Jamie Huber v. Simons Agency Inc

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 22-2483

_____________

JAMIE HUBER, individually and on

behalf of all others similarly situated

v.

SIMON’S AGENCY, INC.,

Appellant

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-19-cv-01424)

District Judge: Honorable Anita B. Brody

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Argued April 25, 2023

Before: KRAUSE, BIBAS, and RENDELL, Circuit Judges.

(Opinion filed: October 12, 2023)

Yitzchak Zelman [ARGUED]

Ari H. Marcus

Marcus & Zelman

701 Cookman Avenue

Suite 300

Asbury Park, NJ 07712

Counsel for Appellee

David B. Shaver [ARGUED]

Surdyk Dowd & Turner

8163 Old Yankee Street

Suite C

Dayton, OH 45458

Counsel for Appellant

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OPINION OF THE COURT

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KRAUSE, Circuit Judge.

Since it entered the scene in 1989, the informational

injury doctrine of Article III standing has generated its share of

confusion, and with each new case, its contours have come into

sharper focus. In this case, Appellee Jamie Huber and the class

of consumers she seeks to represent brought suit under the Fair

Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692–

1692p, after receiving confusing collection letters from

Appellant Simon’s Agency, Inc. (SAI). The District Court

agreed the letters were “misleading and deceptive” in violation

of the Act, certified the class, and granted summary judgment

in its favor. App. 41. It also rejected SAI’s jurisdictional

challenge to the plaintiffs’ standing under Article III, holding

that while confusion from the letter, without more, would not

suffice, Huber had standing under the informational injury

doctrine because she suffered a concrete financial consequence

as a result of her confusion, and the other class members had

standing under “the same theory” because they “inevitably”

could be expected to suffer the same harm. App. 48.

We agree with the District Court that Huber has

standing, but not under the informational injury doctrine. After

the District Court rendered its ruling, we decided Kelly v.

RealPage Inc., which clarified that a plaintiff who seeks to

establish standing based on an “informational injury” must

identify “omitted information to which she has entitlement[.]”

47 F.4th 202, 213 (3d Cir. 2022). Huber did not do so and,

therefore, did not suffer an informational injury.

But she does have standing on a different basis—that

the financial harm she suffered in reliance on the letter bears a

“close relationship” to the harm associated with the tort of

fraudulent misrepresentation. Spokeo, Inc. v. Robins, 578 U.S.

330, 341 (2016). If the other proposed class members can also

make that showing, they, too, will have standing, but confusion

2

alone does not constitute concrete injury, and the present

record does not reflect whether any of the class members

suffered any consequences beyond confusion.

For these reasons, we will affirm the District Court’s

determination that SAI’s letter violated the FDCPA, 15 U.S.C.

§ 1692e, and that Huber herself has standing, but we will

remand for the District Court to consider the extent to which

unnamed class members may have standing to “recover

individual damages,” TransUnion LLC v. Ramirez, 141 S. Ct.

2190, 2208 (2021), and the implications of that determination

for class certification under Federal Rule of Civil Procedure

23(b)(3).

I. Factual and Procedural Background

A. Huber’s Dealings with SAI

In 2018, Huber visited doctors in the Crozer Health

Network (Crozer) on four separate occasions. As a result, she

incurred the following debts to Crozer: $178 on February 9,

$78 on February 22, $83.50 on March 27, and $178 on May

22. Crozer contracted with SAI—a debt collection agency that

specializes in medical billing—to collect outstanding bills

from Huber and other patients. Whenever Crozer placed a debt

with SAI, SAI sent a form collection letter to the debtor. That

letter set out an “Account Summary” that provided the debtor

with two figures: in one box, the specific debt SAI sought to

collect, entitled “Amount,” and in another box, a second figure,

entitled “Various Other Acc[oun]ts Total Balance.” App. 7.

By way of example, the fourth such letter Huber received

between May and September of 2018—one for each of her

debts to Crozer—appeared as follows:

3

Thus, the “Account Summary” informed Huber that she owed

an “Amount” of $178, while her “Various Other Accounts

Total Balance” was listed at $517.50. Id.

According to her deposition testimony, Huber was

confused after reading the letter as to how much she owed in

total: Was it $695.50 (the sum of the “Amount” and “Various

Other Accounts Total Balance”) or $517.50 (just the “Various

Other Accounts Total Balance”)? Uncertain which amount

was due, she paid neither. Instead, she sent the letter to a

financial advisor she had retained to help her “take care of [her]

financial situation.” App. 111.

