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

USCA11 Case: 19-14434 Date Filed: 09/08/2022 Page: 1 of 80

[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 WILLIAM PRYOR, Chief Judge, WILSON, JORDAN,

ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA,

BRASHER, and TJOFLAT, * Circuit Judges.

GRANT, Circuit Judge, delivered the opinion of the Court, in which

WILLIAM PRYOR, Chief Judge, WILSON, BRANCH, LUCK, LAGOA,

BRASHER, and TJOFLAT, Circuit Judges, joined.

WILLIAM PRYOR, Chief Judge, filed a concurring opinion, in which

TJOFLAT, Circuit Judge, joined.

NEWSOM, Circuit Judge, filed a dissenting opinion, in which

JORDAN, ROSENBAUM, and JILL PRYOR, Circuit Judges, joined.

GRANT, Circuit Judge:

In opinion after opinion, one standing issue continues to

arise—what it takes to show concrete harm. That question was

once tricky. But for this case and others like it, where the plaintiff

alleges no harm besides the violation of a statute, the Supreme

Court has cut a straightforward path. Like it or not, that path is

ours to follow.

We have done so before. We recently held, en banc, that

pleading a bare procedural violation of a statute was not enough,

at least on its own, to establish concrete injury. And in that same

case, we followed the Supreme Court’s direction to consider

* Senior Circuit Judge Gerald B. Tjoflat elected to participate in this decision

pursuant to 28 U.S.C. § 46(c).

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common-law torts as sources of information on whether a

statutory violation had caused a concrete harm. The comparison

shed helpful light there; because two tort elements were missing

from the statutory violation, no similar harm could be inferred

between the two.

The Supreme Court has since ratified our approach. In

TransUnion, the Court reiterated that harm from a statutory

violation had to be “real” in order to be concrete, and that one way

to tell if a harm is real is to compare it to a harm redressed in a

traditional common-law tort. The Court also used the same

approach that we did—comparing the elements—to determine

whether the harm caused by a new statutory violation was similar

to the one invoked by an old tort claim. When viewed as a way to

evaluate whether actual harm occurred, this approach makes

sense—if the elements do not match up, how could the harm that

results from those elements?

Here, we walk that same path again. The plaintiff alleges

that a creditor sent information about his debt to a mail vendor,

which then sent him a letter on behalf of the creditor reminding

him of the terms of the debt. Though he identified no specific harm

in his complaint, he now claims that the debt collector’s act caused

him a concrete injury because it was analogous to the common-

law tort of public disclosure. The problem with this theory is that

his alleged reputational injury lacks a necessary element of the

comparator tort—the requirement that the disclosure be public.

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Without publicity, a disclosure cannot possibly cause the sort of

reputational harm remediated at the common law.

The comparison to public disclosure of private facts is the

sole basis on which the plaintiff rested his claim of concrete harm.

Because that comparison fails, he cannot show any real harm, and

we dismiss his complaint.

I.

Richard Hunstein experienced a nearly inevitable frustration

of modern American life—an expensive medical bill. When he did

not pay, the hospital transferred the debt to a collection agency,

Preferred Collection and Management Services. The agency, in

turn, hired a commercial mail vendor to notify Hunstein that he

needed to settle his debt. To that end, the collection agency sent

its vendor several pieces of information, including Hunstein’s

name, his son’s name, the amount of the debt, and the fact that the

debt was incurred by Hunstein for his son’s medical treatment.

The vendor inserted the information into a prewritten form letter

(on Preferred Collection’s letterhead and with Preferred

Collection’s signature) and sent it along to Hunstein. 1

Within days of receiving the letter, Hunstein filed suit. He

alleged that Preferred Collection had disclosed information about

1 These letters, a common feature of modern debt collection, are known as

“dunning letters.” That term comes from the verb “dun,” a word of unknown

origin meaning “[t]o importune (a debtor) for payment.” Dun, The American

Heritage Dictionary of the English Language 555 (5th ed. 2016).

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his debt to a third party—the mail vendor—in violation of the Fair

Debt Collection Practices Act. 2 See 15 U.S.C. § 1692c(b). The

district court granted Preferred Collection’s motion to dismiss,

finding no violation because the communication to the mail

vendor was not “in connection with the collection of any debt” as

required for liability under the Act. Id. Hunstein appealed.

A panel of this Court reversed—but not before requesting

supplemental briefing on standing. Hunstein v. Preferred

Collection & Mgmt. Servs., Inc., 994 F.3d 1341, 1344–45 (11th Cir.

2021). Our en banc decision in Muransky v. Godiva Chocolatier,

Inc. had recently been issued, making it clear that Hunstein’s suit

could not survive a standing inquiry if he simply alleged a “bare

procedural violation” of the Fair Debt Collection Practices Act. See

979 F.3d 917, 921 (11th Cir. 2020). Muransky, to be sure, was also

clear that some statutory violations could cause a real harm that

supported standing; we reiterated the Supreme Court’s guidance

from Spokeo, Inc. v. Robins that one way to evaluate such alleged

statutory harms was by comparing them to traditional common-

law tort claims. See id. at 926 (citing 578 U.S. 330, 340–41 (2016)).

Because Hunstein had pleaded what could be characterized,

at best, as an intangible harm resulting from a statutory violation,

2 Hunstein brought two additional claims on statutory grounds, alleging

violations of a different section of the Fair Debt Collection Practices Act and

of the Florida Consumer Collection Practices Act. See 15 U.S.C. § 1692f; Fla.

Stat. § 559.72(5). But he appeals only the dismissal of his § 1692c(b) claim.

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the panel considered whether his alleged injury had a common-law

analogue. It did—at least as the panel saw it. The majority opinion

recognized that Hunstein had alleged neither a tangible harm nor

a “risk of real harm,” but held that his injury was concrete in any

event. Hunstein, 994 F.3d at 1346–49 (quoting Muransky, 979 F.3d

at 927). It was enough, the panel said, that his alleged harm had a

“close relationship” to “invasion-of-privacy torts,” especially

“public disclosure of private facts.” Id. at 1347 (quotations

omitted). The panel also concluded, in what it treated as either a

second or a separate stage in evaluating concrete injury, that

Hunstein had the judgment of Congress on his side. Id. at 1348.

Before that opinion went into effect, the Supreme Court

issued TransUnion LLC v. Ramirez, which drilled down on what a

plaintiff must show to establish that an alleged intangible harm is a

concrete injury. 141 S. Ct. 2190 (2021). The panel vacated its first

opinion in light of TransUnion. Hunstein v. Preferred Collection

& Mgmt. Servs., Inc., 17 F.4th 1016, 1020 (11th Cir. 2021). But it

also issued a new one. The new opinion spent more energy on the

standing analysis, but ultimately reached the same result—this

time over a vigorous dissent.

The panel majority admitted that TransUnion “may seem—

at least on its face—to be in some tension with” the conclusion that

Hunstein had standing to bring his claim. Id. at 1031. Even so, at

least by the lights of the majority, the allegation that “some

measure of disclosure in fact occurred” was close enough to the

tort of public disclosure to constitute a concrete injury. Id. at 1027,

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1032. The dissent disagreed, arguing that such logic “swe[pt] much

more broadly than TransUnion would allow.” Id. at 1038 (Tjoflat,

J., dissenting).

Following the revised opinion, our full Court voted to take

the case en banc. Hunstein v. Preferred Collection & Mgmt. Servs.,

Inc., 17 F.4th 1103, 1104 (11th Cir. 2021). We now consider, in light

of Spokeo, Muransky, and TransUnion, whether Hunstein has

standing.

II.

We review Article III standing de novo. Muransky, 979 F.3d

at 923. A plaintiff must support “each element” of standing with

“the manner and degree of evidence required at the successive

stages of the litigation.” Lujan v. Defs. of Wildlife, 504 U.S. 555,

561 (1992). Here, at the motion-to-dismiss stage, a plaintiff must

allege facts that, taken as true, “plausibly” state that the elements

of standing are met. Thole v. U.S. Bank N.A., 140 S. Ct. 1615, 1621

(2020); see also Muransky, 979 F.3d at 924 (citing Ashcroft v. Iqbal,

556 U.S. 662, 678–79 (2009)).

III.

As we have explained, one of the “unexpected consequences

of the common-law-analogy approach to identifying harms is the

growing insistence on hammering square causes of action into

round torts.” Muransky, 979 F.3d at 931. That admonition finds

new life in this case. Hunstein does his best to shove a nonpublic

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transfer of information into a tort targeting public disclosure, but it

just does not fit.

When considering whether an alleged intangible harm is

concrete, or “real,” we look to see if it matches up with a harm

“traditionally recognized as providing a basis for lawsuits in

American courts.” TransUnion, 141 S. Ct. at 2204. Spokeo offered,

and TransUnion affirmed, a “simple instruction” about how to do

so: “see if a new harm is similar to an old harm.” Muransky, 979

F.3d at 931. Although an “exact duplicate” of a traditionally

recognized harm is not required, the new allegations cannot be

missing an element “essential to liability” under the comparator

tort. TransUnion, 141 S. Ct. at 2209 (quotation omitted).

This guidance helps us heed our own warning to avoid

“overthinking” the analysis. Muransky, 979 F.3d at 931. The new

harm Hunstein alleges—a disclosure to a private party—is not

similar to the old harm cited, disclosure to the public. That

traditional tort requires publicity, and Hunstein alleges none.

Without publicity, none of the exposure targeted by the tort of

public disclosure is at play. He thus has failed to allege a concrete

harm, and has no standing to bring his suit.

A.

The reason it matters whether Hunstein has alleged a

concrete harm, rather than simply a statutory violation, is that

federal courts have limited jurisdiction. Under the Constitution,

we only have power to resolve “Cases” and “Controversies.” U.S.

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Const. art. III, § 2. Though three traditional doctrines govern

whether a case or controversy exists—standing, ripeness, and

mootness—standing has gotten the lion’s share of the attention in

recent cases.

The “irreducible constitutional minimum of standing” itself

has three components: injury in fact, causation, and redressability.

Lujan, 504 U.S. at 560–61. Here, injury is the only one in question.

Many of these cases spring from an allegation that a party has

violated a federal statute—but not every statutory wrong causes an

injury capable of supporting standing. No doubt, the public has a

shared interest in private companies complying with the law. See

TransUnion, 141 S. Ct. at 2206. That mutual interest, though,

“cannot ‘be converted into an individual right by a statute that

denominates it as such, and that permits all citizens (or, for that

matter, a subclass of citizens who suffer no distinctive concrete

harm) to sue.’” Id. (quoting Lujan, 504 U.S. at 576–77); see also

Carney v. Adams, 141 S. Ct. 493, 499 (2020) (A “plaintiff cannot

establish standing by asserting an abstract general interest common

to all members of the public.” (quotation omitted)).

In other words, “an injury in law is not an injury in fact.”

TransUnion, 141 S. Ct. at 2205. Only an alleged harm that is

“concrete and particularized” and “actual or imminent, not

conjectural or hypothetical” is enough to show that a party “has a

case or controversy rather than, say, a strong and abiding interest

in an issue, or a desire to obtain attorney’s fees.” Lujan, 504 U.S. at

560 (quotations omitted); Muransky, 979 F.3d at 924.

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This appeal, like so many others of recent vintage, hinges on

the concreteness requirement. An injury is concrete if it actually

exists—that is, if it is “real, and not abstract.” Spokeo, 578 U.S. at

340 (quotations omitted). A “bare statutory violation” is not

enough, no matter how beneficial we may think the statute to be.

Muransky, 979 F.3d at 936; see also Spokeo, 578 U.S. at 341. And

the requirement that an injury be concrete is “essential to the

Constitution’s separation of powers” because it ensures that

plaintiffs have a real stake in the actions they bring; it confines the

courts to the business of deciding disputes between parties. See

TransUnion, 141 S. Ct. at 2207.

The most obvious concrete harm is a physical injury or

financial loss. But a plaintiff can also have a real stake—and

therefore a real injury—when an alleged harm is intangible.

Spokeo, 578 U.S. at 340. Congress is “well positioned to identify”

those intangible harms, and when that body speaks by passing a

statute that includes a cause of action for a particular harm, we find

its judgment “instructive and important.” See id. at 341. Indeed,

we have understood since Lujan that “Congress may ‘elevate to the

status of legally cognizable injuries concrete, de facto injuries that

were previously inadequate in law.’” Id. (quoting Lujan, 504 U.S.

at 578 (brackets omitted)).

But these authorities speak to Congress observing the

existence of real-world injuries and creating federal causes of action

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to redress them—not creating new injuries out of whole cloth.3

Along those lines, the Supreme Court has cautioned that Congress

“may not simply enact an injury into existence, using its lawmaking

power to transform something that is not remotely harmful into

something that is.” TransUnion, 141 S. Ct. at 2205 (quotation

omitted). So congressional judgment, though instructive, is not

enough. As we said in Muransky, the Constitution forbids the view

that “once Congress has spoken, the courts have no further role.”

979 F.3d at 933.

One way we deal with this tension between appropriately

respecting congressional judgment and properly maintaining the

boundaries of Article III jurisdiction is by comparing new causes of

action to old ones. We ask “whether an alleged intangible harm

has a close relationship to a harm that has traditionally been

regarded as providing a basis for a lawsuit in English or American

courts.” Spokeo, 578 U.S. at 341. That kind of statutory violation,

the Supreme Court has instructed, generally causes harm concrete

enough to support standing. See TransUnion, 141 S. Ct. at 2204.

3 Statutes creating a right to information are notable examples of where

Congress may, in fact, do something that looks like creating an injury. But in

those instances, a party has a right to a concrete thing—information. We will

not digress on this point other than to say that the Supreme Court has set apart

these informational injuries from the typical tangible injuries of physical injury

and financial loss, and from those intangible injuries subject to the Court’s

comparative inquiry. See, e.g., TransUnion, 141 S. Ct. at 2214; Thole, 140 S.

Ct. at 1621 n.1.

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This is the second time in two years that our Court, sitting

en banc, has been tasked with deciding whether a plaintiff alleging

a statutory violation has established Article III standing. In

Muransky, we clarified Spokeo’s application to these sorts of harms

in considerable detail. Muransky, 979 F.3d at 925–27, 929–30.

