals with matters of public concern”—namely, “when it can be

fairly considered as relating to any matter of political, social, or other concern

to the community, or when it is a subject of legitimate news interest; that is, a

subject of general interest and of value and concern to the public.” Snyder v.

Phelps, 562 U.S. 443, 453 (2011) (quotation marks and citations omitted).

That’s not this case.

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 learn-

ing 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 pub-

lic . . . 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

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19-14434 Opinion of the Court 25

* * *

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 com-

mon-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 con-

sumer reports, and then sold those reports to entities that re-

quested 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 con-

sumers with OFAC alerts on their accounts sued TransUnion

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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26 Opinion of the Court 19-14434

under the FCRA, alleging that it had violated § 1681e(b) by failing

to use reasonable procedures to assure the maximum possible ac-

curacy of their credit files. 141 S. Ct. at 2202. As relevant here, the

question for the Court was whether the alleged violations of

§ 1681e(b) bore the required “close relationship” to the common-

law tort of defamation and thus constituted a concrete injury.

The answer, the Supreme Court held, depended on the par-

ticular class members’ allegations under § 1681e(b). Those who

presented evidence that their credit reports had been provided to

third-party businesses established a concrete injury bearing a close

relationship to the common-law tort of defamation, and thus con-

crete injury, while those whose credit reports had not been pro-

vided to third parties did not. 141 S. Ct. at 2208–13.

In a footnote, the Court acknowledged the plaintiffs’ “for-

feited” argument that TransUnion had “published” their infor-

mation 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 “nec-

essarily 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 (em-

phasis added). It then said that “the plaintiffs’ internal publication

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19-14434 Opinion of the Court 27

theory circumvents a fundamental requirement of an ordinary def-

amation 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—re-

affirms Hunstein’s standing. Preferred could, we suppose, point to

TransUnion’s footnote in support of its contention that its commu-

nication 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 pub-

lication to vendors “for the first time” in the Supreme Court, for

which reason it was deemed “forfeited,” the Court’s footnoted dis-

cussion about vendors is dictum. TransUnion, 141 S. Ct. at 2210

n.6; Cent. Green Co. v. United States, 531 U.S. 425, 431 (2001) (ex-

plaining that a discussion “not essential to [a court’s] disposition of

any of the issues contested [in the case]” is “unquestionably dic-

tum”). 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 Su-

preme Court required that “the specific facts set forth by the

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28 Opinion of the Court 19-14434

plaintiff to support standing . . . be supported adequately by the ev-

idence 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 pro-

cessed” Hunstein’s sensitive information. TransUnion, 141 S. Ct.

at 2210 n.6. What we do have, as already explained, are (1) Hun-

stein’s allegation that Preferred “disclosed” his son’s “sensitive

medical information” to CompuMail’s “employees” and (2) Pre-

ferred’s concession that, in so doing, it “communicat[ed]” Hun-

stein’s personal information to CompuMail, at least as that term is

used in the FDCPA.

Second, overreading TransUnion’s dictum would transform

Spokeo’s “close relationship” test into a “perfect match” test—

thereby effecting (sub silentio) a sea change in Article III standing

doctrine—and, in fact, would do the very thing that the Court

(again, above the line) said it was not doing, namely, “requir[ing]

an exact duplicate” of a common-law claim. 141 S. Ct. at 2204. In-

deed, a perfect-match interpretation of the close-relationship test

wouldn’t just contravene TransUnion’s language—it would con-

travene that decision’s holding. Here’s why: The defendant in

TransUnion argued that certain class members didn’t suffer a harm

with a sufficiently “close relationship” to defamation because the

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19-14434 Opinion of the Court 29

OFAC alerts on the disseminated credit reports were only mislead-

ing—not literally false, as the tort of defamation ordinarily re-

quires. Id. at 2209. The Supreme Court rejected that attempt at

equivalency, concluding—as already noted—that “[i]n 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.” Id.; see

also id. at 2204 (“Spokeo does not require an exact duplicate in

American history and tradition.”). In the end, then, TransUnion

reaffirms our conclusion that Hunstein has alleged a harm that

bears a close relationship to a harm that has traditionally been rec-

ognized in American courts. 9

9 Tellingly, since TransUnion came down, three of our sister circuits have re-

lied on its holding, rather than its dictum, to conclude that a perfect match

between an alleged harm and a common-law tort isn’t required. See, e.g., Lu-

pia, 8 F.4th at 1192 (holding that an unconsented-to phone call “poses the same

kind of harm recognized at common law” as intrusion upon seclusion and cit-

ing TransUnion’s language that “Spokeo does not require an exact duplicate

in American history and tradition” (quotation marks omitted)); Ward, 9 F.4th

at 362 (citing and quoting TransUnion for the proposition that “[a] common-

law or historical analogue need not be an ‘exact duplicate’” to confer stand-

ing); Farrell v. Blinken, 4 F.4th 124, 133 (D.C. Cir. 2021) (holding that “[t]he

right of election following the Revolution is not identical to the right to expat-

riate” and emphasizing that “our jurisdiction under the Constitution ‘does not

require an exact duplicate [common law injury] in American history and tra-

dition’” (quoting TransUnion, 141 S. Ct. at 2209)).

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30 Opinion of the Court 19-14434

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 § 1692c(b) does not clearly

enough express Congress’s judgment that injuries of the sort that

Hunstein alleges are actionable, here Congress went further to “ex-

plain itself.” Huff, 923 F.3d at 466. In particular, as already noted,

in a section of the FDCPA titled “Congressional findings and dec-

laration of purpose,” Congress identified the “invasion[] of individ-

ual privacy” as one of the harms against which the statute is di-

rected. 15 U.S.C. § 1692(a). That, we think, is sufficient. See Trich-

ell, 964 F.3d at 999 (listing “invasions of individual privacy” as one

of the “serious harms” enumerated in § 1692(a)). 10

10 The dissent accuses us of “play[ing] the trick of defining very broadly the

judgment of Congress” by looking to the “general purposes” that Congress

expressly enacted—only, for its part, to conclude that Congress wasn’t con-

cerned with mail vendors, in particular, because a single staff-drafted Senate

Report highlights other “specific abuses.” Dissenting Op. at 19. No. As be-

tween the duly enacted statute’s text—which tells us that Congress was aimed

at preventing “invasions of individual privacy,” 15 U.S.C. § 1692(a)—and the

unenacted legislative history, we must privilege the former.