B. The Proceedings Below

Huber filed this putative class action against SAI in

2019 alleging, among other things, that the fourth collection

letter constituted a “false, deceptive, or misleading” means of

collecting a debt in violation of 15 U.S.C. § 1692e. Huber also

alleged that SAI’s letter failed to disclose the “amount of the

debt” as required by 15 U.S.C. § 1692g(a)(1). But the District

Court remarked that the letter straightforwardly stated that the

“Amount” of Huber’s fourth debt was $178, so there was no

actionable failure to disclose. Accordingly, the Court granted

summary judgment in favor of SAI on Huber’s § 1692g(a)(1)

claim, and Huber does not challenge that ruling on appeal.

Following discovery, both parties moved for summary

judgment on Huber’s § 1692e claim, and Huber prevailed.

Applying our Court’s objective “least sophisticated debtor

standard,” App. 17, the District Court observed such a debtor

could reasonably read SAI’s collection letter in two ways: the

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recipient’s total debt could be either the sum of the “Amount”

and the “Various Other Accounts Total Balance,” or the latter

already representing that sum. Because the former reading is

inaccurate—the “Various Other Accounts Total Balance” in

fact represents the total debt—the District Court ruled that

SAI’s form letter was indeed deceptive and therefore violated

§ 1692e as a matter of law.

Claiming that hundreds of other debtors were also

subject to this violation, Huber moved to certify a class under

Federal Rule of Civil Procedure 23(b)(3). Her proposed class

consisted of “all consumers in Clifton Heights, PA (1) who

received a [form] Collection letter from the Defendant (2)

containing a reference to ‘Various Other Accounts[,’] (3) on an

obligation owed or allegedly owed to Crozer, (4) during the

time period of April 4, 2018 to May 30, 2018.” App. 28. The

District Court granted that motion, holding the proposed class

satisfied the numerosity, commonality, typicality, and

adequacy requirements of Rule 23(a), and the predominance

and superiority requirements of Rule 23(b)(3).

SAI, now facing class-wide liability, moved for

reconsideration on the ground that Huber and the unnamed

members of her class had not suffered a concrete injury for

purposes of Article III standing. The District Court disagreed.

Correctly observing that this Court “ha[d] not [yet] issued a

precedential opinion on injury-in-fact stemming from the

misleading communications of debt collectors,” App. 45, the

District Court thoughtfully sought to determine what

constitutes such an injury in the FDCPA context. It did so

under the auspices of the “informational injury doctrine.”

Because we had treated improper disclosures of private

information as concrete, if intangible, informational injuries in

prior FDCPA cases, the District Court inferred that the

dissemination of misleading information likewise should be

viewed as a species of informational harm—at least where that

that misleading information “influences a plaintiff’s credit or

management of their debt.” App. 46. For this intangible harm

to be concrete, it recognized, “confusion itself is not enough,”

App. 47; rather, the plaintiff must have engaged in

“consequential action or inaction following receipt of [the]

misleading or deceptive collection letter,” App. 47. Such

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action could “lead[] a plaintiff to pay extra money, affect[] a

plaintiff’s credit, or otherwise alter[] a plaintiff’s response to a

debt.” App. 46 (quoting Markakos v. Medicredit, Inc., 997

F.3d 778, 780 (7th Cir. 2021)).

On that basis, the District Court concluded that Huber

had standing because “[s]he was not merely confused or

anxious,” but also suffered two types of “financial

consequences” as a result of her confusion: (1) “seeking

assistance from a professional to figure out how to interpret the

letter and how to handle her debt”; and (2) being “unable to

pay down her debts or otherwise take appropriate action (other

than turning to a third party at her own additional cost) because

of the misinformation in SAI’s letter.” App. 47–48. As for

the other class members, the District Court extrapolated that

they all had standing under “the same theory of harm” because

they received the same confusing letter from SAI, and “being

provided with misleading or deceptive information about a

debt” would “inevitably” prevent each member’s “appropriate

action to manage their debt.” App. 48. The District Court

therefore denied SAI’s motion for reconsideration.

Ten days later, the parties stipulated to the statutory

damages Huber and the class would receive under the FDCPA

if the District Court’s rulings were upheld on appeal. Huber

would receive $1,000 in statutory damages; the unnamed class

members would collectively receive $5,000 in statutory

damages to be “distributed on a pro rata basis”; and Huber

would also receive a $5,000 service award “for her work in

representing the class over the past three years.” 1 Id. at 52–53.