Ultimately, we explained, the “key holding from Spokeo” is that “a

‘bare procedural violation, divorced from any concrete harm’ is not

enough to establish an Article III injury.” Id. at 929 (quoting

Spokeo, 578 U.S. at 341). We also emphasized that, although the

plaintiff there had not done so, a party could show that his cited

statutory violation caused or qualified as a concrete harm by

demonstrating a “close relationship” to a harm traditionally

recognized in tort law. Id. at 931 (quotation omitted).

The Supreme Court reaffirmed both points in TransUnion.

There, the Court doubled down on its decision in Spokeo, again

stressing that harms must be concrete—“real”—to give rise to

Article III standing. TransUnion, 141 S. Ct. at 2204 (quoting

Spokeo, 578 U.S. at 340). It reemphasized that, for intangible

harms, analogizing to longstanding torts is an important way to

determine whether an alleged intangible injury meets the

concreteness requirement. Id. at 2204–05. Particularly relevant

here, it put more meat on the bones of that approach, adding that

when an element “essential to liability” at common law is missing

from an alleged harm, the common-law comparator is not closely

related to that harm. Id. at 2209–10 (quotation omitted); see also

Muransky, 979 F.3d at 932. As the Court explained, a theory that

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“circumvents a fundamental requirement” of an analogous

common-law tort “does not bear a sufficiently ‘close relationship’”

to establish standing. TransUnion, 141 S. Ct. at 2210 n.6.

But why are common-law torts even relevant? TransUnion

endorsed the same theory that we articulated in Muransky: “The

fit between a new statute 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.”

Muransky, 979 F.3d at 926; see TransUnion, 141 S. Ct. at 2209, 2210

n.6. The reason, in short, that we consider traditional torts is

because of the harm-to-harm comparison that they engender and

elucidate.

The facts of TransUnion, which dealt with two separate

classes of plaintiffs, themselves offer a helpful point of comparison

and guide us as we work through this analysis. First, TransUnion

found that—for purposes of comparing the class members’ alleged

harms to defamation—misleading information was close enough,

element-wise, to false information. TransUnion, 141 S. Ct. at 2209.

“The harm from being labeled a ‘potential terrorist’ bears a close

relationship to the harm from being labeled a ‘terrorist.’” Id. For

plaintiffs whose credit reports were released to a third party, that

was close enough; they had been harmed when misleading

information was published. That’s because “the harm from a

misleading statement” bore “a sufficiently close relationship to the

harm from a false and defamatory statement.” Id. But for those

plaintiffs whose credit files had not been shared with any creditors,

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the story was different. “[I]f inaccurate information falls into a

consumer’s credit file,” the Court asked, “does it make a sound?”

Id. (quotation omitted).

The answer was no. Because the basis for the harm giving

rise to a defamation claim was “the loss of credit or fame, and not

the insult,” only misleading information that was published could

lead to a reputational harm like the one suffered after a defamatory

statement. Id. (quoting John Baker, An Introduction to English

Legal History 474 (5th ed. 2019)). In other words, though

misleading information—like false information—can lead to unfair

reputational harm if publicized, no reputational harm at all occurs

when either sort of information is kept private.

TransUnion thus affirmed that this common-law tort

comparison is not make-work for lower courts, and that when

carrying it out we do not look at tort elements in a vacuum. We

make the comparison between statutory causes of action and those

arising under the common law with an eye toward evaluating

commonalities between the harms. See Muransky, 979 F.3d at 926.

Though TransUnion has gotten the most attention, and has

the most direct relevance to this case, we note that it is not the only

time the Supreme Court has dealt with the concrete harm

requirement after Spokeo. In Thole v. U.S. Bank N.A., for instance,

the Court similarly rejected a comparison to a common-law cause

of action and quickly dispatched the argument that “a plaintiff

automatically satisfies the injury-in-fact requirement whenever a

statute grants a person a statutory right and purports to authorize

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that person to sue to vindicate that right.” 140 S. Ct. at 1620

(quoting Spokeo, 578 U.S. at 341). Again—no standing when the

plaintiffs alleged a statutory violation that did not hurt them.

Cases since Spokeo have thus reiterated that an intangible

harm is concrete only if it can be said to “exist in the real world,”

independent of a new statutory cause of action. TransUnion, 141

S. Ct. at 2205 (quotation omitted). TransUnion in particular has

offered helpful detail on how to compare new causes of action and

old torts. And that detail makes extra sense if we consider the

comparison as part of the effort to evaluate whether an alleged

harm is real; if an element from the common-law comparator tort

is completely missing, it is hard to see how a statutory violation

could cause a similar harm.

B.

Applying these principles to the statutory violation alleged

by Hunstein is an exercise in simplicity. The holdings of Spokeo,

Muransky, and TransUnion are directly on point. Because the

harm Hunstein now asserts lacks an element essential to its only

plausible historical comparator, it lacks a close relationship with a

traditional common-law tort. Hunstein has alleged no other basis

for standing and his case must be dismissed.

We first identify the precise harm at issue. Hunstein alleges

that, rather than preparing a mailing on its own, Preferred

Collection sent information about his debt to a mail vendor, which

then populated the data in a form letter. That act, according to

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Hunstein, violated the statutory prohibition on communicating,

“in connection with the collection of any debt, with any person

other than the consumer.” 15 U.S.C. § 1692c(b).

What harm did this alleged violation cause? Hunstein’s

complaint does not say. Even now, he points to nothing tangible

like financial loss or physical injury. See Muransky, 979 F.3d at 926.

Instead, he says that by sending the information about his debt to

the mail vendor, Preferred Collection committed an act similar to

the tort of public disclosure. The problem with this comparison is

evident from the start: the disclosure alleged here lacks the

fundamental element of publicity. And without publicity, there is

no invasion of privacy—which means no harm, at least not one

that is at all similar to that suffered after a public disclosure.

It is no surprise that one element of “public” disclosure is

publicity; the others, for information’s sake, are that the publicity

concerns a matter in the private life of another, that it is highly

offensive to a reasonable person, and that the disclosed information

is not of legitimate public concern. 4 See, e.g., Cox Broad. Corp. v.

Cohn, 420 U.S. 469, 489, 492 (1975). Only a person “who gives

publicity to a matter concerning the private life of another” is

liable. Restatement (Second) of Torts § 652D (Am. L. Inst. 1977)

4 The dissent is incorrect when it asserts that the question we consider here is

the only point up for debate. See Dissenting Op. at 5; see also Hunstein, 17

F.4th at 1041–44 (Tjoflat, J., dissenting); Concurring Op. at 1. But because the

lack of publicity is dispositive, we need not go further.

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(emphasis added). Indeed, the harm at the core of the tort is based

not on the fact that embarrassing information exists, but that the

public knows about it. So without publicity, there can be no public

disclosure. Unlike the near-falsity that was sufficiently close to

defamation in TransUnion—because it gave rise to a similar

reputational harm—communications that are private rather than

public do not engender a closely analogous invasion of privacy. See

TransUnion, 141 S. Ct. at 2209.

Publicity requires far more than what Hunstein has

offered—it does not include just “any communication by the

defendant to a third person.” Restatement (Second) of Torts

§ 652D cmt. a (emphasis added). 5 Instead, it requires that a matter

be “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. Black’s Law

Dictionary defines “public” as “[o]f, relating to, or involving an

entire community, state, or country” or “[o]pen or available for all

to use, share, or enjoy”—and has defined the concept in similarly

expansive language since its first edition. Public, Black’s Law

5 The “publicity” required for public disclosure differs from the “publication”

required for defamation. Restatement (Second) of Torts § 652D cmt. a.

Publication covers “any communication by the defendant to a third person”;

it is “enough that it is communicated to a single individual other than the one

defamed.” Id. §§ 577 cmt. b., 652D cmt. a. “‘Publicity,’ on the other hand,

means that the matter is made public”—a private disclosure does not suffice.

Id. § 652D cmt. a.

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Dictionary (11th ed. 2019) (emphasis added); see also Public,

Black’s Law Dictionary (1st ed. 1891) (“Pertaining to a state, nation,

or whole community; proceeding from, relating to, or affecting the

whole body of people or an entire community.”). Publicity, in

short, is a well-known and longstanding concept in American law.

Indeed, cases from across the federal and state judicial

systems amply demonstrate the substance of publicity. See, e.g.,

Jenkins v. Dell Publ’g Co., 251 F.2d 447, 449 (3d Cir. 1958)

(publicity in tortious invasion of privacy action assumed to exist

when information was published in a newspaper circulated “where

the plaintiffs lived and were known”); Virgil v. Time, Inc., 527 F.2d

1122, 1127 (9th Cir. 1975) (no publicity if information is disclosed

to a nonpublic audience, unless the disclosure is accompanied by

“consent to publicize”); Gilbert v. Med. Econ. Co., 665 F.2d 305,

307–09 (10th Cir. 1981) (publicity assumed when information was

published in a periodical); Dortch v. Atlanta J. & Atlanta Const.,

261 Ga. 350, 350–52 (1991) (publicity assumed if information is

disclosed to a newspaper); Bodah v. Lakeville Motor Express, Inc.,

663 N.W.2d 550, 557 (Minn. 2003) (“absent dissemination to the

public at large, the claimant’s private persona has not been

violated” and no publicity has occurred (quotation omitted));

Shattuck-Owen v. Snowbird Corp., 16 P.3d 555, 559 (Utah 2000)

(the size of an audience receiving a disclosure is not dispositive

because courts must instead determine “whether the disclosure

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was sufficiently public so as to support a claim for invasion of

privacy” (quotation omitted)). 6

As the Restatement explains, the distinction is between

public and private communication; this is a qualitative inquiry, not

a quantitative one. See Restatement (Second) of Torts § 652D

cmt. a. To be sure, dissemination of information to many people

is one way publicity can occur. But a disclosure to many people

may still be private, or at least not “publicity.” Although the

number of people who receive information may be relevant when

examining the question of publicity, it does not itself reveal

whether a given disclosure qualifies as public. When a trade secret

is communicated to thousands of new employees after a merger,

for example, it does not become public information.7 On the other

6 A careful look at the dissenting opinion’s publicity cases only proves the

point that publicity is an essential element of the common-law tort of public

disclosure. Dissenting Op. at 29 n.9. Fernandez-Wells v. Beauvais, for

instance, recognized that “the extent of the required publicity to support a

claim of public disclosure of private facts varies from jurisdiction to

jurisdiction,” but concluded that even “the most inclusive common-law

definitions of ‘publicity’” were not met where the plaintiff made “no

allegation” that the defendant “could have expected public disclosure to arise”

from his communication. 127 N.M. 487, 489–90 (Ct. App. 1999). And Karch

v. BayBank FSB affirms that publicity is a qualitative, not a quantitative,

matter. 147 N.H. 525, 535 (2002).

7 Whether this example is best explained by the meaning of “publicity” or by

privilege, as the dissent suggests, is immaterial. See Dissenting Op. at 35 n.12.

TransUnion shows why. Both cases it cites describe that a privileged

communication is not a “publication” in the relevant sense—that is, it is not

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20 Opinion of the Court 19-14434

hand, a disclosure to a single person may very well qualify as

publicity—depending on who the person is. Consider the effect of

sharing another person’s private information with an online

personality or a reporter. The effect of a disclosure is what

matters—not the number of people to whom it is made. That is

why, rather than playing a numbers game, we ask whether the

disclosed information “reaches, or is sure to reach, the public.” Id.

Hunstein makes no allegations that suggest publicity. His

complaint says that Preferred Collection placed his personal

information “within the possession of an unauthorized third-party”

that “populated some or all of this information into a pre-written

template, printed, and mailed the letter” to Hunstein. The

allegations stop there.

The dissent, in apparent agreement that these facts are

insufficient on their own, indulges what it calls the “eminently

reasonable inference” that “living, breathing, thinking individuals”

must have read and considered the information about Hunstein’s

debt. Dissenting Op. at 10, 34. To further support this “inference,”

the dissent leans on language from Count I of the complaint, which

says that Preferred Collection “disclosed information” about

the kind of publication that would support a defamation action. TransUnion,

141 S. Ct. at 2210 n.6 (citing Chalkley v. Atlanta Coast Line R.R. Co., 150 Va.

301, 326–28 (1928); Mack v. Delta Air Lines, Inc., 639 F. App’x 582, 586 (11th

Cir. 2016) (unpublished)). The distinction the dissent draws is without a

difference.

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19-14434 Opinion of the Court 21

Hunstein’s debt “to the employees of an unauthorized third-party

mail house.” See id. at 31. We do not see how this moves the

needle. It does not say or even suggest that the employees have

read and understood the information. And reading the complaint

as a whole (as we must), the rest of the allegations show that the

disclosure was an electronic transfer between two companies.

Indeed, Hunstein’s own attorney declined to embrace the

dissent’s “eminently reasonable inference”—even with significant

encouragement to do so. He agreed at oral argument that

Hunstein had alleged that employees had “access” to his

information, but not that “anyone read or perceived it.” Oral

Argument at 6:33–7:45. There was an obvious reason for this

approach, which was also conceded at argument: the complaint

was drafted to allege a pure statutory violation, one that was

complete at the moment the lender hit “send” and transmitted the

information to Preferred Collection. Id. at 4:27–4:40; 9:27–9:54.

Though it is now clear (again as the lawyer conceded) that a pure

statutory violation is not enough to establish harm, Hunstein never

sought to replead his case. Id. at 7:29–7:39; 8:48–9:48.

Transmitting information that no one reads or perceives is

not publicity. Contrary to the dissent’s suggestion, we give

Hunstein “the benefit of the doubt”; we simply decline to rewrite

his complaint for him. Dissenting Op. at 37. “We will not imagine

or piece together an injury sufficient to give a plaintiff standing

when it has demonstrated none, and we are powerless to create

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22 Opinion of the Court 19-14434

jurisdiction by embellishing a deficient allegation of injury.”

Muransky, 979 F.3d at 925 (quotations and brackets omitted).

All that to say, nowhere does Hunstein suggest that

Preferred Collection’s communication reached, or was sure to

reach, the public. Quite the opposite—the complaint describes a

disclosure that reached a single intermediary, which then passed

the information back to Hunstein without sharing it more broadly.