The dissent separately reasons from two references to the term “tele-

grams” in the FDCPA that Congress “acquiesce[d]” in “the use of intermedi-

aries” 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

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19-14434 Opinion of the Court 31

It’s true that we pointed in Trichell to the FDCPA’s language

that a person may recover “any actual damage sustained,” 15

U.S.C. § 1692k(a), to “reinforce[]” our conclusion that the plaintiff’s

injury there—alleged under a different statutory provision,

§ 1692e—didn’t ipso facto constitute a concrete injury. Trichell,

964 F.3d at 1000. But we don’t read either Trichell or § 1692k(a) as

categorically limiting the class of FDCPA plaintiffs to those with

actual damages.11 That’s especially so where, as here—and unlike

Trichell—the alleged harm fits neatly within the “invasions of indi-

vidual privacy” that Congress expressly addressed. 15 U.S.C.

§ 1692(a).

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 infor-

mation 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 tech-

nology—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 Con-

gress 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.

11 The dissent does. See Dissenting Op. at 21–22. But that can’t be right. Im-

agine, for instance, that instead of conveying Hunstein’s private medical- and

debt-related information to CompuMail’s employees, Preferred had plastered

it on a billboard in Times Square. Still no standing absent proof of actual dam-

ages?

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32 Opinion of the Court 19-14434

* * *

Because (1) § 1692c(b) bears a close relationship to a harm

that American courts have long recognized as cognizable and

(2) Congress’s judgment indicates that violations of § 1692c(b) con-

stitute a concrete injury, we conclude that Hunstein has the requi-

site standing to sue.

III

Having determined that Hunstein has standing to sue under

§ 1692c(b), we now consider the merits of his case. Recall that

§ 1692c(b) states that, subject to several exceptions, “a debt collec-

tor may not communicate, in connection with the collection of any

debt, with any person” other than the consumer. 15 U.S.C.

§ 1692c(b). The parties agree that Preferred is a “debt collector,”

that Hunstein is a “consumer,” and that the alleged debt at issue

here was a “consumer debt,” all within the meaning of § 1692c(b).

As we have explained, the parties also agree that Preferred’s trans-

mittal of Hunstein’s personal information to CompuMail consti-

tutes a “communication” within the meaning of the statute. 12 Ac-

cordingly, the sole question before us is whether Preferred’s com-

munication with CompuMail was “in connection with the

12Section 1692a(2) defines communication as “the conveying of information

regarding a debt directly or indirectly to any person through any medium.”

15 U.S.C. § 1692a(2).

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19-14434 Opinion of the Court 33

collection of any debt,” such that it violates § 1692c(b). 13 Hunstein

contends that the plain meaning of the phrase “in connection with

13The dissent suggests—without coming right out and saying—that Compu-

Mail is not a “person” within the meaning of the statute but, rather, is a “me-

dium.” Dissenting Op. at 9 n.6. In making that suggestion, the dissent points

to the FDCPA’s definition of “communication” to mean “the conveying of

information regarding a debt directly or indirectly to any person through any

medium.” 15 U.S.C. § 1692a(2) (emphases added). We assume that the point

must be that the terms “person” and “medium” are mutually exclusive and

that because CompuMail fits within one of numerous definitions of the term

“medium”—“a person through whom a purpose is accomplished,” see Me-

dium, Webster’s Third New International Dictionary 1403 (1961)—then it

can’t also be a “person” within the meaning of the statute. So, the argument

presumably goes, (1) no “communication” within the meaning of § 1692a(2)

occurred, and (2) even if it did, Preferred didn’t communicate “with any per-

son” within the meaning of § 1692c(b). We disagree.

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. Sec-

ond, more technically, the dissent’s medium-as-intermediary reading intro-

duces its own interpretive problem. Section 1692c(b) prohibits communica-

tion in connection with the collection of any debt “with any person other

than,” among others, “the consumer [or] his attorney.” But the dissent’s sug-

gested definition of “medium” plainly includes the consumer’s attorney; he is

a person through whom a purpose (the eventual collection of a debt) is

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34 Opinion of the Court 19-14434

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 Compu-

Mail was not “in connection with the collection of any debt.”

We begin with the plain meaning of the phrase “in connec-

tion with” and its cognate word, “connection.” Dictionaries have

adopted broad definitions of both. Webster’s Third defines “con-

nection” to mean “relationship or association,” Connection, Web-

ster’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 authori-

ties further explain that the phrase “in connection with” 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 de-

note 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 report-

ing agency is a “person,” then it stands to reason that an inanimate mail vendor

like CompuMail is, as well.

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19-14434 Opinion of the Court 35

“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 de-

tails 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 seems to us inescapable that Preferred’s

communication to CompuMail at least “concerned,” was “with ref-

erence to,” and bore a “relationship [or] association” to its collec-

tion of Hunstein’s debt. We thus hold that Hunstein has alleged a

communication “in connection with the collection of any debt” as

that phrase is commonly understood.

Preferred resists that conclusion on three different grounds,

which we address in turn.

A

First, Preferred relies on our interpretation of another

FDCPA provision, § 1692e, to argue that communications “in con-

nection with the collection of any debt” necessarily entail a demand

for payment. In relevant part, § 1692e states that “[a] debt collector

may not use any false, deceptive, or misleading representation or

means in connection with the collection of any debt.” 15 U.S.C.