1

The parties recognized that these damages awards

“represent[ed] the maximum amount of statutory damages

available” under the FDCPA. App. 52. That is because, “in

the case of a class action,” the FDCPA permits “each named

plaintiff” to recover “damages as the court may allow, but not

exceeding $1,000” and “such amount as the court may allow

for all other class members, without regard to a minimum

individual recovery, not to exceed the lesser of $500,000 or 1

per centum of the net worth of the debt collector.” 15 U.S.C.

§ 1692k(a)(2). Prevailing plaintiffs are also entitled to costs

and attorney’s fees, so long as they are “reasonable . . . as

determined by the court.” Id. § 1692k(a)(3).

6

The District Court entered the stipulation as a final appealable

order, and SAI timely appealed.

II. Jurisdiction and Standard of Review

The District Court had putative jurisdiction under 28

U.S.C. § 1331 and 15 U.S.C. § 1692k(d). We have jurisdiction

under 28 U.S.C. § 1291, which includes our “jurisdiction to

determine our own jurisdiction.” United States v. Kwasnik, 55

F.4th 212, 215 (3d Cir. 2022).

Our review of an order granting summary judgment “is

plenary, meaning we review anew the District Court’s

summary judgment decision[], applying the same standard it

must apply.” Ellis v. Westinghouse Elec. Co., LLC, 11 F.4th

221, 229 (3d Cir. 2021). Summary judgment is appropriate

when “there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a).

Our review of class certification orders, on the other

hand, is for abuse of discretion, “which occurs if the district

court’s decision rests upon a clearly erroneous finding of fact,

an errant conclusion of law or an improper application of law

to fact.” Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 590

(3d Cir. 2012) (quotation omitted). In assessing whether a

district court applied the correct legal standard during class

certification, we exercise de novo review. Id.

Finally, we review denials of motions for

reconsideration for abuse of discretion. United States ex rel.

Ascolese v. Shoemaker Constr. Co., 55 F.4th 188, 193 (3d Cir.

2022). When a district court’s “denial is based on legal issues,

we review that determination de novo. However, factual

findings are reviewed for clear error.” Gibson v. State Farm

Mut. Auto. Ins. Co., 994 F.3d 182, 186 (3d Cir. 2021) (citation

omitted).

III. Discussion

We begin as “we must begin every case: with the

question of jurisdiction.” Gayle v. Warden Monmouth Cnty.

Corr. Inst., 838 F.3d 297, 303 (3d Cir. 2016). Because a

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plaintiff’s standing implicates this Court’s Article III

jurisdiction, we will address that as a “threshold matter,” St.

Pierre v. Retrieval-Masters Creditors Bureau, Inc., 898 F.3d

351, 356 (3d Cir. 2018), before turning to the merits of Huber’s

FDCPA claim and SAI’s challenges to her class action.

A. Huber’s Article III Standing

While we agree with the District Court’s determination

that Huber herself has Article III standing, we reach that

conclusion on different grounds. Below, we address (1) the

requirements of standing and the informational injury doctrine;

(2) why that doctrine is inapplicable to Huber’s case; and (3)

why Huber nonetheless has standing under traditional standing

principles.

1. The “Informational Injury” Doctrine

To establish standing under Article III, a plaintiff must

show that she suffered: “(1) an injury-in-fact; (2) that is fairly

traceable to the defendant’s challenged conduct; and (3) that is

likely to be redressed by a favorable judicial decision.” Id.

(citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 590 (1992)).

The injury-in-fact requirement “preserves the vitality of the

adversarial process,” Lujan, 504 U.S. at 581 (Kennedy, J.,

concurring in part and concurring in the judgment), by

ensuring the plaintiff has “a ‘personal stake’ in the case,”

TransUnion, 141 S. Ct. at 2203 (quoting Raines v. Byrd, 521

U.S. 811, 819 (1997)). Accordingly, her injury must be

“concrete,” i.e., “real, and not abstract.” Spokeo, 578 U.S. at

340 (quotations omitted).

In response to the proliferation of information as both

an engine of economic activity and fixture of daily life, the

Supreme Court acknowledged in two seminal opinions that

even the nondisclosure of information can sometimes

constitute a “concrete” injury. See Pub. Citizen v. DOJ, 491

U.S. 440, 448–49 (1989) (reasoning that the DOJ’s denial of

information on judicial candidates under consideration by the

ABA prevented plaintiffs from “participat[ing] more

effectively in the judicial selection process”); FEC v. Akins,

524 U.S. 11, 13–14, 21 (1998) (concluding that the FEC’s

8

“political committee” determination effectively exempting the

AIPAC from disclosing its membership, contributions, and

expenditures imperiled plaintiffs’ ability to “evaluate

candidates for public office”).