That act cannot be said to have a “close relationship” with a

tort which, at its core, requires either actual public disclosure or a

substantial certainty that the disclosed information will reach the

public at large. None of that is present here; again, Hunstein did

not even allege that a single employee ever read or understood the

information about his debt. Under even the most generous reading

of his complaint, one company sent his information to another,

where it was “populated” into a private letter that was sent to his

own home. That is simply not enough.

Hunstein protests that Congress targeted “invasions of

individual privacy” when it passed the Fair Debt Collection

Practices Act. See 15 U.S.C. § 1692(a). We have no quarrel with

him on that front. But even assuming—which we do not—that

Congress was attempting to target the workaday vendor

relationships alleged here, congressional intent does not

automatically transform every arguable invasion of privacy into an

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19-14434 Opinion of the Court 23

actionable, concrete injury.8 As TransUnion explained, courts

have no “freewheeling power to hold defendants accountable for

legal infractions.” TransUnion, 141 S. Ct. at 2205 (quotation

omitted). Because Hunstein has alleged only a legal infraction—a

“bare procedural violation”—and not a concrete harm, we lack

jurisdiction to consider his claim.

The dissent takes issue with our element-for-element

approach. It claims that we relegate Congress to “dutifully

replicating and codifying preexisting common-law causes of

action” and that our approach has no “principled line.” Dissenting

Op. at 27, 14 & n.3. Respectfully, we think that these criticisms are

entirely off-base. The dissent confuses the question of whether this

plaintiff has alleged standing with the question of whether any

plaintiff could allege standing. Our standing inquiry centers on

whether a given plaintiff has pleaded injury—not whether a cause

of action is generally proper. The fact that one plaintiff, Hunstein,

has not pleaded injury under this statute does not show that no one

else can or will. And the dissent’s approach offers no line,

principled or otherwise; the common law analogy collapses if we

can rewrite a traditional tort to exclude an essential element.

8 The Supreme Court has said, for instance, that in the context of defamation,

sending information to “vendors that printed and sent” mailings was not

traditionally recognized “as actionable publication[].” TransUnion, 141 S. Ct.

at 2210 n.6.

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24 Opinion of the Court 19-14434

TransUnion illustrates both points. To begin, that case

shows how different facts can mean that some plaintiffs have

standing while others do not—under the same cause of action.

There, the deciding factor was whether misleading information

had been published about a given person. Here, the deciding factor

is whether information was publicized. In both cases, when an

element is entirely missing from the comparator tort, there is no

injury. Even so, and again in both cases, a substantive cause of

action remains on the books. And any injured party can invoke

that cause of action, so long as the plaintiff pleads an actual harm

that is at least analogous to one that was redressable at common

law.

TransUnion also shows why we cannot convert the tort of

public disclosure into a tort of private disclosure. When making a

comparison to the tort of defamation, it was straightforward for

the Court to expand the common-law element of “false

information” to the analogous category of “misleading

information.” Both inflict the same kind of harm for the same basic

reason; they damage a plaintiff’s reputation with inaccurate

information. So, under the TransUnion analysis, plaintiffs who

suffered reputational harm because of a statutory violation could

bring a lawsuit against those who committed the violation—even

though it would not have qualified as defamation under the

common law.

The same analogy does not hold here. Private disclosure is

not just a less extreme form of public disclosure. Publicity causes

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19-14434 Opinion of the Court 25

a qualitatively different harm, one that is essential to creating the

comparator tort in the first place—having some finite number of

people know (true) details about your life is fundamentally

different than having that information disseminated to the general

public. As the Restatement says, “it is not an invasion of the right

of privacy” to “communicate a fact concerning the plaintiff’s

private life to a single person or even to a small group of persons.”

Restatement (Second) of Torts § 652D cmt. a. “On the other hand,

any publication in a newspaper 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.” Id. The

distinction, the Restatement tells us, “is one between private and

public communication.” Id. And when one is substituted for the

other, the comparator tort becomes unrecognizable.9 TransUnion

does not allow for such “analogies.”

Before we close, a few words are necessary in response to

the dissenting opinion’s energetic attempt to manufacture a circuit

split. Dissenting Op. at 17–24. To start, six of the eight cases cited

as embodying the post-TransUnion framework pre-date

TransUnion. But that is really the least of the problems with the

dissent’s analysis. This grab-bag of cases about different alleged

9 One could even say, if using the dissent’s preferred terminology, that false

and misleading statements are different in degree, while public and private

disclosures are different in kind.

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26 Opinion of the Court 19-14434

harms, different common-law analogues, and different statutory

schemes offers no uniform test—much less one we have strayed

from here. And none address the problem we face: a pleading that

completely fails to allege an element essential to the harm set out

as a common-law comparator.

Indeed, the degree-of-harm inquiry so thoroughly endorsed

in the dissent may well be a helpful explanatory tool in other

cases—just not the one we have here. 10 Because Hunstein did not

allege any publicity at all, we cannot analyze the degree of that

non-publicity; as we have explained, the difference between public

and private is qualitative, not quantitative. The dissent, in pressing

its argument, seems to have forgotten its earlier concession that

finding an alleged injury in these pleadings was “on its face” in

tension with TransUnion. Hunstein, 17 F.4th at 1031. TransUnion

provides the path we follow here.

To the extent that we need to build on that approach, it will

have to wait for a case when the plaintiff actually pleads a harm

that is smaller in degree rather than entirely absent. For now,

TransUnion’s guidance is enough. As much as the dissent may

prefer a different approach to standing doctrine, see, e.g., Sierra v.

City of Hallandale Beach, 996 F.3d 1110, 1115–40 (11th Cir. 2021)

10 And perhaps not in the cases cited by the dissent, either—only three of them

even use the word “degree.”

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19-14434 Opinion of the Court 27

(Newsom, J., concurring), this decision (like Muransky before it) is

consistent with the course the Supreme Court has set out.

* * *

One benefit of the comparison we are asked to make with

common-law torts is that it allows us to better understand whether

a plaintiff has suffered a real harm. That is certainly true here. At

bottom, Hunstein is simply no worse off because Preferred

Collection delegated the task of populating data into a form letter

to a mail vendor; the public is not aware of his debt (at least, not

because of Preferred Collection’s disclosure to its vendor). Nor is

it clear, or even likely, that even a single person at the mail vendor

knew about the debt or had any reason—good, bad, or otherwise—

to disclose it to the public if they did. Given the obvious differences

between these facts and the traditional tort of public disclosure, we

find that no concrete harm was suffered here.

“No concrete harm, no standing.” TransUnion, 141 S. Ct. at

2214. Because Hunstein did not have standing, the district court

lacked jurisdiction to consider his claim. We therefore VACATE

the district court’s order and REMAND with instructions to dismiss

the case without prejudice.

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19-14434 PRYOR, C.J., Concurring 1

WILLIAM PRYOR, Chief Judge, joined by TJOFLAT, Circuit Judge,

concurring:

I join the majority opinion in full. I write separately to

identify other reasons why this appeal is “an exercise in simplicity.”

Maj. Op. at 15. The Supreme Court expressly rejected the dissent’s

theory that Hunstein has standing because Preferred disclosed

private information “to the vendors that printed and sent the

mailings that” Hunstein received. See TransUnion LLC v.

Ramirez, 141 S. Ct. 2190, 2210 n.6 (2021); Dissenting Op. at 16 n.4.

And Hunstein’s alleged injury bears little resemblance to the

public-disclosure tort on which the dissent relies. Dissenting Op. at

28–29.

The dissent asserts that “the majority agrees (or at least

doesn’t disagree) that only the element of “publicity” is in dispute.

Id. at 28; see also id. at 4–5. But that assertion is untrue. The three

elements of the traditional invasion-of-privacy harm are absent.

Hunstein’s complaint fails to allege a communication in which

anybody read his private information. See TransUnion, at 2210 &

n.6 (holding that objectionable information not read “does not

harm anyone”). It also fails to allege that his private information

reached the public. See Maj. Op. at 20. And it fails to allege anything

like the kind of “highly offensive” disclosures traditionally

actionable at common law. See RESTATEMENT (SECOND) OF TORTS

§ 652D (AM. L. INST. 1977). This appeal is not remotely “tricky.”

Contra Dissenting Op. at 1.

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2 PRYOR, C.J., Concurring 19-14434

A. The Supreme Court Expressly Rejected the Dissent’s

Disclosure-to-Mail-Vendor Theory.

TransUnion LLC v. Ramirez, 141 S. Ct. 2190, controls this

appeal. To determine whether Hunstein satisfies the concrete-

harm requirement, we ask whether his alleged injury “has a close

relationship to a harm traditionally recognized as providing a basis

for a lawsuit in American courts.” Id. at 2204 (internal quotation

marks omitted). Hunstein must “identif[y] a close historical or

common-law analogue for [his] asserted injury.” Id.

Hunstein and the dissent identify public disclosure of private

facts as a common-law analogue. Dissenting Op. at 28. That tort

involves “giv[ing] publicity to a matter concerning the private life

of another” that “would be highly offensive to a reasonable person”

and “is not of legitimate concern to the public.” RESTATEMENT

(SECOND) OF TORTS, supra, § 652D. And the dissent asserts that the

“dissemination of personal information to a [mail vendor’s]

employees” bears a close enough relationship to that tort.

Dissenting Op. at 29.

The Supreme Court in TransUnion expressly rejected the

dissent’s theory. The Court held that “the mere existence of . . .

misleading” information “in a consumer’s internal credit file at

TransUnion [does not] constitute[] a concrete injury.” See 141 S.

Ct. at 2209–10. The Court explained that “[p]ublication is essential

to liability in a suit for defamation.” Id. at 2209 (internal quotation

marks omitted). And if “misleading information sits in a company

database, the plaintiffs’ harm is roughly the same, legally speaking,

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19-14434 PRYOR, C.J., Concurring 3

as if someone wrote a defamatory letter and then stored it in her

desk drawer.” Id. at 2210. No publication means no concrete injury.

See id. The plaintiffs in TransUnion tried to avoid that problem by

deploying the same theory the dissent deploys here. They

“argue[d] that TransUnion ‘published’ the [misleading]

information internally . . . to employees within TransUnion and to

the vendors that printed and sent the mailings that the [plaintiffs]

received.” Id. at 2210 n.6. But the Supreme Court declared that

argument “unavailing.” Id.

The Supreme Court adopted the defendant’s argument

rejecting that theory. It doubted that intra-company disclosures

and disclosures to mail vendors were traditionally “actionable

publications.” Id. It added that the plaintiffs failed to prove that

their private information “was actually read and not merely

processed.” Id. And its bottom-line holding could not have been

clearer: the plaintiffs’ “theory circumvents a fundamental

requirement of an ordinary defamation claim—publication—and

does not bear a sufficiently ‘close relationship’ to the traditional

defamation tort to qualify for Article III standing.” Id.

That holding resolves this appeal. Bare “publication”

requires only that the defamatory information be read by

someone, while “publicity” requires that the information be read

by many. Compare RESTATEMENT (SECOND) OF TORTS, supra,

§ 652D cmt. a (“‘Publication’ . . . includes any communication by

the defendant to a third person.”), with id. (“[I]t is not an invasion

of the right of privacy . . . to communicate a fact concerning the

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4 PRYOR, C.J., Concurring 19-14434

plaintiff’s private life to a single person or even to a small group of

persons.”). All Hunstein alleges is that Preferred “disclosed

information . . . to the employees” of the mail vendor—at best, the

kind of non-actionable publication rejected in TransUnion. See 141

S. Ct. at 2210 n.6. And just as the Supreme Court rejected non-

actionable “publications for the purposes of the tort of

defamation,” id., we must reject non-actionable publications for

purposes of privacy torts, see RESTATEMENT (SECOND) OF TORTS,

supra, § 652D cmt. a, illus. 1 (“A, a creditor, writes a letter to the

employer of B, his debtor, informing him that B owes the debt and

will not pay it. This is not an invasion of B’s privacy . . . .”). So, the

dissent’s publication-to-mail-vendor theory “circumvents a

fundamental requirement of an ordinary [public-disclosure] claim

. . . and does not bear a sufficiently close relationship to the

traditional . . . tort to qualify for Article III standing.” See

TransUnion, 141 S. Ct. at 2210 n.6 (internal quotation marks

omitted).

To be sure, the Supreme Court also held that the plaintiffs’

mail-vendor theory had been forfeited, see id., but its express

rejection of that theory binds us as an alternative holding. The

Supreme Court has made clear that when a court rejects an

argument as unpreserved but then concludes that it is “[i]n any

event . . . unavailing,” see id., the analysis that follows “[i]n any

event” forms an alternative holding. See Sochor v. Florida, 504 U.S.

527, 534 (1992) (internal quotation marks omitted). And

“alternative holdings are not dicta, but instead are as binding as

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19-14434 PRYOR, C.J., Concurring 5

solitary holdings.” Bravo v. United States, 532 F.3d 1154, 1162 (11th

Cir. 2008). When the Supreme Court rejected the mail-vendor

argument for Article III standing as unpreserved, it also

alternatively rejected it as “unavailing.” TransUnion, 141 S. Ct. at

2210 n.6. We are bound by that alternative rationale. See Bravo,

532 F.3d at 1162.

The dissent mentions only in passing that the Supreme

Court “noted” that “intra-company disclosures typically aren’t

‘actionable publications,’ at least for defamation purposes.”

Dissenting Op. at 35 n.12 (quoting TransUnion, 141 S. Ct. at 2210

n.6). That cursory reference conveniently obscures the fact that the

Court rejected a theory from intra-company disclosures and

disclosures to “the [mail] vendors that printed and sent the

mailings,” see TransUnion, 141 S. Ct. at 2210 n.6—exactly what is

alleged here. And the dissent makes no effort to explain why

disclosures to employee agents are relevantly different from

disclosures to non-employee agents in this context. But see

RESTATEMENT (THIRD) OF AGENCY § 1.01 cmt. g (AM. L. INST. 2006)

(“The common law of agency encompasses employment as well as

nonemployment relations.”). In the light of the clarity with which

TransUnion rejected the dissent’s theory, it is a tad rich for the

dissent to accuse the majority of “disregard[ing],” “flout[ing],” and

“contraven[ing] . . . key aspects of” TransUnion. Dissenting Op. 1–

2, 11.

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6 PRYOR, C.J., Concurring 19-14434

B. Hunstein’s Alleged Injury Is Not Remotely Like the Public-

Disclosure Tort.