§ 1692e (emphasis added). In the line of cases interpreting the

meaning of “in connection with the collection of any debt” in

§ 1692e, we have focused on the language of the underlying com-

munication. In Reese v. Ellis, Painter, Ratterree & Adams, LLP,

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36 Opinion of the Court 19-14434

for instance, in concluding that a law firm’s letter to a consumer

was “in connection with the collection of any debt” within the

meaning of § 1692e, we emphasized that the letter expressly stated

that the firm was attempting to collect a debt and was acting as a

debt collector, demanded full and immediate payment, and threat-

ened to add attorneys’ fees to the outstanding balance if the debtors

didn’t pay. 678 F.3d 1211, 1217 (11th Cir. 2012). Similarly, in Ca-

ceres v. McCalla Raymer, LLC, we held that a collection letter con-

stituted a “communication in connection with the collection of

a[ny] debt” under § 1692e for similar reasons. 755 F.3d 1299, 1301–

03 (11th Cir. 2014). Quoting the letter, we emphasized “that it is

‘for the purpose of collecting a debt;’ it refers in two additional par-

agraphs to ‘collection efforts;’ it states that collections efforts will

continue and that additional attorneys’ fees and costs will accrue;

it states the amount of the debt and indicates that it must be paid

in certified funds; and it gives the name of the creditor and supplies

the law firm’s phone number in the paragraph where it talks about

payments.” Id. at 1303.

Relying on Caceres and Reese—both of which, again, ad-

dressed § 1692e—the district court here adopted the following test:

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 deter-

mining whether the transmission of information to a

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19-14434 Opinion of the Court 37

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 connec-

tion with the collection of any debt” necessarily entails a demand

for payment defies the language and structure of § 1692c(b) for two

separate but related reasons—neither of which applies to § 1692e.

First, the demand-for-payment interpretation would render super-

fluous the exceptions spelled out in §§ 1692c(b) and 1692b. Con-

sider as an initial matter the exceptions specified in § 1692c(b) itself:

“[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 . . . .” 15 U.S.C. § 1692c(b) (emphasis added).

Communications with four of the six excepted parties—a con-

sumer reporting agency, the creditor, the attorney of the creditor,

and the attorney of the debt collector—would never include a de-

mand for payment. The same is true of the parties covered by

§ 1692b and, by textual cross-reference, excluded from § 1692c(b)’s

coverage: “person[s] other than the consumer” with whom a debt

collector might communicate “for the purpose of acquiring loca-

tion information about the consumer.” Id. § 1692b. A debt collec-

tor would presumably never make a demand for payment of a

party matching that description.

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38 Opinion of the Court 19-14434

The upshot is that the phrase “in connection with the collec-

tion of any debt” in § 1692c(b) must mean something more than a

mere demand for payment. Otherwise, Congress’s enumerated ex-

ceptions would be redundant. Under the district court’s demand-

for-payment interpretation, Congress wouldn’t have needed to in-

clude exceptions for communications with consumer reporting

agencies, creditors, attorneys of creditors, attorneys of debt collec-

tors, or persons providing a debtor’s location information; those

communications would have been foreclosed ipso facto by the

phrase “in connection with the collection of any debt.” It is a “car-

dinal principle of statutory construction” that “a statute ought,

upon the whole, to be so construed that, if it can be prevented, no

clause, sentence, or word shall be superfluous.” Duncan v. Walker,

533 U.S. 167, 174 (2001) (quotation marks omitted); accord, e.g.,

Antonin Scalia & Bryan A. Garner, Reading Law: The Interpreta-

tion of Legal Texts 174 (2012) (“If possible, every word and every

provision is to be given effect . . . . None should be ignored. None

should needlessly be given an interpretation that causes it to dupli-

cate another provision or to have no consequence.”). Because it is

possible—and indeed, we think, more natural—to interpret

§ 1692c(b) in a way that does not render most of its textually spec-

ified exceptions redundant, we will do so.

Second, and relatedly, the district court’s interpretation ren-

ders yet another portion of § 1692c(b) meaningless. By insisting on

a demand for payment, the district court essentially interpreted “in

connection with the collection of any debt” to mean “to collect any

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19-14434 Opinion of the Court 39

debt.” Under this interpretation, the key phrase “in connection

with” has no independent meaning or force. But as just explained,

we have a duty to “give effect, if possible, to every clause and word

of a statute.” Duncan, 533 U.S. at 174.

The district court seems to have been led astray by its reli-

ance on decisions interpreting § 1692e, whose language and opera-

tion differ from § 1692c(b)’s in important respects. 14 As a linguistic

matter, § 1692e contains none of the specific exceptions that

§ 1692c(b) does; accordingly, there was no risk in Reese or Caceres

that, by reading a “demand for payment” gloss into § 1692e, we

would render other portions of that statute redundant or meaning-

less. And as an operational matter, § 1692e—which prohibits

“false, deceptive, or misleading representation or means in connec-

tion with the collection of any debt”—covers the sorts of claims

that are brought by recipients of debt collectors’ communica-

tions—i.e., debtors. See Caceres, 755 F.3d at 1300–01 (case brought

by recipient of letter, the debtor); Reese, 678 F.3d at 1214 (same).

As its title indicates, by contrast, § 1692c(b), targets debt collectors’

“[c]ommunication with third parties,” not debtors. In the typical

§ 1692c(b) case, the debtor isn’t the recipient of the challenged

communication. Linguistic differences aside, this practical opera-

tional difference undermines any argument that the meaning of the

14 These contextual clues illustrate the fact that the “presumption of consistent

usage”—which is at times persuasive—“is particularly defeasible by context.”

Scalia & Garner, supra, at 170–71.

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40 Opinion of the Court 19-14434

phrase “in connection with the collection of any debt” must neces-

sarily be the same in § 1692c(b) as in § 1692e.

B

Preferred separately urges us to adopt the holistic, multifac-

tor 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 § 1692e’s “in

connection with the collection of any debt” language to take into

account the following seven considerations:

(1) the nature of the relationship of the parties;

(2) whether the communication expressly demanded

payment or stated a balance due; (3) whether it was

sent in response to an inquiry or request by the

debtor; (4) whether the statements were part of a

strategy to make payment more likely; (5) whether

the communication was from a debt collector;

(6) whether it stated that it was an attempt to collect

a debt; and (7) 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 § 1692e—not § 1692c(b). And as just

explained, §§ 1692c(b) and 1692e differ both (1) linguistically, in

that the former includes a series of exceptions that an atextual

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19-14434 Opinion of the Court 41

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 threat-

ened consequences should the debtor fail to pay—illustrates this

point. It makes little sense for a debt collector to threaten conse-

quences 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 § 1692c(b), the

phrase “in connection with the collection of any debt” has a dis-

cernible ordinary meaning that obviates the need for resort to ex-

tratextual “factors.” All too often, multifactor tests—especially

seven-factor tests like Goodson’s—obscure more than they illumi-

nate. Parties to FDCPA-governed transactions—debtors, credi-

tors, debt collectors, lawyers, etc.—are entitled to guidance about

the scope of permissible activity. They are likelier to get it from

even broadly framed statutory language than from judge-made ge-

stalt.

C

Lastly, Preferred makes what we’ll call an “industry prac-

tice” 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 in-

volving 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 § 1692c(b)

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42 Opinion of the Court 19-14434

claims, and the courts in those cases certainly had no obligation to

sua sponte determine whether the collectors’ communications to

their vendors violated § 1692c(b). That this is (or may be) the first

case in which a debtor has sued a debt collector for disclosing his

personal information to a mail vendor hardly proves that such dis-

closures are lawful.

One final (and related) point: It’s not lost on us that our in-

terpretation of § 1692c(b) runs the risk of upsetting the status quo

in the debt-collection industry. We presume that, in the ordinary

course of business, debt collectors share information about con-

sumers not only with dunning vendors like CompuMail, but also

with other third-party entities. Our reading of § 1692c(b) may well

require debt collectors (at least in the short term) to in-source many

of the services that they had previously outsourced, potentially at

great cost. We recognize, as well, that those costs may not pur-

chase much in the way of “real” consumer privacy. It may well

turn out—indeed, for all we know, it may be shown through fur-

ther factual development in this very case—that the CompuMails

of the world do not routinely read, care about, or abuse the infor-

mation that debt collectors transmit to them. See Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 556 (2007) (“[O]f course, a well-pleaded

complaint may proceed even if it strikes a savvy judge that actual

proof of [the alleged] facts is improbable.”). Even so, our obligation

is to interpret the law as written and, at this stage of the proceed-

ings, to apply it to the facts as alleged in Hunstein’s complaint—

whether or not we think the resulting consequences are

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19-14434 Opinion of the Court 43

particularly sensible or desirable. Needless to say, if Congress

thinks that we’ve misread § 1692c(b)—or even that we’ve properly

read it but that it should be amended—it can say so.

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 § 1692c(b). Further, because Preferred’s

transmittal of Hunstein’s personal debt-related information to

CompuMail constituted a communication “in connection with the

collection of any debt” within the meaning of § 1692c(b)’s key

phrase, we conclude that Hunstein has adequately stated a claim.

REVERSED and REMANDED.

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19-14434 Tjoflat, J., Dissenting 1

TJOFLAT, Circuit Judge, Dissenting:

When we originally held that Hunstein had standing, the Su-

preme Court had not yet issued its opinion in TransUnion LLC v.

Ramirez. 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 con-

crete harm can be a tangible harm, a material risk of harm, or an

intangible harm.1 Relevant to this analysis is Spokeo’s standard for

intangible harm: “The violation of a procedural right granted by

statute can be sufficient in some circumstances to constitute injury

in fact . . . [so] a plaintiff in such a case need not allege any additional

harm beyond the one Congress has identified.” Spokeo, Inc. v.

Robins, 136 S. Ct. 1540,1549 (2016) (emphasis in original). And a

statutory violation, an intangible harm, can give rise to standing

when “history and the judgment of Congress” support a finding of

1 Intangible harm is a broader category than statutory violations, and statutory

violations are a subspecies of intangible harm. See Transunion LLC v.

Ramirez, 141 S. Ct. 2190, 2204 (2021) (explaining that, among other kinds of

intangible harm, “harms specified by the Constitution” like the “abridgment

of free speech” and “infringement of free exercise” are intangible harms); Mu-

ransky v. Godiva Chocolatier, Inc., 979 F.3d 917, 926 (11th Cir. 2020) (en banc)

(same).

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2 Tjoflat, J., Dissenting 19-14434

standing. See id. In short, at the motion to dismiss stage, if the

plaintiff is pleading an intangible harm, his complaint must contain

sufficient facts to establish that history and the judgment of Con-

gress support standing. See Warth v. Seldin, 422 U.S. 490, 517, 95

S. Ct. 2197, 2215 (1975) (evaluating what the plaintiff’s complaint

alleged to determine whether there were sufficient facts upon

which to base standing and explaining that “[i]t is the responsibility

of the complainant clearly to allege facts demonstrating that he is a

proper party to invoke judicial resolution of the dispute and the

exercise of the court’s remedial powers”); Muransky, 979 F.3d at

921 (“Because the plaintiff alleged only a statutory violation, and

not a concrete injury, he has no standing.”).

Now, I turn to the overlay TransUnion gave us. In TransUn-

ion, at issue was 15 U.S.C. § 1681e(b) of the Fair Credit Reporting

Act (“FCRA”), which requires consumer reporting agencies to “fol-

low reasonable procedures to assure maximum possible accuracy”

in its credit files. When a consumer reporting agency “willfully fails

to comply” with § 1681e(b) “with respect to any consumer,” that

agency “is liable to that consumer” for both actual and statutory

damages, as well as for punitive damages and attorney’s fees.

TransUnion, 141 S. Ct. at 2201 (quoting 15 U.S.C. § 1681n(a)).