Even if the Supreme Court had not so clearly rejected the

dissent’s mail-vendor theory, Hunstein’s claim would still fail. The

public-disclosure tort on which the dissent relies is not “a close

historical or common-law analogue for [Hunstein’s] asserted

injury.” TransUnion, 141 S. Ct. at 2204. Hunstein’s complaint lacks

allegations that would support any of the three key elements that

constitute the traditionally actionable invasion-of-privacy harm.

The dissent’s approach would supplant the Supreme Court’s test

with one that “leans more toward a no-match test.” Hunstein v.

Preferred Collection & Mgmt. Servs., Inc., 17 F.4th 1016, 1040 n.2

(11th Cir. 2021) (Tjoflat, J., dissenting) (internal quotation marks

omitted), vacated, 17 F.4th 1103 (11th Cir. 2021). That approach is

foreclosed by TransUnion’s holding: if an element whose presence

is necessary for the plaintiff’s traditionally recognized injury is

absent, there is no concrete injury. TransUnion, 141 S. Ct. at 2209–

10 (holding that there is no concrete injury if misleading

information exists without the “essential” element of publication).

I divide the remaining discussion in two parts. First, I explain

that Hunstein lacks a concrete injury because his complaint failed

to allege that anybody read his private information. Second, I

explain that the private disclosure Hunstein alleges is not one that

the law traditionally recognized as highly offensive.

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19-14434 PRYOR, C.J., Concurring 7

1. Hunstein’s Complaint Fails to Allege that Anybody Read His

Private Information.

The majority ably shows that “Hunstein makes no

allegations that suggest publicity.” Maj. Op. at 20. The complaint

defeats any inference that Hunstein’s private information reached

“the public at large” or was published such that the information

was “substantially certain to become . . . public knowledge.”

RESTATEMENT (SECOND) OF TORTS, supra, § 652D cmt. a. And the

majority correctly explains that “Hunstein did not even allege that

a single employee ever read or understood the information about

his debt.” Maj. Op. at 22. I write to highlight the fact that

TransUnion makes that last point dispositive.

Hunstein failed to allege the relevant sense of

communication. “Publicity” means “communicating [the matter]

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.” RESTATEMENT (SECOND) OF TORTS, supra, § 652D

cmt. a (emphases added). And “[t]he word ‘communication’ is used

to denote the fact that one person has brought an idea to the

perception of another.” RESTATEMENT OF TORTS § 559 cmt. a.

The lack of any allegation of communication in that sense is

dispositive. The Supreme Court explained that “[t]he mere

presence” of allegedly harmful information “causes no concrete

harm.” TransUnion, 141 S. Ct. at 2209–10. If the information is not

perceived, “the plaintiffs’ harm is roughly the same, legally

speaking, as if someone wrote a defamatory letter and then stored

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8 PRYOR, C.J., Concurring 19-14434

it in [a] desk drawer.” Id. at 2210. “A letter that is not sent does not

harm anyone, no matter how insulting the letter is.” Id. And the

Court reiterated that point when it rejected the dissent’s mail-

vendor theory. Id. at 2210 n.6. Because perception of the

information is a requirement of communication, a plaintiff must

allege “that the document was actually read and not merely

processed.” Id. at 2210 n.6. If that “fundamental requirement” of

the tort is absent, Hunstein’s claim “does not bear a sufficiently

close relationship” to the public-disclosure tort. Id. (internal

quotation marks omitted).

Hunstein nowhere alleges that anyone at the mail vendor

perceived his private information. Maj. Op. at 21–22. At oral

argument, Hunstein’s counsel conceded that Hunstein alleges only

that employees had “access” to his information and that he did “not

allege[] that anyone read or perceived it.” Oral Argument at 6:30–

7:42. Against Hunstein’s own position, the dissent plucks one

allegation out of context. See Dissenting Op. at 27. The complaint

does indeed allege that Preferred “disclosed information . . . to the

employees” of the mail vendor. So, the dissent infers that “living,

breathing, thinking individuals” read the information. Dissenting

Op. at 34. And the dissent cannot imagine “what other inference

we could draw from that allegation.” Id. The dissent’s lack of

imagination results from ignoring other allegations that explain the

kind of disclosure that Hunstein alleges.

The dissent ignores specific allegations that clarify the

general one it plucks out of context. The complaint alleges that

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19-14434 PRYOR, C.J., Concurring 9

“Preferred disclosed to the mail house” the information and that

“[t]he mail house then populated some or all of this information

into a pre-written template, printed, and mailed the letter” to

Hunstein. (Emphasis added.) The complaint described the nature

of the “communication” and the “disclosure” as the bare electronic

conveyance of information “to a third-party.” “These specific

allegations of what the [disclosure] consisted of govern over the

general allegation that there was [disclosure].” See SA Palm Beach,

LLC v. Certain Underwriters at Lloyd’s London, 32 F.4th 1347,

1362 (11th Cir. 2022). The dissent fails to mention the specific

allegations that defeat its inference. But see id. (“[T]aking the

allegations of a complaint as true does not require us to ignore

specific factual details of the pleading in favor of general or

conclusory allegations.” (internal quotation marks omitted)). So

Preferred did indeed disclose information to the mail vendor’s

agents, but the complaint describes the same automatic process

that the Supreme Court explained does not constitute an injury.

See TransUnion, 141 S. Ct. at 2210 n.6 (requiring that “the

document was actually read and not merely processed ” (emphasis

added)).

TransUnion’s rule is simple: no communication, no

concrete injury. Id. at 2210 & n.6. Hunstein failed to allege

communication. We cannot speculate for Hunstein that someone

read information that was “populated . . . into a pre-written

template” to say otherwise. See Muransky v. Godiva Chocolatier,

Inc., 979 F.3d 917, 925 (11th Cir. 2020) (en banc) (“[W]e are

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10 PRYOR, C.J., Concurring 19-14434

powerless to create jurisdiction by embellishing a deficient

allegation of injury.” (internal quotation marks omitted)). It

follows that the complaint fails to allege a concrete injury.

2. Hunstein’s Complaint Fails to Allege a Highly Offensive

Disclosure.

The bare communication of private information to another

is not “a harm traditionally recognized as providing a basis for a

lawsuit in American courts.” TransUnion, 141 S. Ct. at 2204

(internal quotation marks omitted). Taking personal offense has

long been insufficient to constitute a legal injury. See id. at 2210.

For example, communicating defamatory information to the

plaintiff alone was not actionable in tort. See THEODORE F. T.

PLUCKNETT, A CONCISE HISTORY OF THE COMMON LAW 496 (5th ed.

1956) (explaining that “[p]ublication to a third party was clearly

necessary, for in no other way could damage result ” (emphasis

added)). Moreover, “[t]he law is not for the protection of the

hypersensitive, and all of us must, to some reasonable extent, lead

lives exposed to the public gaze.” W. PAGE KEETON ET AL., PROSSER

& KEETON ON THE LAW OF TORTS § 117, at 856 (5th ed. 1984). For

that reason, the public-disclosure tort requires that the publicity

given to private information be “of a kind highly offensive to the

ordinary reasonable man.” RESTATEMENT (SECOND) OF TORTS,

supra, § 652D cmt. c (emphasis added).

Consistent with that history, personal offense alone is not a

concrete injury. See TransUnion, 141 S. Ct. at 2209–10. “[T]he

Supreme Court has long rejected allegations of offense, fear, and

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19-14434 PRYOR, C.J., Concurring 11

stigma as sufficient to establish standing.” Kondrat’yev v. City of

Pensacola, 949 F.3d 1319, 1337 (11th Cir. 2020) (Newsom, J.,

concurring). Some asserted injuries are “too trivial to cause harm,”

Strubel v. Comenity Bank, 842 F.3d 181, 190 (2d Cir. 2016) (internal

quotation marks omitted), such as “the dissemination of an

incorrect zip code,” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1550

(2016). Because mere insult was traditionally insufficient in tort, the

Supreme Court has held that taking personal offense to being

labeled a potential terrorist is not enough unless that misleading

information is communicated to someone else. See TransUnion,

141 S. Ct. at 2209–10. So, if Hunstein fails to allege conduct that is

offensive because it tends to cause a traditionally actionable harm,

his asserted injury is not concrete.

Although a plaintiff need not satisfy all common-law

elements precisely, Hunstein fails to allege anything remotely like

the kind of offensive conduct for which the law traditionally

provided a remedy. Contra Dissenting Op. at 28 (“the majority

agrees (or at least doesn’t disagree) that Hunstein’s allegations

satisfy the highly-offensive . . . element[].”). The complaint alleges

that “Preferred disclosed to the mail house” Hunstein’s “son’s

name” and the fact that Hunstein owed $2,449.23 for “his son’s

medical treatment.” Hunstein is not suing on behalf of his son, so

he lacks standing to complain about the publication of his son’s

name and his status as a patient. See Spokeo, 136 S. Ct. at 1548

(explaining that, “[f]or an injury to be particularized, it must affect

the plaintiff in a personal and individual way” such that he

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12 PRYOR, C.J., Concurring 19-14434

“personally has suffered some actual or threatened injury” (internal

quotation marks omitted)). But even setting that obstacle to the

side, the collection notice that Hunstein attached to his complaint

contains no information about “a person’s medical condition.” See

Wolfe v. Schaefer, 619 F.3d 782, 784 (7th Cir. 2010); contra

Dissenting Op. at 35 n.12. And it contains little personal

information: it identifies only the patient’s name, the debtor’s

name, and the amount due.

Publishing that kind of information to another has never

been “a harm traditionally recognized as providing a basis for a

lawsuit.” See TransUnion, 141 S. Ct. at 2204 (internal quotation

marks omitted). Telling a third person another’s name is not the

kind of offense for which the law has ever provided a remedy. It is

hard to see how being labeled a “patient” constitutes a concrete

injury. If a person walks out of a doctor’s office, passersby could

infer that he is a patient. If a passerby then tells another that he saw

the person walk out of the doctor’s office, did the person suffer a

concrete injury? Cf. Davis v. Gen. Fin. & Thrift Corp., 57 S.E.2d

225, 227 (Ga. Ct. App. 1950) (explaining that “the protection

afforded by the law to the right of privacy must be restricted to

ordinary sensibilities and not to supersensitiveness or agoraphobia”

and that “[t]here are some shocks, inconveniences and annoyances

which members of society in the nature of things must absorb

without the right of redress” (internal quotation marks omitted)).

Hunstein might find that label offensive or insulting. But see

RESTATEMENT (SECOND) OF TORTS § 652D cmt. c (“[M]inor and

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19-14434 PRYOR, C.J., Concurring 13

moderate annoyance, as for example through public disclosure of

the fact that the plaintiff has clumsily fallen downstairs and broken

his ankle, is not sufficient . . . .”). But more is needed to allege a

concrete injury. See TransUnion, 141 S. Ct. at 2209–10.

The same is true of identifying the debtor and his debt to

make a reasonable effort to collect. “Many American courts did not

traditionally recognize,” id. at 2210 n.6, that reasonable debt-

collection efforts were within the harms for which the law

provided a remedy. E.g., Housh v. Peth, 133 N.E.2d 340, 344 (Ohio

1956) (explaining that the “law in nowise prevents a creditor from

making a reasonable effort to collect a debt”). For that reason, the

law did not regard as a harmful invasion of privacy the publication

of debt-related information to the debtor’s employer.

RESTATEMENT (SECOND) OF TORTS § 652D cmt. a, illus. 1 (“A, a

creditor, writes a letter to the employer of B, his debtor, informing

him that B owes the debt and will not pay it. This is not an invasion

of B’s privacy . . . .” (emphasis added)). Likewise for publishing

debt-related information to the employees of a telegraph company.

See, e.g., Davis, 57 S.E.2d at 227 (“[A] publication to a few

employees of a telegraph company who are not alleged to be

acquainted with the alleged injured party would not offend the

sensibilities of a person who has gone into debt and subjected

himself to the standard communications of a civilized society.”).

Because Hunstein fails to allege offensive conduct that “cause[s]

the sort of reputational harm remediated at the common law,”

Maj. Op. at 4, his theory “does not bear a sufficiently close

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14 PRYOR, C.J., Concurring 19-14434

relationship to the traditional . . . tort,” see TransUnion, 141 S. Ct.

at 2210 n.6 (internal quotation marks omitted).

To be sure, “Congress may elevate to the status of legally

cognizable injuries concrete, de facto injuries that were previously

inadequate in law.” See id. at 2204–05 (internal quotation marks

omitted). Congress could, for example, make actionable a

publication that is offensive because of its tendency to cause

reputational harm even though the common law did not make that

publication actionable. See id. at 2209–10. And Congress need not

condition providing a remedy for reputational harm on the degree

of offensiveness the common law required.

But personal offense, by itself, is not a de facto injury. And

Hunstein’s allegation that Preferred injured him by disclosing to a

mail house that he has a medical bill constitutes mere personal

offense; that conduct bears no relationship to traditionally

recognized harms. For that reason, Hunstein failed to allege

anything “remotely harmful.” See id. at 2204–05 (internal

quotation marks omitted).

Make no mistake—this appeal is an exercise in simplicity in

more ways than one. TransUnion expressly rejected the dissent’s

publication-to-mail-vendor theory. Id. The dissent obscures that

fact by asserting that the majority adopts a perfect-match test. See

Dissenting Op. at 13, 27-28. Not true. We apply TransUnion’s

simple rule that an element must be present if that element is

necessary for the presence of the harm that was traditionally

actionable. See TransUnion, 141 S. Ct. at 2209–10 (holding that

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19-14434 PRYOR, C.J., Concurring 15

publication is necessary for there to be a concrete injury but that

falsity is not because publication of misleading information can also

cause the same kind of significant reputational harm traditionally

actionable as defamation); Maj. Op. 3, 13–14, 17. Hunstein fails to

allege that anyone read his private information, that it reached the

public, or that the disclosure caused anything more than personal

offense. Supreme Court precedent requires us to reject the dissent’s

“no-match” test. Hunstein, 17 F.4th at 1040 n.2 (Tjoflat, J.,

dissenting) (internal quotation marks omitted).

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19-14434 Newsom, J., Dissenting 1

NEWSOM, Circuit Judge, joined by JORDAN, ROSENBAUM, and JILL

PRYOR, Circuit Judges, dissenting:

The majority insists that deciding this case is “an exercise in

simplicity.” Maj. Op. at 15. Boy, I disagree—I think it’s actually (to

use another of the majority’s terms) pretty “tricky.” Id. at 2. And

to be honest, I think the majority has made the case “simpl[e]” only

by whistling past its complexities and decreeing a conclusion rather

than grappling with the subtleties of the standing issue that it

presents. Today’s majority faults the now-vacated panel opinion

for the “energy” that it expended in its standing analysis. Id. at 6.

The majority, it seems to me, expends far too little.

Boiled to its essence, the majority’s analysis proceeds as

follows: (1) Richard Hunstein alleged nothing more than that a

debt-collector, Preferred Collections & Management Services, Inc.,

disclosed his private information to a third-party mail vendor,

CompuMail Information Services, Inc.; (2) the common-law

comparator under which Hunstein is traveling in his effort to

establish Article III standing—the sub-species of the invasion-of-

privacy tort known as “public disclosure of private facts”—

requires, as one of its “essential” elements, that the defendant have

“give[n] publicity to a matter concerning the private life” of the

plaintiff; (3) because Preferred’s disclosure of Hunstein’s

information was insufficiently public to satisfy that tort’s

“publicity” element, the common-law analogy—and with it,

Hunstein’s standing—fails.

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2 Newsom, J., Dissenting 19-14434

The majority’s conclusion is the product of several

interrelated errors. First, and perhaps most ironically, the

majority’s analysis disregards—and ultimately contravenes—key

aspects of the very decisions on which it purports to principally

rely, Spokeo, Inc. v. Robins, 578 U.S. 330 (2016), and TransUnion

LLC v. Ramirez, 141 S. Ct. 2190 (2021). Second, the majority

studiously ignores the analytical framework that both parties and

at least seven other circuits agree should govern the standing

inquiry in the wake of Spokeo and TransUnion. (Nor, tellingly,

does the majority offer any meaningful alternative.) And finally,

when the rubber meets the road, the majority misstates the explicit

allegations of Hunstein’s complaint in favor of its own anodyne

paraphrase.

For these reasons, and because under the proper—and

heretofore agreed-upon—analysis, Hunstein has alleged sufficient

facts to support Article III standing at the motion-to-dismiss stage,

I respectfully dissent.

I

Before jumping into my critique, a bit of table-setting. First,

let me briefly recap the essential facts: Richard Hunstein incurred

a debt to Johns Hopkins All Children’s Hospital arising out of his

minor son’s medical treatment. The hospital assigned the debt to

Preferred Collections & Management Services, Inc. for collection.

Preferred in turn hired CompuMail Information Services, Inc., a

California-based commercial mail vendor, to handle the collection.

Preferred electronically transmitted to CompuMail—and, in

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19-14434 Newsom, J., Dissenting 3

particular, the complaint says, to CompuMail’s “employees”—

“sensitive medical information” about Hunstein, including not

only (1) his status as a debtor and (2) the exact balance of his debt

and the entity to which it was owed, but also (3) that the debt

concerned his son’s medical treatment and (4) his son’s name.

CompuMail used that information to generate and send a dunning

letter to Hunstein.

Hunstein filed a complaint, asserting, as relevant here, that

“when it disclosed information about [his] purported . . . debt to

the employees of an unauthorized third-party mail house,” Pl.’s

Compl. at 5, Preferred violated a provision of the Fair Debt

Collection Practices Act that generally prohibits debt collectors

from communicating consumers’ personal information to third

parties “in connection with the collection of any debt,” 15 U.S.C.

§ 1692c(b). The district court dismissed Hunstein’s action for

failure to state a claim. Hunstein appealed, and a three-judge panel

on which I served requested supplemental briefing on the

threshold question whether he had Article III standing to sue. The

panel twice concluded that he did—both initially, before the

Supreme Court issued its decision in TransUnion, and then again

thereafter, in an amended opinion and over a dissent—and

reversed the district court’s dismissal. See Hunstein v. Preferred

Collection & Mgmt. Servs., Inc., 17 F.4th 1016, 1024 (11th Cir.

2021). The en banc court then vacated the panel’s opinion to

reconsider Hunstein’s standing. See 17 F.4th 1103 (11th Cir. 2021).

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4 Newsom, J., Dissenting 19-14434

Second, let me narrow the scope of the dispute. There are,

happily, more than a few things on which the majority and I agree:

1. We agree, for instance, that pleading “[a] ‘bare statutory

violation’ is not enough,” in and of itself, to establish a

“concrete” injury for Article III standing purposes. Maj. Op.

at 10 (quoting Muransky v. Godiva Chocolatier, Inc., 979

F.3d 917, 936 (11th Cir. 2020) (en banc)). So the mere fact

that Hunstein alleges that Preferred violated the FDCPA

when it disclosed his private information to CompuMail’s

employees does not alone suffice.

2. We agree that in determining the concreteness of a plaintiff’s

injury resulting from a statutory violation, the Supreme

Court has instructed us to focus on whether that injury has

a “close relationship” to “a harm ‘traditionally’ recognized

as providing a basis for a lawsuit in American courts.” Maj.

Op. at 11 (quoting TransUnion, 141 S. Ct. at 2204).

3. We also agree that when comparing a statutory harm to a

common-law analogue for the purpose of conducting the

“close relationship” analysis, the Court has further

instructed us not to require an “exact duplicate.” Maj. Op.

at 8 (quoting TransUnion, 141 S. Ct. at 2209). Instead, as the

majority here rightly recognizes, we should ask only

whether the alleged statutory harm is “close enough” to a

common-law comparator. Id. at 13.

4. We agree that in this particular case the applicable common-

law comparator is the tort known as “public disclosure of

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19-14434 Newsom, J., Dissenting 5

private facts.” Maj. Op. at 4; see also TransUnion, 141 S. Ct.

at 2204 (recognizing “disclosure of private information” as a

valid Article III analogue).

5. Finally, the majority and I seem to agree (or at least not to

disagree) that Hunstein’s allegations satisfy two of that tort’s

three elements—namely, that Preferred’s disclosure of what

he calls “sensitive medical information” concerning his

young son’s treatment “(a) would be highly offensive to a

reasonable person, and (b) is not of legitimate concern to the

public.” Restatement (Second) of Torts § 652D (1977); see

also Maj. Op. at 16–17 & n.5 (acknowledging those elements

only “for information’s sake”). 1

The majority identifies a single—and in its view, fatal—

“problem” with Hunstein’s theory of standing: The harm that he

alleges, it says, “lacks a necessary element of the comparator tort—

1All the majority can bring itself to say about the offense and public-concern

elements, without any explanation whatsoever, is that they are—or might

be?—“up for debate.” Maj. Op. at 16 n.4 (citing Hunstein, 17 F.4th at 1041–44

(Tjoflat, J., dissenting). Because the majority doesn’t “go further,” id., I won’t

either, except to point readers to the panel’s fairly detailed investigation of

those two elements. For its part, the concurring opinion confidently asserts

that all “three elements . . . are absent” from Hunstein’s case, Pryor

Concurring Op. at 1, only to omit any discussion of the public-concern

element, see generally id. On the question whether the disclosure of

Hunstein’s private medical-related information here was, for Article III

purposes, close enough to the kind of disclosure that would be “highly

offensive” to the ordinary person, we’ll just have to agree to disagree.

Compare Hunstein, 17 F.4th at 1029 n.8, with Pryor Concurring Op. at 9–14.

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6 Newsom, J., Dissenting 19-14434

the requirement that the disclosure be public.” Maj. Op. at 3; see

also Restatement (Second) of Torts § 652D (“One who gives

publicity to a matter concerning the private life of another is

subject to liability . . . .” (emphasis added)). “[W]ithout publicity,”

the majority continues, “a disclosure cannot possibly cause the sort

of reputational harm remediated at the common law.” Maj. Op. at

4. And because “the elements do not match up,” the majority

holds, Hunstein can’t demonstrate Article III standing. Id. at 3.

The dispute here, therefore, centers on one element of a

three-element tort—and, in particular, on whether Hunstein’s

allegations concerning that tort’s “publicity” element, though not

an “exact duplicate,” are “close enough” for Article III purposes.

The majority and I disagree about how close is “close enough,”

about how the “close enough” question should be evaluated, and

ultimately, about whether Hunstein’s publicity-related allegations

satisfy the “close enough” standard. That disagreement is narrow,

but it is profound.

II

As I’ve said, the majority’s conclusion here—that Hunstein

lacks Article III standing because he hasn’t alleged a sufficiently

“public” disclosure of his private information—rests on three

interrelated errors. First, the majority disregards key aspects of the

Supreme Court’s decisions in Spokeo and, even more so,

TransUnion. Second, the majority ignores an entire corpus of

circuit-level precedent that has grown up in the wake of Spokeo

and TransUnion as a means of evaluating whether a plaintiff’s

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19-14434 Newsom, J., Dissenting 7

statutory-harm allegations bear a “close relationship” to a

common-law analogue. And finally, as a capper, the majority

whitewashes the explicit allegations of Hunstein’s complaint.

Let me explain.

A

The majority leans heavily on the Supreme Court’s

decisions in Spokeo and, especially, TransUnion, invoking the

former almost 20 times, the latter more than 40. To be sure,

TransUnion, in particular, looms large here, and warrants a close

look—closer, I fear, than the majority gives it. As I will explain,

although the majority insists that TransUnion supports (even

requires) its conclusion, it conspicuously disregards features of that

decision that, in fact, fatally undermine its position.

In TransUnion, a credit-reporting agency compiled personal

and financial information about individual consumers, created

reports, and then sold those reports to third parties. See 141 S. Ct.

at 2201. TransUnion, the agency, introduced an add-on product,

OFAC Name Screen Alert, which compared an individual

consumer’s name against a list of individuals deemed a threat to

national security by the Treasury Department’s Office of Foreign

Assets Control and placed an alert on the credit report of any

consumer whose name was a potential match. See id. A class of

consumers with OFAC alerts on their accounts sued TransUnion

under the Fair Credit Reporting Act, which they alleged it had

violated by failing to use reasonable procedures to assure the

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8 Newsom, J., Dissenting 19-14434

“maximum possible accuracy” of their credit files. See id. at 2202.

As relevant here, the question for the Supreme Court was whether

the alleged statutory violations constituted Article-III-qualifying

concrete injuries.

Echoing its earlier decision in Spokeo, the Court in

TransUnion emphasized that in determining concreteness, “courts

should assess whether the alleged injury to the plaintiff has a ‘close

relationship’ to a harm ‘traditionally’ recognized as providing a

basis for a lawsuit in American courts.” Id. at 2204 (quoting

Spokeo, 578 U.S. at 341). “That inquiry,” the Court continued,

“asks whether plaintiffs have identified a close historical or

common-law analogue for their asserted injury.” Id. And while

the Court firmly rejected any suggestion that “federal courts [may]

loosen Article III based on contemporary, evolving beliefs about

what kinds of suits should be heard,” it also cautioned that Spokeo’s

focus on “close” common-law analogues “does not require an exact

duplicate in American history and tradition.” Id. (emphasis added);

accord, e.g., Muransky, 979 F.3d at 926 (noting that the “fit

between a new statute and a pedigreed common-law cause of

action need not be perfect”).

The answer to the “close relationship” question in the case

before it, the TransUnion Court held, depended on the particular

class members’ allegations. Those who presented evidence that

their credit reports had been disseminated to third parties

established a concrete injury bearing the requisite relationship to

the common-law tort of defamation, and thus concrete injury. See

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19-14434 Newsom, J., Dissenting 9

141 S. Ct. at 2208–13. Conversely, those whose credit reports had

not been provided to third parties did not. See id. In the Court’s

words, the latter group of plaintiffs suffered no concrete harm

because the inaccurate information “s[at] in [TransUnion’s

internal] database” and was never “disclosed to a third party.” Id.

at 2210.

The majority’s TransUnion-related errors are twofold. First,

the majority oversimplifies and overplays the aspects of

TransUnion that it likes, ignoring critical distinctions between that

case and this one. Second, and worse, the majority disregards the

aspects of the decision that it doesn’t like and that, properly

understood, subvert its analysis and conclusion. I’ll take those

errors in turn.

1

The majority takes the TransUnion Court’s denial of

standing to the plaintiffs whose reports hadn’t been disclosed to

third parties to dictate the outcome of this case. See Maj. Op. at

14. But TransUnion’s holding to that effect is distinguishable in

two significant respects.

First, it arose in a dramatically different procedural posture.

The case in TransUnion proceeded beyond the pleadings and

summary judgment and went all the way to a jury; accordingly, the

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

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

evidence adduced at trial.” 141 S. Ct. at 2208 (quoting Lujan v.

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10 Newsom, J., Dissenting 19-14434

Defenders of Wildlife, 504 U.S. 555, 561 (1992)). Hunstein’s case,

by contrast, never got past the motion-to-dismiss stage, at which,

of course, we must accept the facts alleged in his complaint as true

and draw all reasonable inferences in his favor. See, e.g., K.T. v.

Royal Caribbean Cruises, Ltd., 931 F.3d 1041, 1043 (11th Cir. 2019).

We thus have no “evidence” by which to evaluate whether, in the

majority’s words, anyone at CompuMail “ever read or understood

the information about [Hunstein’s] debt.” Maj. Op. at 22; see also

TransUnion, 141 S. Ct. at 2210 n.6 (faulting the plaintiffs there for

failing to adduce “evidence” that their information “was actually

read and not merely processed”). What we do have, it seems to

me, are (1) Hunstein’s explicit allegation that Preferred “disclosed”

his son’s “sensitive medical information” to CompuMail’s

“employees,” and (2) the eminently reasonable inference that the

flesh-and-blood individuals to whom that information was

disclosed read it. (I’ll have much more to say below about the

significance of Hunstein’s “employees” allegation—and the

majority’s refusal to meaningfully engage it. See infra at 25–31.)

Second, the plaintiffs in TransUnion to whom the Supreme

Court denied standing had utterly and completely failed—even

following a full-blown trial—to produce any evidence of any

disclosure of any sort. As the majority here accurately summarizes

the facts of TransUnion, the OFAC alerts about which those

plaintiffs complained “had not been shared with any creditors.”