The plaintiffs in TransUnion were 8,185 people who claimed

that TransUnion, a consumer reporting agency, “failed to use rea-

sonable procedures to ensure the accuracy of their credit files” un-

der § 1681e(b). Id. at 2200. The Supreme Court divided the plain-

tiffs into two groups: 1,853 class members whose reports were

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19-14434 Tjoflat, J., Dissenting 3

disseminated to third-party businesses and 6,332 class members

whose reports were never published. The Supreme Court as-

sumed that TransUnion had violated its obligations under the

FCRA as to all 8,185 class members. Id. at 2208. But, the Supreme

Court said, a violation of the statute alone is not enough to create

standing because “an important difference exists between (i) a

plaintiff’s statutory cause of action to sue a defendant over the de-

fendant’s violation of federal law, and (ii) a plaintiff’s suffering con-

crete harm because of the defendant’s violation of federal law.” Id.

at 2205. This difference matters, the Supreme Court explained, be-

cause “Congress may create causes of action for plaintiffs to sue

defendants who violate those legal prohibitions or obligations . . . .

[but] [o]nly those plaintiffs who have been concretely harmed by a

defendant’s statutory violation may sue that private defendant over

that violation in federal court” since “under Article III, an injury in

law is not an injury in fact.” Id.

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 § 1681e(b) was analo-

gous to the common law tort of defamation. Id. at 2208–09. But,

not so as to the other 6,332 class members. The Supreme Court

explained that because the reports of the other 6,332 class members

were never disseminated, TransUnion’s violation of the statute had

no common-law analogue such as to satisfy the Spokeo analysis for

intangible harms. Id. at 2209–10 (“[T]here is no historical or com-

mon-law analog[ue] where the mere existence of inaccurate

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4 Tjoflat, J., Dissenting 19-14434

information, absent dissemination, amounts to concrete injury.”

(internal quotation marks and citation omitted)). The Supreme

Court’s reasoning here certainly suggests that under Spokeo, if

there is no common-law analogue to a plaintiff’s alleged injury,

then the judgment of Congress can do nothing to overcome that

pleading failure. Id. at 2205 (“But even though ‘Congress may “el-

evate” harms that “exist” in the real world before Congress recog-

nized them to actionable legal status, it may not simply enact an

injury into existence, using its lawmaking power to transform

something that is not remotely harmful into something that is.’

Hagy v. Demers & Adams, 882 F.3d 616, 622 (6th Cir. 2018) (Sut-

ton, J.) (quoting Spokeo, 578 U.S., at 341, 136 S. Ct. 1540).”).

TransUnion stands for the proposition that the Spokeo anal-

ysis for intangible harms based on the violation of a statute—that

is, looking at history and the judgment of Congress—is individual-

ized for every plaintiff’s injury. Just because some plaintiffs’ inju-

ries will have a common-law analogue and are the very kind of in-

juries 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 re-

quires.

II.

A. History

I start with the premise that the FDCPA did not mean to

eliminate debt collection practices. It meant to eliminate abusive

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19-14434 Tjoflat, J., Dissenting 5

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 be-

cause 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.

2 This point is ancillary, because, as I will explain, no one disputes that the

match need not be exact. But Judge Newsom’s approach leans more toward

a “no-match” test than an “exact” match test, and that does not comport with

Spokeo and TransUnion.

3 This point is ancillary because footnote six does not directly deal with public

disclosure of private facts. Footnote six talks about publication, not publicity,

and in the context of defamation, not public disclosure of private facts. It is

worth noting that in footnote six the Supreme Court dismissed a common-

law tort comparison because the plaintiffs’ theory “circumvented a fundamen-

tal requirement of an ordinary defamation claim—publication.” TransUnion,

141 S. Ct. at 2210 n.6. So, the Supreme Court was carefully looking at key

elements of the tort to determine whether an alleged statutory violation has a

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6 Tjoflat, J., Dissenting 19-14434

Reminding us that TransUnion does not demand a perfect

match between the common-law analogue and the statutory viola-

tion, the Court uses Hunstein’s allegation that his “sensitive medi-

cal 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 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)

Torts § 652D (Am. L. Inst. 1977). So, this tort has three elements:

1) publicity of private information, 2) that would be highly offen-

sive to a reasonable person, and 3) that is not of legitimate public

concern. And “publicity” in this context means more than mere

publication. Id. cmt a. Publicity “means that the matter is made

public, by communicating it to the public at large, or to so many

persons that the matter must be regarded as substantially certain to

become one of public knowledge.” Id.

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

“close relationship” to the common-law tort, something the Court’s opinion

today does not do. Id.

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19-14434 Tjoflat, J., Dissenting 7

in fact occurred” based on Hunstein’s allegations that employees

of the mail vendor received Hunstein’s information from Pre-

ferred. 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 legiti-

mate 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. Com-

munication of a fact to “a small group of persons” is not publicity.4

4 The Court tries to get into a numbers game as to how many people must see

the personal information before it becomes public. That analysis completely

misses the point. In 1890, Warren and Brandeis wrote The Right to Privacy,

an article in the Harvard Law Review often credited with framing the tort of

invasion of privacy. See Samuel D. Warren & Louis D. Brandeis, The Right

to Privacy, 4 Harv. L. Rev. 193 (1890); Toffolini v. LFP Publishing Group,

LLC, 572 F.3d 1201, 1206 (11th Cir. 2009). The purpose of the tort was to

combat newspapers probing into individuals’ personal lives. Id. at 196. When

I reference “a small group of persons,” as mentioned in the Restatement, I am

referring to private communication, that is, communication not meant to be

exchanged with the world. See Tureen, 572 F.2d at 417–18 (“Thus it is not an

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8 Tjoflat, J., Dissenting 19-14434

Restatement (Second) of Torts § 652D cmt. a. (1977). Cases involv-

ing 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). 5 This means Hunstein’s allegations

fail all three elements of public disclosure of private facts. In other

words, the Court’s opinion tries to fit a “square cause[] of action

invasion of the right of privacy, within the rule stated in this Section, to com-

municate a fact concerning the plaintiff's private life to a single person or even

to a small group of persons. On the other hand, any publication in a newspa-

per or a magazine, even of small circulation, or in a handbill distributed to a

large number of persons, or any broadcast over the radio, or statement made

in an address to a large audience, is sufficient to give publicity within the mean-

ing of the term as it is used in this Section. The distinction, in other words, is

one between private and public communication.”).