Maj. Op. at 13. Rather, the alerts had remained safely tucked away

“in [the plaintiffs’] internal credit file[s]” at the credit-reporting

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19-14434 Newsom, J., Dissenting 11

agency, 141 S. Ct. at 2209, and were thus “kept private,” Maj. Op.

at 14. Accordingly, not only had the plaintiffs there failed to

demonstrate “publication”—an element of the defamation claim

they sought to use as a comparator—they had failed to

demonstrate anything like it. That’s not true here. Hunstein

alleged a disclosure to a third party and its employees—the

majority just thinks that disclosure was insufficiently “public.” For

reasons I’ll explain, while Hunstein might not have alleged that

Preferred disseminated his private information broadly enough to

satisfy the public-disclosure tort’s “publicity” element if he were

seeking to prove that claim on the merits, he most certainly alleged

a dissemination that, on a proper understanding, was “close

enough” to satisfy Article III.

2

Not only does the majority paper over key distinctions

between TransUnion and this case, it actually flouts TransUnion in

two important respects—one general and the other quite specific.

As a general matter, the majority fundamentally

misunderstands the “close relationship” standard that the

TransUnion Court reiterated. Although it dutifully recites the

Supreme Court’s reassurance that an intangible-injury plaintiff

needn’t “exact[ly] duplicate” a common-law cause of action to

demonstrate Article III standing, the majority nonetheless insists

that all “element[s] ‘essential to liability’ under the comparator

tort” must be present. Maj. Op. at 8 (quoting TransUnion, 141 S.

Ct. at 2209); see also, e.g., id. at 3 (noting that “the elements [must]

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12 Newsom, J., Dissenting 19-14434

match up”). I fail to understand—and the majority never

explains—how its jot-for-jot, element-for-element requirement

isn’t just a dressed-up version of the very “exact duplicate” standard

that the Supreme Court has flatly disavowed. After all, if the

majority is going to require a plaintiff like Hunstein to satisfy every

element of a common-law claim—without any accommodation at

all—how isn’t it, in practice, requiring an “exact duplicate”? Under

what circumstances could a plaintiff meet every element of a

common-law cause of action without having “exact[ly]

duplicate[d]” the common-law claim? So far as I can tell, that’s an

empty set.

To be clear, it’s no answer to say—as the majority vaguely

suggests—that its element-for-element requirement complies with

the Supreme Court’s “exact duplicate” prohibition because it

applies only to those elements that are “essential to liability.” Maj.

Op. at 8 (quoting TransUnion, 141 S. Ct. at 2209); see also, e.g., id.

at 15 (holding that a plaintiff must allege every “element essential

to” its “historical comparator”); id. at 19 n.6 (“essential element”);

id. at 23 (“essential element”); id. at 25 (“essential”); id. at 26

(“essential”). What elements of a common-law claim aren’t

“essential to liability”? Isn’t essentiality what makes an “element”

an element? Black’s confirms what we already know: An

“element” is “[a] constituent part of a claim that must be proved

for the claim to succeed.” Element, Black’s Law Dictionary (11th

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19-14434 Newsom, J., Dissenting 13

ed. 2019) (emphasis added). 2 I see no way around the conclusion

that the majority’s rigid element-for-element standard effectively

reimposes the very “exact duplicate” test that the TransUnion

Court expressly renounced.

To be clear, though, the majority’s decision doesn’t just

contravene TransUnion’s language, it contravenes TransUnion’s

holding. The credit-reporting agency in TransUnion argued that

even those plaintiffs whose reports were disclosed to third parties

didn’t suffer a harm with a sufficiently “close relationship” to the

common-law tort of defamation because, it said, the OFAC alerts

on the disseminated credit reports were only “misleading”—not

“literally false,” as proof of defamation requires. See 141 S. Ct. at

2209 (citing Restatement (Second) of Torts § 558); see also

Defamation, Black’s Law Dictionary (defining “defamation” to

require “a false statement”). The Supreme Court rejected the

agency’s perfect-match contention, emphasizing—again—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.” TransUnion, 141 S. Ct. at 2209; see also id. at 2204

(“Spokeo does not require an exact duplicate in American history

2 Think about it this way: Among (1) duty, (2) breach, (3) causation, and

(4) damages, which isn’t “essential” to a tort plaintiff’s negligence claim? Can

a fraud plaintiff fail to show either (1) a false statement, (2) materiality,

(3) reasonable reliance, (4) causation, or (5) damages and yet still expect to

recover?

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14 Newsom, J., Dissenting 19-14434

and tradition.”). Despite the absence of any proof of actual falsity—

an element all accepted as essential to a successful defamation

claim—the Court found that the plaintiffs whose reports had been

disseminated had Article III standing. Id. at 2209.

The majority acknowledges, as it must, that the Court in

TransUnion held that “for purposes of comparing the class

members’ alleged harms to defamation . . . misleading information

was close enough, element-wise, to false information.” Maj. Op.

at 13 (emphasis added); see also id. at 14 (noting the TransUnion

Court’s conclusion that “misleading information—like false

information—can lead to unfair reputational harm if publicized”).

Conspicuously, though, the majority never convincingly explains

why the showing of near falsity in TransUnion (i.e.,

misleadingness) was “close enough” to support standing by

analogy to a defamation claim, and yet the allegation of near

publicity here (i.e., dissemination to an as-yet-unknown number of

employees) is not “close enough” to support standing by analogy

to a public-disclosure-of-private-facts claim. I fail to see a principled

line between those two, and the majority certainly never

successfully articulates one.3

3 The majority takes two whacks at it, neither of which persuades me. First,

it repeatedly says that, in this case, Hunstein is “completely missing” an

element of his common-law analogue. Maj. Op. at 15; see also, e.g., id. at 24

(“entirely missing”). But of course, in exactly the same way, the relevant

plaintiffs in TransUnion were “completely missing” the key element of falsity,

and yet the Supreme Court sanctioned their standing. And in any event, the

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19-14434 Newsom, J., Dissenting 15

* * *

In sum, then, the majority overreads TransUnion’s denial of

standing to a subset of the claimants there at the expense of defying

its mandate that courts shouldn’t require plaintiffs to “exact[ly]

duplicate” common-law causes of action. The majority thus

purports to follow TransUnion, but ends up spurning it. As I’ll

explain next, by insisting on a rigid, anti-TransUnion element-for-

element test, the majority departs from the heretofore unanimous

view among the circuits about how to implement the “close

majority’s assertion here that publicity is “completely missing” from

Hunstein’s case is just that—an assertion. Quoting the Restatement, the

majority says, for instance, that only a communication of private information

to “a large number of persons” will suffice for public-disclosure purposes;

dissemination to “a single person or even to a small group of persons” won’t

cut it. Id. at 25 (quoting Restatement (Second) of Torts § 652D cmt. a). True

enough, but—and I’ll have more to say about this shortly—from where is the

majority drawing its critical “single person or . . . small group” premise?

Certainly, as I’ll explain, not from Hunstein’s complaint. See infra at 29–35.

Second, and relatedly, the majority decrees—just announces, as if it

were a principle of the natural law—that disclosure of one’s information to a

“small group” is “not just a less extreme form” of more widespread

dissemination, but, rather, is “fundamentally different” and thus gives rise to

a “qualitatively different harm.” Maj. Op. at 25. Respectfully, all the majority

offers in support of that conclusion is its own say so—just words. It seems to

me self-evident that a disclosure to a small group (again, even if that’s all we’re

dealing with here) is precisely a “less extreme form” of a disclosure to a larger

group. The majority’s insistence on a neat, clean, and bright line between

“small” and “large”—and thus, it says, between “private” and “public”—blinks

reality.

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16 Newsom, J., Dissenting 19-14434

relationship” standard. And in doing so, the majority denies

Congress any breathing space in which to recognize judicially

enforceable rights that didn’t exist at common law. 4

4 Before moving on, a brief response to the concurring opinion, which

confidently states (and restates and restates) that “[t]he Supreme Court in

TransUnion expressly rejected” my standing “theory” when it observed in a

footnote that the plaintiffs there had abandoned an alternative argument.

Pryor Concurring Op. at 2; see TransUnion, 141 S. Ct. at 2210 n.6.

Respectfully, I think my concurring colleague is overplaying his hand. The

Supreme Court didn’t “expressly” (or “clearly”) do much of anything relevant

to this appeal in that footnote, Pryor Concurring Op. at 1, 2, 5, 14, let alone

anticipatorily reject my “theory.” Before saying anything of substance about

the “new argument” that the plaintiffs there were pressing “[f]or the first time”

before it, the TransUnion Court held that the argument was “forfeited.”

TransUnion, 141 S. Ct. at 2210 n.6. It then went on to observe—in what the

now-vacated panel opinion explained was dictum, see Hunstein, 17 F.4th at

1031—that the plaintiffs’ argument was “unavailing” for two reasons, both of

which caution against overreading the footnote. First, the Court tentatively

observed that “disclosures to printing vendors” at common law weren’t

“necessarily . . . actionable publications.” TransUnion, 141 S. Ct. at 2210 n.6

(emphasis added). Today’s concurrence conspicuously omits the limiting

adverb from its multiple restatements of the Supreme Court’s language.

Second, the TransUnion Court emphasized that the plaintiffs there, who had

the benefit of a full trial, had failed to adduce any “evidence” that the

information about which they were complaining “was actually read and not

merely processed.” Id. Here, of course, because Hunstein was thrown out at

the pleadings stage, he never had the opportunity to develop evidence to

support his allegations.

Needless to say, if I thought the Supreme Court’s diffident language—

which was buried in footnoted dictum about a forfeited issue, appeared in a

case in a materially different procedural posture, and addressed a different

common-law analogue—“expressly” rejected the theory of standing that I’ve

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19-14434 Newsom, J., Dissenting 17

B

On any reading, TransUnion makes two things absolutely

clear: On the one hand, Congress “may not simply enact an injury

into existence, using its lawmaking power to transform something

that is not remotely harmful into something that is.” 141 S. Ct. at

2205 (quotation omitted). Accordingly, the Court reiterated its

earlier rejection of “the proposition that ‘a plaintiff automatically

satisfies the injury-in-fact requirement whenever a statute grants a

person a statutory right and purports to authorize that person to

sue to vindicate that right.’” Id. (quoting Spokeo, 578 U.S. at 341). 5

On the other hand—as just explained—the Court reaffirmed that

Congress has some role in recognizing new judicially enforceable

rights; it is not limited to replicating and codifying preexisting

put forward here, I would happily stand down. But I just don’t think it did.

To the contrary, for reasons I’ve explained in text, TransUnion’s above-the-

line discussion, and holding, reaffirm my view that Hunstein’s allegations are

sufficient to confer Article III standing.

5 To be clear, I freely admit as much, see supra at 3–4, and the majority surely

understands that. For that reason, its parting shot—that I’m seeking to use

this dissent to plug my “different approach to standing doctrine,” Maj. Op. at

26 (citing Sierra v. City of Hallandale Beach, 996 F.3d 1110, 1115–40 (11th Cir.

2021) (Newsom, J., concurring))—rings hollow. I’ve been very candid about

the problems that I think plague current standing jurisprudence, see also

Laufer v. Arpan LLC, 29 F.4th 1268, 1283–97 (11th Cir. 2022) (Newsom, J.,

concurring), but for present purposes I’m content to take Spokeo and

TransUnion exactly as I find them. The problem for the majority, explained

in text, is that neither Spokeo nor TransUnion supports its wooden element-

for-element test.

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18 Newsom, J., Dissenting 19-14434

common-law causes of action. As the TransUnion Court said, a

statutory-harm plaintiff needn’t provide an “exact duplicate” of a

common-law claim—a “close” analogue is enough. Id. at 2204

(quoting Spokeo, 578 U.S. at 341).

The challenge, of course, is that discerning whether the

required “close relationship” exists between a modern statutory

claim and a traditional common-law cause of action isn’t always (or

even usually) obvious. It isn’t, to use the majority’s term,

“simpl[e].” See Sierra v. City of Hallandale Beach, 996 F.3d 1110,

1121 (11th Cir. 2021) (Newsom, J., concurring) (“Just how closely

analogous to a common-law tort must an alleged injury be in order

to be ‘concrete’?”). In neither Spokeo nor TransUnion did the

Supreme Court purport to answer all of the questions; rather, the

Court left it to the lower courts to operationalize the “close

relationship” standard.

And operationalize it they did. Steering the required middle

course between the two fixed points—again, (1) that Congress

can’t enact just any old injury into existence, and (2) that plaintiffs

suing under congressional enactments needn’t “exact[ly]

duplicate” an existing common-law claim—the circuits developed

what I’ll call a “kind-degree” framework: A plaintiff suing on a

statutory cause of action must show that his alleged injury is similar

in kind to the harm addressed by a common-law cause of action,

but not that it is identical in degree. This consensus approach

makes good sense. The kind-degree framework not only abides by

the Supreme Court’s dual directives, but also tethers modern

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19-14434 Newsom, J., Dissenting 19

plaintiffs to historical antecedents without hamstringing

Congress’s ability to innovate.

The now-vacated panel opinion detailed the evolution and

adoption of the kind-degree framework in the courts of appeals,

adopted that framework as its own, and then applied it to decide

Hunstein’s case. See Hunstein, 17 F.4th at 1024 (citing Robins v.

Spokeo, Inc., 867 F.3d 1108, 1115 (9th Cir. 2017); Gadelhak v.

AT&T Servs., Inc., 950 F.3d 458, 463 (7th Cir. 2020); Cranor v. 5

Star Nutrition, L.L.C., 998 F.3d 686, 690 (5th Cir. 2021); Demarais

v. Gurstel Chargo, P.A., 869 F.3d 685, 691 (8th Cir. 2017); In re

Horizon Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625,

639 (3d Cir. 2017); and Lupia v. Medicredit, Inc., 8 F.4th 1184, 1192

(10th Cir. 2021)). Wholly unsurprisingly, in their briefs to the en

banc court, both Preferred and Hunstein framed their arguments

by reference to the kind-degree framework, agreeing that it

supplies the proper inquiry. See En Banc Br. of Appellee at 18

(“[T]he intangible statutory harm must still be the same kind of

harm actionable at common law.” (emphasis in original)); id. at 42

(“[I]t is necessary to determine whether the statutory harm is the

same kind of harm actionable at common law.” (emphasis in

original)); id. at 43 (“That is a question of kind, not degree.”); En

Banc Br. of Appellant at 4 (“An important nuance in analyzing the

‘close relationship’ is whether a cause of action is similar in kind,

but not necessarily in degree.”).