5 In Tureen, the court held that it was not a public disclosure of private facts

when an insurance company hired a consumer reporting firm to investigate

an individual with a health insurance policy, even though “insurance investi-

gations [are] the type of conduct most likely to intrude upon the consumer’s

right to privacy.” 571 F.2d at 416. This was because the publicity element was

missing—i.e., the consumer reporting firm was only reporting to a single com-

pany, the health insurance company, not to the public at large. Id. (explaining

that “there must be evidence of publicity in the sense of a disclosure to the

general public or likely to reach the general public, as opposed to ‘publication’

required in a defamation action, in order for plaintiff to make a submissible

case of invasion of privacy by public disclosure of private facts”); see also

Biederman’s of Springfield, Inc. v. Wright, 322 S.W.2d 892, 896 (Mo. 1959)

(holding that debt collection practices through third parties meet the require-

ments of the public disclosure of private facts when they are “unreasonable

and oppressive,” that is, “degrading and embarrassing,” not simply when debt

is being collected).

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19-14434 Tjoflat, J., Dissenting 9

into a round tort” like Judge Grant warned against in Muransky.

979 F.3d at 931. If Hunstein’s alleged statutory violation is analo-

gous to public disclosure of private facts, TransUnion’s close-rela-

tionship test is really a third-cousin-twice-removed test.

In a last-ditch effort to try to explain how Hunstein’s allega-

tions amount to publicity, the Court says that “Preferred con-

ceded” that “its transmission of Hunstein’s information to Compu-

Mail 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 be-

cause 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 6 makes not a whit of difference as to

6Although we need not reach the merits of this case because Hunstein does

not have standing, it is worth noting that the Court’s opinion accepts that

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10 Tjoflat, J., Dissenting 19-14434

whether Hunstein’s allegations match in any respect the common-

law tort of public disclosure of private facts. And they do not.

CompuMail is a “person” within the meaning of the statute and that Pre-

ferred’s transmission of information to CompuMail is a “communication.” If

we were reaching the merits, which we should not, there is a strong argument

that CompuMail is a “medium” rather than a “person” under the language of

the statute and that Preferred was not communicating with CompuMail when

it transmitted information, just like a debt collector is not communicating with

a telegram company when it sends a telegram to a debtor. See 15 U.S.C. §

1692(a) (defining “communication” as “the conveying of information regard-

ing a debt directly or indirectly to any person through any medium”). So, if

CompuMail is a medium, and not a person, then no communication has oc-

curred. The Court has two responses to this common-sense interpretation.

First, it says that to construe “medium” as including mail vendors would ren-

der § 1692c(b) unintelligible because that statute includes consumers’ (a.k.a.

debtors’) attorneys as a person, who, the Court says, would be “mediums”

under my view. Second, the Court says that consumer reporting agencies are

persons under the plain language of § 1692c(b), so mail vendors must be too.

To the first point, this is an oversimplification. The attorney is a representa-

tive of the consumer, not just a conduit of information. To the second point,

consumer reporting agencies and mail vendors serve fundamentally different

purposes. Consumer reporting agencies serve the independent function of “as-

sembling or evaluating consumer credit information,” which they then trans-

mit to other entities. Fair Credit Reporting Act, 15 U.S.C. § 1681a(f). So, they

too, like a consumer’s attorney are a person for purposes of the statute because

they are more than mere conduits of information. Not so with mail vendors.

Debt collectors do not send mail vendors information for the mail vendor’s

keeping. The mail vendor’s sole purpose is to take that information and turn

it into a debt collection notice, just like a telegram operator’s position exists

for the purpose of transmitting a message. But I leave this discussion for an-

other day when our plaintiff has standing.

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19-14434 Tjoflat, J., Dissenting 11

The Court’s analysis of the last two elements is wholly con-

tained here: “And, it seems to us, that disclosure of intensely pri-

vate information—including, most notably, the status of Hun-

stein’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 mis-

fit 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 com-

mon 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 Developments 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

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12 Tjoflat, J., Dissenting 19-14434

addressee, does not alter” the conclusion that creditors may com-

municate 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 meas-

ure 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 con-

cern. 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). 7

7 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 busi-

ness, vocation, or profession, it is not libelous per se merely to publish a state-

ment 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, ut-

tered in the presence of the plaintiff, has been held not slanderous, on the

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19-14434 Tjoflat, J., Dissenting 13

Finally, trying to apply the third element, whether the mat-

ter is of legitimate public concern, is nonsensical because the public

does not know anything about Hunstein’s debt. Only the mail ven-

dor has been given access to Hunstein’s information, and Hun-

stein’s debt and the circumstances surrounding it could be of legit-

imate concern to the mail vendor, who must comply with the

FDCPA’s notification requirements to debtors. 8 The sheer

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 con-

fidence of the community.”).

8 For instance, under the FDCPA, the debt collector must let the consumer

know that he or she can dispute the validity of the debt and must also “provide

the consumer with the name and address of the original creditor, if different

from the current creditor.” 15 U.S.C. § 1692g(a)(5). This kind of information

may naturally include circumstances surrounding the debt. There are count-

less kinds of debt, and the flow of specific information about the particular

kind of debt between a debtor and debt collector is anticipated. Cf. Reese v.

Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211 (11th Cir. 2012) (fore-

closure notifications as debt communication); Eades v. Kennedy, PC Law

Offs., 799 F.3d 161 (2d Cir. 2015) (nursing home debt communications). If the

Court’s position is that there would not be standing in this case if the mail

vending process were in-house, that is, within the debt collector’s business,

that is elevating form over substance. The debt collector has presumably cho-

sen to use a mail vendor as a cost-saving measure due to the mail vendor’s

dealing in high volume, and requiring a debt collector to do everything in

house would likely raise costs that would ultimately be passed to consumers.

And, ironically, mail vendors actually enhance compliance with statutory re-

quirements. Brief for The National Creditors Bar Association as Amicus

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14 Tjoflat, J., Dissenting 19-14434

difficulty of trying to apply the third element should signal to the

Court that there is no fit between the public disclosure of private

facts and Hunstein’s alleged statutory violation.

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 ana-

logue to this statutory violation, then-Judge Barrett explained, was

intrusion upon seclusion. Then-Judge Barrett explained that un-

wanted telephone calls had long been deemed to qualify for the

tort of intrusion upon seclusion. Gadelhak, 950 F.3d at 462. So,

Curiae Supporting Defendant-Appellee at 3, Hunstein v. Preferred Collection

& Mgmt. Servs., Inc., No. 19-14434, ECF No. 134 (explaining that mail ven-

dors, voice analytics vendors, and cloud vendors all provide their services to-

ward the goal of promoting adherence to FDCPA statutory requirements).

“Letter vendors ensure that the compliance decisions of management are im-

plemented and protected through mechanisms that guarantee accurate deliv-

ery of content and prevent alteration of, or interference with otherwise-com-

pliant letters.” Id.

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19-14434 Tjoflat, J., Dissenting 15

she considered unwanted text messages to be simply the latest

form of intrusion upon seclusion.9 See id.

That analysis is a far cry from what the Court has done here

today. The Court has admitted that a key element of public disclo-

sure of private facts is missing in Hunstein’s claim—namely, that

the disclosure must be public. But, the Court says, that is a differ-

ence in degree and not in kind, so the common-law analogue still

stands. Majority Op. at 19–20. That is wrong. Even in Salcedo,

where the match between the statutory violation and common-law

harm was closer than in this case, that is, the tort was closer in kind,

we ultimately rejected the proposition that the analogy between

repeated unwanted phone calls, which was an established example

of intrusion upon seclusion, and an unwanted text message was

close enough to find a common-law analogue. Salcedo, 936 F.3d

at 1171 (explaining that an unwanted text message “f[e]ll short of

9The Court also cites Lupia in support of its standing analysis. Majority Op.

at 15–16 (citing Lupia v. Medicredit, Inc., 8 F.4th 1184 (10th Cir. 2021), as a

recent case in the wake of TransUnion). Lupia was a case under a different

provision of the FDCPA where the plaintiff received an unwanted phone call

and voicemail in violation of the statute, and the court there held that the

plaintiff had standing because the unwanted phone call was analogous to the

tort of intrusion upon seclusion. 8 F.4th at 1191. Again, unwanted phone calls

have been a prototypical example of the tort of intrusion upon seclusion, so

there is little trouble in finding a common-law analogue in that case. See id.

at 1191–92. But what the Court’s opinion does here today is the equivalent of

saying that the tort of intrusion upon seclusion would apply, even if an indi-

vidual’s seclusion was not intruded upon. It cannot be.

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16 Tjoflat, J., Dissenting 19-14434

th[e] degree of harm” that intrusion upon seclusion requires).10

Whether looking at kind or degree of harm, we cannot now find a

common-law analogue to the public disclosure of private facts be-

cause the violation Hunstein alleges is indeed not even public. To

do otherwise defies logic.

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 en-

vision 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 infor-

mation was sent is no stranger. It is the entity responsible for mail-

ing out letters on behalf of Preferred. We can look to 15 U.S.C. §

1692b and 15 U.S.C. § 1692f, other provisions of the FDCPA, for

10 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 at-

tempting 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 alle-

gations 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.”).

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19-14434 Tjoflat, J., Dissenting 17

confirmation that Congress meant to exempt transmission services

from the general prohibition on third-party communications.

These statutes impose restrictions, for instance, on the use

of telegrams when debt collectors contact debtors. This set of re-

strictions 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 § 1692b and § 1692f.

At a basic level, Congress’s acquiescence in the use of inter-

mediaries makes sense, because when individuals incur debt they

are at least impliedly, and usually expressly, consenting to receive

information about their debts from their creditor. We need look

no further than the FDCPA itself for proof that Congress factored

in this kind of consent into the statutory scheme. Take, for in-

stance, § 1692g. It says that “[w]ithin five days after the initial com-

munication with a consumer in connection with the collection of

any debt, a debt collector shall . . . send the consumer a written

notice containing” things like the amount of the debt, the name of

the creditor, and the option of contesting the validity of the debt.

15 U.S.C. § 1692g(a). Congress imposed an affirmative duty on

debt collectors to write debtors with information about their debt

because this practice benefits debtors, giving them notice of their

rights and obligations under the law. And Congress seemingly as-

sumed debtors should receive these kinds of notices in the context

of the broader world of debt collection and the relationship

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18 Tjoflat, J., Dissenting 19-14434

between a debt collector and debtor. It seems odd that Congress

would hamper the very process it codifies in § 1692g, writing debt-

ors about their debt, by banning the use of mail vendors, who

simply send out the written notices about debt, under the language

of § 1692c(b).

I am certainly not saying that debtors consent to abusive

practices, at which the FDCPA was aimed. But simple transmis-

sion of information along a chain that involves one extra link be-

cause 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 Col-

lection 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 collec-

tor Preferred and debtor Hunstein, like a telegram operator.11 I

11 The Court reduces Congress’s express contemplation of telegram usage to

“passing references to an all-but-obsolete technology, which appear in differ-

ent portions of the FDCPA.” Majority Op. at 31 n.10. The Court says that

evaluating the use of intermediaries within the statutory scheme in the way I

suggest is attempting to “override § 1692c(b)’s plain language.” Id. Not so.