Quite surprisingly, to me anyway, the majority just waves

away all of this—the circuit-court decisions adopting the kind-

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20 Newsom, J., Dissenting 19-14434

degree framework, the parties’ discussions of it, its application to

this case, all of it. The majority neither accepts nor rejects the kind-

degree framework—because it can’t bring itself to engage it. Given

the majority’s conspicuous avoidance, and its equally conspicuous

failure to offer any alternative methodology for deciding the knotty

“close enough” questions that inevitably arise in the wake of

Spokeo and TransUnion, it’s worth surveying the landscape once

again.

I begin at the beginning, 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 only that an intangible

harm be “closely similar in kind to others that have traditionally

served as the basis for [a] lawsuit.” Robins, 867 F.3d at 1115

(emphasis added). Tellingly, the Ninth Circuit held that even

though an FCRA claim differed in key respects from the common-

law torts of defamation and libel—both of which, for instance,

“required the disclosure of false information that would be harmful

to one’s reputation”—the plaintiff’s statutory cause of action bore

a sufficiently “close relationship” for Article III purposes. Id.

(emphasis omitted).

Now-Justice Barrett’s opinion for the Seventh Circuit in

Gadelhak—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

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19-14434 Newsom, J., Dissenting 21

Consumer Protection Act constituted an Article-III-qualifying

concrete injury, the court emphasized—as had Judge

O’Scannlain—that “when Spokeo instructs us to analogize to

harms recognized by the common law, we are meant to look for a

‘close relationship’ in kind, not degree.” 950 F.3d at 462 (emphasis

added). In particular, the Seventh Circuit held that the harm

resulting from the unwelcome text messages bore a sufficient

relationship to the tort of intrusion upon seclusion, even though

the court recognized that “[a] few unwanted automated text

messages may be too minor an annoyance to be actionable at

common law.” Id. at 463. The key point, the court emphasized,

was that “such texts nevertheless pose the same kind of harm that

common law courts recognize.” Id. 6

Other courts decided post-Spokeo standing cases in the same

basic manner. For instance, in an opinion authored by Judge

Wilkinson, the Fourth Circuit held that a class of plaintiffs who had

received two phone calls within a year in violation of the TCPA

had Article III standing. See Krakauer v. Dish Network, L.L.C., 925

F.3d 643, 652–53 (4th Cir. 2019). The court acknowledged that the

plaintiffs might not have alleged a harm that would “rise[] to a level

that would support a common law cause of action.” Id. at 653–54.

6 Significantly, the Seventh Circuit has reaffirmed the kind-degree framework

post-TransUnion. See, e.g., Persinger v. Southwest Credit Sys., L.P., 20 F.4th

1184, 1192 (7th Cir. 2021) (“Spokeo and [TransUnion v.] Ramirez make clear

our responsibility to look for a close relationship ‘in kind, not degree.’”

(quoting Gadelhak, 950 F.3d at 462)).

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22 Newsom, J., Dissenting 19-14434

Importantly, though, the court—in an analysis utterly

irreconcilable with today’s majority’s exacting approach—rejected

the defendants’ request to “import the elements of common law

torts, piece by piece,” and held instead that the plaintiffs had

“plainly satisfie[d] the demands of Article III” because they had

alleged the same “types of harms protected at common law.” Id.

at 653–54 (emphasis added).

Judge Oldham reached the same conclusion—by the same

route—in a TCPA-related decision for the Fifth Circuit. There, the

court held that a single unsolicited text message in violation of the

TCPA bore a sufficiently close relationship to the common-law tort

of public nuisance. See Cranor, 998 F.3d at 690. In doing so, the

court freely acknowledged that the statute didn’t duplicate the

common-law tort in every jot and tittle. Id. at 692. In particular,

the court held that although the harm alleged didn’t “interfere with

those who come in contact with [the nuisance] in the exercise of a

public right or . . . otherwise affect[] the interests of the community

at large”—as is required for public-nuisance claims, see

Restatement (Second) of Torts § 821B cmt. g—the plaintiff’s

allegations bore “enough” of a relationship to the common-law

tort to support Article III standing, see Cranor, 998 F.3d at 692. In

so holding, the Fifth Circuit emphasized that the concreteness

inquiry should be “focused on types of harms protected at common

law, not the precise point at which those harms become

actionable.” Id. at 693 (emphasis added) (quoting Krakauer, 925

F.3d at 654).

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19-14434 Newsom, J., Dissenting 23

In the same way, the Eighth Circuit held that the harm

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

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

sufficiently close relationship to common-law “unjustifiable-

litigation torts” like abuse of process, wrongful use of civil

proceedings, and malicious prosecution. See Demarais, 869 F.3d at

691. Importantly here, it did so notwithstanding the fact that an

attempt to collect a debt not owed lacks essential elements of

common-law unjustifiable-litigation claims—perhaps most

notably, that it doesn’t “set[] the machinery of the law in motion,”

involve the “use [of] legal process,” or require “making a charge

before a public official or body.” Restatement (Second) of Torts

§§ 653 (malicious prosecution), 674 (wrongful use of civil

proceedings), 682 (abuse of process); see also Demarais, 869 F.3d at

691.

Likewise, in In re Horizon Healthcare Services, the Third

Circuit concluded that violations of certain provisions of the FCRA

governing credit-card companies’ dissemination of personal

information bore a close relationship to invasion-of-privacy torts.

See 846 F.3d at 639–40. In doing so, the court acknowledged that

although neither the applicable provisions of the FCRA nor the

plaintiffs’ specific allegations involved the dissemination of

information that was damaging to one’s reputation or otherwise

offensive—which privacy torts ordinarily require—the harms

nonetheless satisfied Spokeo’s “close relationship” test. See id. at

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24 Newsom, J., Dissenting 19-14434

639 (noting that “[w]e are not suggesting that Horizon’s actions

would give rise to a cause of action under common law”).

Most recently—and in fact, since TransUnion was decided—

the Tenth Circuit held that the harm resulting from an unwelcome

phone call bore a close relationship to the tort of intrusion upon

seclusion. Lupia, 8 F.4th at 1191. The court there emphasized that

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

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

harm recognized at common law.” Id. at 1192 (first emphasis

added). In so holding, the Tenth Circuit distinguished TransUnion

on the ground that the defendants there hadn’t disclosed any

information regarding the larger subset of plaintiffs to anyone and,

accordingly, that the harm identified by those plaintiffs “differed in

kind” from the harm of defamation. Id. 7

7 It’s worth noting that this Court’s lone foray into the kind-degree waters—

while not perfectly free of ambiguity—is consistent with our sister circuits’

decisions. In Salcedo v. Hanna, 936 F.3d 1162 (11th Cir. 2019), which today’s

majority opinion curiously never even mentions, we held that receipt of a

single unwelcome text message didn’t bear a sufficiently close relationship to

any of a handful of common-law torts. Id. at 1171. To that extent, the Court

reached a bottom-line conclusion different from those reached by the Fifth

and Seventh Circuits in Cranor and Gadelhak, respectively. More important

for our purposes than Salcedo’s result, though—this isn’t a TCPA case, after

all, and the en banc court isn’t bound by our prior decisions, in any event—is

the panel’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, id. at 1171, and in another that a

“significant[]” difference in “degree” might disqualify an intangible-injury

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19-14434 Newsom, J., Dissenting 25

* * *

Perhaps the majority just rejects the kind-degree framework

that our sister circuits have embraced. Perhaps not. It’s impossible

to say from its opinion, which resolutely refuses to engage it. It

may be that the majority sidesteps the kind-degree framework

because it knows that it has to—at least if it intends to retain any

tether to Supreme Court precedent. It’s hard 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

plaintiff, 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 both invasion of privacy in general and intrusion

upon seclusion in particular, “an examination of those torts reveals significant

differences in the kind and degree of harm they contemplate providing redress

for.” Id. at 1172 (emphasis added). Perhaps most tellingly, the Salcedo opinion

concluded 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 assessed how concrete and real the alleged harm is and

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

fact.” Id. at 1173 (emphasis added) (citation omitted). Notably, in Gadelhak,

now-Justice Barrett interpreted Salcedo—just as I 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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26 Newsom, J., Dissenting 19-14434

same—the majority certainly hasn’t pointed to one. The majority’s

wooden element-for-element approach—which amounts to a

similar-in-both-kind-and-degree standard—thus can’t be reconciled

with Spokeo’s prescription of a “close” (but not identical)

relationship, 578 U.S. at 341, with TransUnion’s reminder that “we

do not require an exact duplicate” between the alleged injury and

a traditionally recognized harm, 141 S. Ct. at 2209, or, for that

matter, with our own one-time recognition that the fit between a

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

action need not be perfect,” Muransky, 979 F.3d at 926.

In any event, today’s majority effectively leaves this Court

on the short side of (by my count) a 7-1 circuit split. To be clear,

I’m not averse to breaking with our sister circuits when

necessary—our obligation is to the law, not to what other courts

have said about the law. See, e.g., Romero v. Secretary, U.S. Dep’t

of Homeland Sec., 20 F.4th 1374, 1382 n.5 (11th Cir. 2021)

(Newsom, J.) (expressly rejecting Fifth and D.C. Circuits’

interpretations of 8 U.S.C. § 1101(g)). But if we’re going to reject a

framework that so many of our colleagues have adopted as a means

of implementing the Spokeo/TransUnion “close relationship”

criterion—and, for that matter, the framework embraced and

utilized by the parties to this very case—we should do so openly

and unashamedly. We should acknowledge that framework,

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19-14434 Newsom, J., Dissenting 27

explain our reasons for repudiating it, and offer a meaningful

alternative. Today’s majority does none of those things.8

One final word about the majority’s implicit rejection of the

kind-degree analysis—and its explicit adoption of a rigid jot-for-jot,

element-for-element test: Not only does it defy Supreme Court

precedent, and not only does it spurn the post-Spokeo/TransUnion

consensus among the circuits, it also deprives Congress of any

authority to innovate. Under the majority’s de facto perfect-match

criterion, Congress has essentially no freedom to recognize new

judicially enforceable rights. Rather, it is relegated to the role of

scrivener, dutifully replicating and codifying preexisting common-

law causes of action. Should Congress enact a statute that targets

the same kind of harm that a common-law claim addressed, but

permit protected parties to deviate even one degree from a single

element of that common-law forebear, it will have overstepped its

constitutional authority. That, it seems to me, cannot possibly be

the law.

8Seemingly nodding to would-be cert-opposition authors, the majority insists

that I have “manufacture[d]” the circuit split that I describe. See Maj. Op. at

25. Tellingly, though, it does so without actually engaging any of our sister

circuits’ decisions, and instead merely asserts that they offer “no uniform test.”

Id. at 26. Needless to say, I disagree. As explained in text, those decisions offer

a coherent and principled framework—even if some (but not all) of them fail

to incant certain magic words, contra id. at 26 n.10—with which today’s

majority opinion is irreconcilable.

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28 Newsom, J., Dissenting 19-14434

C

On, finally, to deciding Hunstein’s case—or at least to how

I would decide Hunstein’s case. Under the sensible (and until

today, consensus) kind-degree approach to the

Spokeo/TransUnion “close relationship” standard, Hunstein has

standing here. The majority concludes otherwise not only by

forsaking the kind-degree framework in favor of what amounts to

a perfect-match test, but also in refusing to give Hunstein’s

complaint an appropriately charitable reading and, worse, just flat

disregarding its express allegations.

On the face of his complaint, Hunstein has alleged a harm

that is similar in kind—even if not in precise degree—to the

common-law tort of public disclosure of private facts. To repeat,

under that tort, “[o]ne who gives publicity to a matter concerning

the private life of another is subject to liability to the other for

invasion of his privacy, if the matter publicized is of a kind that

(a) would be highly offensive to a reasonable person, and (b) is not

of legitimate concern to the public.” Restatement (Second) of

Torts § 652D. As already explained, the majority agrees (or at least

doesn’t disagree) that Hunstein’s allegations satisfy the highly-

offensive and not-of-public-concern elements. The lone question,

therefore, is about “publicity.” And to repeat—which I do because

the majority’s treatment so often seems to obscure the point—the

question is not whether Hunstein’s allegations satisfy that element

sufficiently to state a common-law public-disclosure claim on the

merits. Rather, it is whether, at the pleadings stage, Hunstein’s

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19-14434 Newsom, J., Dissenting 29

allegations, and any reasonable inferences therefrom, come “close

enough” to that element to give him Article III standing to sue.

Again, Hunstein claims that a debt collector, Preferred,

“disclosed” what he calls “sensitive medical 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—to “the employees of an unauthorized third-party mail

house,” CompuMail. Pl.’s Compl. at 5. That means, based on the

allegations of the complaint—which we must accept as true for

purposes of this appeal—that some measure of disclosure in fact

occurred. See, e.g., Munson v. Lathrop, 71 N.W. 596, 597 (Wis.

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.”). To be sure, Preferred’s disclosure of

Hunstein’s private information to 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”; dissemination of personal information

to a third-party’s employees and more widespread dissemination

of that same personal information—and thus the harms that those

disclosures can cause—remain similar in “kind.” 9

9To be clear, there is no one-size-fits-all formula for determining just how

widespread the dissemination must be to constitute “publicity” 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, 1008 (N.M. App. 1999); see also,

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30 Newsom, J., Dissenting 19-14434

For its part, the majority never disputes any of this—

because, again, it never confronts it. What the majority does do,

unfortunately, is ignore the actual allegations of—and thus badly

misconstrue—Hunstein’s complaint. The majority repeatedly

asserts that Hunstein’s complaint alleges only a disclosure from

one inanimate company, Preferred, to its inanimate “vendor,”

CompuMail—and, accordingly, the majority says, even giving his

complaint what it calls the “most generous reading,” it can’t infer

that “even a single person at the mail vendor knew about [his]

debt,” Maj. Op. at 27. 10 Indeed, the majority goes so far as to say

that Hunstein’s complaint’s “allegations stop there.” Id. at 20.

e.g., Karch v. BayBank FSB, 794 A.2d 763, 774 (N.H. 2002) (“[D]etermining

whether a disclosure of a private matter has become one of public knowledge

does not, as a matter of law, depend on the number of people told. Whether

publicity is achieved by broadcasting something private to a few people or to

the masses is a conclusion best reached by the trier of fact.”). In any event, for

purposes of the “close enough” analysis, we needn’t get wrapped around the

axle about precisely how much disclosure would suffice to state a common-

law tort claim. It’s enough that Hunstein has alleged something similar.

10 See also Maj. Op. at 3 (“The plaintiff alleges that a creditor sent information

about his debt to a mail vendor . . . .”); id. at 4 (“[T]he collection agency sent

its vendor several pieces of information . . . .”); id. at 4-5. (“He alleged that

Preferred Collection had disclosed information about his debt to a third

party—the mail vendor . . . .”); id. at 5 (“The district court granted [the]

motion to dismiss . . . because the communication to the mail vendor . . . .”);

id. at 15 (“Hunstein alleges that . . . Preferred Collection sent information

about his debt to a mail vendor . . . .”); id. at 16 (“[Hunstein] says that by

sending the information about his debt to the mail vendor . . . .”); id. at 20

(“His complaint says that Preferred Collection placed his personal information

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19-14434 Newsom, J., Dissenting 31

That’s just not true. Hunstein’s complaint didn’t just allege

that Preferred disclosed his private information to some

disembodied Borg—“the vendor.” To the contrary, his complaint

alleged—in the very first substantive paragraph under the heading

“Preferred’s Violations of the FDCPA”—that “Preferred violated

15 U.S.C. § 1692c(b) when it disclosed information about Mr.

Hunstein’s purported ACH debt to the employees of an

unauthorized third-party mail house in connection with the

collection of the Debt.” Pl.’s Compl. at 5 (emphasis added and

omitted). 11

‘within the possession of an unauthorized third-party’ . . . .”); id. at 22 (“[T]he

complaint describes a disclosure that reached a single intermediary . . . .”); id.

(“Hunstein did not even allege that a single employee ever read or understood

the information about his debt.”); id. (“Under even the most generous reading

of his complaint, one company sent his information to another . . . .”); id. at

27 (“Preferred Collection’s disclosure to its vendor . . . .”); id. at 27 (“Nor is it

clear, or even likely, that even a single person at the mail vendor knew about

the debt . . . .”).

11 It’s no answer to say that

“the rest of the allegations” negate Hunstein’s lead

disclosure-to-employees contention. Contra Maj. Op. at 21. The majority’s

assertion that the follow-on allegations “show” that Preferred’s disclosure of

Hunstein’s private information was merely “an electronic transfer between

two companies”—i.e., Borg to Borg—doesn’t withstand scrutiny. See id. Nor

does the concurring opinion’s accusation that I am “ignor[ing] specific

allegations that clarify the general one [I] pluck[] out of context.” Pryor

Concurring Op. at 8. Warning: Long footnote ahead. This is a sideshow, but

it’s an important one.

First, there’s nothing in Hunstein’s complaint that even remotely

compels the conclusion that a “bare electronic conveyance of information” is

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32 Newsom, J., Dissenting 19-14434

all that occurred. Id. at 9; see also Maj. Op. at 21 (“electronic transfer”). The

word “populate”—on which the concurrence seems to predicate its bare-

electronic-conveyance contention, see Pryor Concurring Op. at 9—means

only “to import data into (a database)” or to “provide (a database) with

content.” Populate, Oxford English Dictionary (online ed.). Nothing about

that word requires (or even necessarily implies) automation, let alone a “bare

electronic conveyance of information.” Indeed, individuals—i.e., human

beings—manually “populate” forms with information in all sorts of everyday

circumstances: at a doctor’s office, in filling out a questionnaire, when buying

something online, etc. So I fail to understand why Hunstein’s complaint can’t

fairly be read to assert that the same CompuMail “employees” to whom

Preferred disclosed his private information received and read that information

before manually populating it into the necessary template.

Second, both the majority and the concurrence rely on Hunstein’s

lawyer’s statements at oral argument to prop up their position that

CompuMail’s employee couldn’t possibly have read or perceived the

information that Preferred transmitted to them. See Maj. Op. at 21; Pryor

Concurring Op. at 9. It wasn’t long ago, though, that one of my colleagues

(successfully) insisted that we “cannot rely on [an] inquisition” that takes place

“at oral argument.” United States v. Campbell, 26 F.4th 860, 889 (11th Cir.

2022) (en banc) (Pryor, C.J., concurring). If that is indeed the rule, it is

particularly applicable (in a way that it wasn’t in Campbell) to Hunstein’s

lawyer’s equivocal oral-argument responses to the judges’ questions. True,

when pressed, Hunstein’s lawyer conceded that his complaint was “inartfully

drafted” and that he hadn’t explicitly “alleged that anyone read or perceived”

the information. Oral Arg. at 7:30–45, 9:15. But both the majority and the

concurrence here fail to acknowledge that the lawyer also agreed that the

complaint’s allegations permit the “rational inference” that Hunstein’s

information “was read.” Id. at 5:25–6:05; see also id. at 8:05–50 (reiterating

that he was not “walking away from” the inference that the information was

“disclosed [to] or read by employees,” emphasizing that the complaint’s

disclosure-to-employees allegation was “very relevant,” and responding “no”

when asked whether he was “disclaiming it”).

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19-14434 Newsom, J., Dissenting 33

The majority’s refusal to meaningfully reckon with

Hunstein’s employees-based allegation is odd, given that the since-

vacated panel opinion addressed it repeatedly and in detail. See

Hunstein, 17 F.4th at 1020, 1021, 1027, 1028 & n. 7, 1029, 1031. Be

that as it may, the allegation is significant—not nearly as easily

shrugged off as the majority seems to think. As already noted,

Hunstein’s standing here turns on whether he has alleged a harm

that bears a “close” (though not identical) relationship to public

disclosure of private facts—and, in particular, to that tort’s

“publicity” element. Importantly here, that element is satisfied

where private information is communicated either “to the public

at large” or “to so many persons that the matter must be regarded

Finally, and most fundamentally, why do the majority and

concurrence insist on squinting so hard at Hunstein’s complaint, parsing it in

a way that denies him standing at the pleading stage? It’s possible, I suppose,

that if Hunstein’s case had proceeded, Preferred might have been able to

demonstrate that CompuMail is just a bot-filled warehouse and that, in fact,

no human “employees” ever “actually read” his information. TransUnion, 141

S. Ct. at 2210 n.6. If so, it might have been entitled to summary judgment or

a trial victory, just as TransUnion was. See id.; see also supra at 9–10. But of

course Hunstein’s case never made it that far, and that’s just not what he

alleged in his complaint—or, at the very least, it’s not the only reasonable

inference that can be drawn from his complaint. And given that we must

accept the facts alleged “as true and draw all reasonable inferences in

[Hunstein’s] favor,” their stingy reading is inappropriate at the motion-to-

dismiss stage. Royal Caribbean Cruises, 931 F.3d at 1043 (quotation omitted;

emphasis added).

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34 Newsom, J., Dissenting 19-14434

as substantially certain to become one of public knowledge.”

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

Again, at the pleading stage, we must not only accept the

facts alleged in Hunstein’s complaint as true but also draw all

reasonable inferences in his favor. Royal Caribbean Cruises, 931

F.3d at 1043. In light of that familiar standard, two important

points: First, given that Hunstein has alleged a disclosure to an as-

yet-undetermined number of CompuMail’s “employees,” it’s not

at all too “generous” to infer—contra the majority—that those

living, breathing, thinking individuals both “read [and] understood

the information about his debt.” Maj. Op. at 22. To be honest, I

don’t know what other inference we could draw from that

allegation at this juncture of the case. Second, the Restatement

expressly ties the publicity element, as one of two alternative ways

of demonstrating it, to how “many persons” received the plaintiff’s

private information. See Restatement (Second) of Torts § 652D

cmt. a. At this early phase of the litigation, we have no way of

knowing how many employees CompuMail even has—let alone

how many of them saw Hunstein’s information. What if that

number were 100? Or 500? Or 10,000? What if Preferred had

disclosed to 10,000 CompuMail employees not just Hunstein’s

son’s name and the fact of his hospitalization but also the

particulars of his medical diagnosis and prognosis? Still no

“publicity”? Come on.

To be clear, I’m not suggesting that publicity is purely a

“numbers game.” Maj. Op. at 20. But even the majority admits—

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19-14434 Newsom, J., Dissenting 35

as it must given the Restatement’s plain terms—that the “number”

of individuals to whom private information is disclosed at least

bears on the publicity question. In the majority’s words:

To be sure, dissemination of information to many

people is one way publicity can occur. But a

disclosure to many people may still be private, or at

least not “publicity.” Although the number of people

who receive information may be relevant when

examining the question of publicity, it does not itself

reveal whether a given disclosure qualifies as public.

Maj. Op. at 19 (emphasis added). As the majority’s tentative,

conditional language indicates, the breadth of any particular

disclosure is a matter of degree, not kind—and thus, at least in the

way that I (and many of my colleagues across the country) think

about it, not a basis for refusing a plaintiff standing to sue.12

12The majority counters with an example: A “trade secret . . . communicated

to thousands of new employees after a merger,” it says, would not support a

public-disclosure claim. Maj. Op. at 19. That may well be correct, but not for

the reason the majority seems to think.

As the Supreme Court noted in TransUnion, intra-company

disclosures typically aren’t “actionable publications,” at least for defamation

purposes. 141 S. Ct. at 2210 n.6 (citing Chalkley v. Atl. Coast Line R.R. Co.,

143 S.E. 631, 638–39 (Va. 1928)). That’s not, though, because they aren’t

“publications”; rather, it’s because (as the Supreme Court’s own cited case

demonstrates) they aren’t “actionable.” Id.; see also Restatement (Second) of

Torts § 577 cmt. e (“The fact that the defamatory matter is communicated to

an agent of the defamer does not prevent it from being a publication . . . .”).

And the actionable/non-actionable distinction turns on whether a particular

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36 Newsom, J., Dissenting 19-14434

communication is privileged. See Chalkley, 143 S.E. at 638–39. Irrespective

of whether a publication is privileged or not, and thus actionable or not, it

remains a publication. Restatement (Second) of Torts § 577 cmt. n (“One who

is privileged to communicate defamatory matter publishes the matter, even

though the publication is privileged.”).

Privilege seems to play a similar (though not quite identical) role in

the public-disclosure context. For reasons I’ve explained, absent any privilege

issue, a sufficiently widespread intra-company disclosure—i.e., “to so many

persons” that it “reaches, or is sure to reach, the public,” id. § 652D cmt. a—

might well satisfy the public-disclosure tort’s “publicity” element. To the

extent that the majority’s trade-secret hypothetical would fail to support a

public-disclosure claim, that’s because the secret’s recipients would be

privileged to receive it—and, in turn, would be bound by privilege not to

further disclose it. In that circumstance, we might rightly conclude that the

privileged information isn’t “sure to reach[] the public.” To be clear, though,

that conclusion turns on the nature of the information at issue—privileged vs.

non-privileged—not, as the majority seems to assume, on the nature of the

disclosure—intra- vs. extra-company. Separately, to the extent the majority’s

trade-secret hypo has resonance, it may be because, as would almost surely be

the case, a trade secret wouldn’t satisfy the public-disclosure tort’s

requirement that its dissemination be “highly offensive to a reasonable

person.” Cf., e.g., Wolfe v. Schaefer, 619 F.3d 782, 784 (7th Cir. 2010) (stating

that “unreasonable publicity given to another’s private life” is “illustrated by,”

for example, “the unauthorized publicizing of a person’s medical condition”

or his “personal finances”). That element, too, turns on the nature of the

information disclosed, not the nature of the disclosure itself.

Perhaps a counter-counterexample will demonstrate the limits of (and

flaws in) the majority’s logic: If Google were to communicate to all of its

100,000-plus employees a non-privileged piece of information—say, for

example, a user’s entire internet-search history—I think we can agree we’d

have an actionable public disclosure on our hands, and certainly something

“close enough” to confer Article III standing.

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19-14434 Newsom, J., Dissenting 37

* * *

Giving Hunstein the benefit of the doubt, as we must at this

stage of the proceedings, it’s not at all unreasonable to infer that

Preferred’s disclosure of Hunstein’s private information to an as-

yet-undetermined number of CompuMail’s “employees”—i.e.,

“persons” within the meaning of Restatement (Second) of Torts

§ 652D cmt. a—could well lead to that information becoming more

broadly “public.” In my view, that’s sufficiently “close” to public

disclosure’s “publicity” element—at least as a matter of “kind, [if]

not degree,” Gadelhak, 950 F.3d at 462—to give Hunstein Article

III standing to sue.

III

It’s easy to get lost in the weeds as we delve into the finer

points of common-law causes of action, compare allegations to

elements, etc. But remember, our job is not to determine whether

Hunstein has stated a viable common-law tort claim. (He hasn’t

even brought a common-law tort claim.) Rather, our task is to

compare the “harm” that Congress targeted in the FDCPA and that

Hunstein asserts with the “harm” that the common law sought to

address—and, in particular, to determine whether those harms

bear a sufficiently “close relationship.” TransUnion, 141 S. Ct. at

2209. Hunstein alleges that his privacy was compromised when his

intensely private information was disclosed to a group of strangers.

That’s the same sort of harm that common-law invasion-of-privacy

torts—and in particular, public disclosure of private facts—aim to

remedy. To be sure, just as the disclosure that Hunstein alleged

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38 Newsom, J., Dissenting 19-14434

might have been less extensive than that typically associated with

a common-law invasion-of-privacy claim, the harm that Hunstein

experienced may have been less severe. But those, again, are

differences in degree, not kind.

Today’s opinion empties the Spokeo/TransUnion “close

relationship” standard of all subtlety, adopts what is, in effect, the

very “exact duplicate” standard that the Supreme Court has

forbidden and that we had earlier forsworn, places this Court on

the wrong side of a 7-1 circuit split, and, in the doing, denies

Congress any meaningful ability to innovate, leaving it only to

replicate and codify existing common-law causes of action.

I respectfully dissent.