Spokeo’s test for intangible harms expressly contemplates looking to the judg-

ment of Congress in determining whether a statutory violation creates stand-

ing. My point in bringing up telegrams is not to revive obsolete technology

but rather to demonstrate that Congress planned for debt collection notifica-

tions to go through third parties to get to the debtor. After all, a telegram

necessarily required an operator who received a debt collection notice from

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19-14434 Tjoflat, J., Dissenting 19

emphasize again that Congress did not mean to eliminate debt col-

lection. It meant to eliminate abusive debt collection practices, and

Congress plainly did not think the use of intermediaries was an abu-

sive debt collection practice.

The Court’s opinion plays the trick of defining very broadly

the judgment of Congress. The Court looks to the FDCPA’s gen-

eral purposes in § 1692(a), in which Congress explained that “inva-

sion[] of individual privacy” as a harm the statute was mean to ad-

dress. Majority Op. at 30. But the Court never addresses whether

Congress thought mail vendors were a culprit of the “invasions of

privacy.” Some of the specific abuses Congress meant to target

were “obscene or profane language, threats of violence, telephone

calls at unreasonable hours, misrepresentation of a consumer's le-

gal rights, disclosing a consumer's personal affairs to friends, neigh-

bors, or an employer, obtaining information about a consumer

the debt collector and then transmitted that notice to the debtor. A plaintiff

could allege that the debt collection company communicated personal infor-

mation to the employees of a telegram company and attempt to base standing

on that “communication.” That basis of standing would obviously be rejected

because Congress contemplated the fact that telegrams would be used to al-

low debtors to receive information about their debts. The Court has yet to

explain how a mail vending company is any different from a telegram com-

pany, and Congress expressly condoned the latter. Of course, we need not

look to the judgment of Congress to determine that standing does not exist in

this case, because there is no common-law analogue to mail vending employ-

ees receiving personal information for the purpose of sending debt collection

notices. I simply mean to highlight the fact that neither of Spokeo’s consider-

ations support the Court’s view here.

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20 Tjoflat, J., Dissenting 19-14434

through false pretense, impersonating public officials and attor-

neys, and simulating legal process.” 12 S. Rep. No. 95-382, at 2

(1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1696. But there is no

evidence that Congress was trying to eliminate mail vendors.13

The Court cannot look to Congress’s general purposes in § 1692(a)

about protecting privacy to support its intangible harm theory be-

cause the general purposes of Congress tell us nothing about what

Congress thought about mail vendors. Cf. Salcedo, 936 F.3d at

1168–69 (“We first note what Congress has said in the TCPA’s

12 The Court says that it will privilege the “duly enacted statute’s text—which

tells us that Congress was aimed at preventing ‘invasions of individual pri-

vacy,’” over “legislative history.” Majority Op. at 30 n.10. By looking at gen-

eral purposes in § 1692(a), the Court is doing the exact same thing it accuses

me of doing—looking beyond § 1692c(b) at other parts of the statutory scheme

to discern Congress’s overall purpose. The problem for the Court’s position

is that the general purposes of § 1692(a) tell us nothing about what Congress

thought about mail vendors, while the statutory provisions about telegrams

in § 1692g give us a clear picture about what Congress thought about third

parties receiving information from debt collectors, which the third parties then

give to the debtors.

13 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.

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19-14434 Tjoflat, J., Dissenting 21

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 § 1692k(a), the damages provision

under the FDCPA). But, for inexplicable reasons, the Court tries

to limit that holding to § 1692e, the specific statutory provision of

the FDCPA at issue in Trichell. Trichell’s reasoning was not so

narrow because the damages provision applies to all causes of ac-

tion contained within the FDCPA. Trichell reasons that the stat-

ute’s language about “additional damages” an individual may re-

cover on top of “actual damages” “suggests that Congress viewed

statutory damages [under the FDCPA] not as an independent font

of standing for plaintiffs without traditional injuries, but as an ‘ad-

ditional’ remedy for plaintiffs suffering ‘actual damage’ caused by a

statutory violation.” Trichell, 964 F.3d at 1000. The Court’s opin-

ion does nothing to engage with Trichell’s reasoning related to §

1692k(a). It does not because it cannot. The statute’s presumption

that there would be actual damages further enforces my view that

Congress did not intend for a statutory violation under § 1692c(b)

to create standing.

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22 Tjoflat, J., Dissenting 19-14434

What the Court’s opinion is telling us is that we should pre-

sume harm if a defendant violates § 1692c(b). But it does not ap-

pear that Congress intended for us to do that. And for good reason.

Traditionally, courts create presumptions when the other side has

all the evidence. 14 But, in this case, the plaintiff has all the evidence

of the harm it caused him. So, it makes no sense to presume that

he was harmed for Article III purposes because he alone knows

how he was harmed. And, based on his pleadings, Hunstein suf-

fered no additional harm beyond the statutory violation. Because

the harm Hunstein has alleged cannot create standing and because

he has alleged no other harm, 15 in my view, this case was properly

dismissed.

14Res ipsa loquitur is an example of where we create a presumption based on

one party’s possession of the evidence. See Cie. Des. Messageries Maritimes

v. Tawes, 205 F.2d 5, 8 (5th Cir. 1953).

15 I am sorry to rain on the Court’s parade of horribles about the billboard in

Times Square, but that example sets fire to a straw man. If Preferred had plas-

tered Hunstein’s private medical- and debt-related information on a billboard

in Times Square, Hunstein would have a slam-dunk state tort case. And, even

if he decided to sue under the FDCPA, his standing would likely be based on

a tangible harm or material-risk-of-harm theory because of the danger of iden-

tity theft or other concerns associated with airing information so publicly, in

stark contrast to a mail vendor receiving information for the purposes of in-

forming the debtor alone of his debt in compliance with Congress’s mandates.

And I think it would be quite rare indeed that a debt collection company

broadcast an individual’s private information and no actual damages could be

proven.