In the decades that followed, we had occasion to apply

that informational injury doctrine, but we did not expound on

its requirements. Last year, however, in Kelly v. RealPage,

Inc., we specified the criteria a plaintiff must meet to establish

an informational injury: “she [must be] denied information to

which she [is] legally entitled [by statute], and . . . the denial

[must] cause[] some adverse consequences related to the

purpose of the statute.” 47 F.4th at 212. Recognizing that the

Supreme Court had developed the informational injury

doctrine to address the distinctly modern needs of the

Information Age, we deemed that doctrine an exception to the

usual concreteness requirement that a plaintiff identify a close

historical or common-law analogue to her cause of action. See

id. at 212 n.8 (declining “to import a historical analogue

requirement into the standing analysis for informational injury

claims”).

But exceptions must be limited, lest they swallow the

rule. And, as we explained in Kelly, there is no more

fundamental limitation on the informational injury doctrine

than the need for a plaintiff to show “the denial of information

. . . to which she has entitlement.” Id. at 212–13. The Supreme

Court made that clear in TransUnion LLC v. Ramirez, when a

credit reporting agency had mailed plaintiffs credit files

omitting certain required information but sent them that

information in separate mailings. 141 S. Ct. at 2213. Those

plaintiffs had not suffered an informational injury because, the

Court explained, they “did not allege that they failed to receive

any required information.” Id. at 2214. In contrast, the

plaintiffs in Kelly established standing where they had

requested a file disclosure from a credit reporting agency

pursuant to the Fair Credit Reporting Act, the file produced by

the agency omitted information the statute required, and the

plaintiffs suffered the kinds of consequences that the disclosure

requirements were designed to prevent. See 47 F.4th at 214–

15.

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In short, entitlement to the information allegedly

withheld is the sine qua non of the informational injury

doctrine.

2. Huber’s Injury Does Not Qualify As

“Informational Harm”

Kelly makes clear why the doctrine is inapplicable to

Huber: she has not alleged “the omission of information to

which [she] claim[s] entitlement[.]” 2 47 F.4th at 214. The very

reason the District Court granted summary judgment on

Huber’s § 1692g(a)(1) claim was that Huber had received all

the information to which she was entitled. That is,

§ 1692g(a)(1) required SAI to disclose “the amount of the

debt” for the specific service at issue in the letter, and the box

labeled “Amount” did so by telling Huber that she owed $178

for her fourth visit to Crozer. App. 6, 16. That conclusion not

only had obvious consequences for Huber’s § 1692g(a)(1)

claim, but also has consequences for her surviving § 1692e

claim because it forecloses the informational injury doctrine of

Article III standing. 3

Because she cannot identify a failure to disclose, Huber

urges us instead to extend the informational injury doctrine to

the failure to disclose clearly and effectively. In support of that

capacious theory, she cites decisions interpreting the scope of

debt collectors’ obligations under the FDCPA. But Huber’s

argument “confuses standing with the merits,” Frank v.

Autovest, LLC, 961 F.3d 1185, 1189 (D.C. Cir. 2020), as those

statutory decisions do not answer the constitutional question of

when a harm qualifies as an informational injury for purposes

of Article III. And constitutional decisions undermine Huber’s

2

We therefore need not address whether Huber demonstrated

“‘adverse effects’ that flow from [an] omission, and . . . the

requisite nexus to [a] ‘concrete interest’ Congress intended to

protect.” Kelly, 47 F.4th at 214.

3

As Huber does not contend that SAI’s letter provided

inaccurate information, whether a false disclosure amounts to

an omission for purposes of the informational injury doctrine

is not at issue here. Cf. Davidson v. Kimberly-Clark Corp., 889

F.3d 956, 971 (9th Cir. 2018).

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proposed expansion of the doctrine. In TransUnion, for

example, the Supreme Court admonished that an informational

injury consists in the “fail[ure] to receive [legally] required

information,” not merely “receiv[ing] it in the wrong format.”

141 S. Ct. at 2214; see also Trichell v. Midland Credit Mgmt.,

Inc., 964 F.3d 990, 1004 (11th Cir. 2020) (reasoning the

informational injury doctrine was inapt when plaintiffs were

not “denied desired information, but [instead] . . . received

unwanted communications that were misleading”).

Simply put, unclear disclosures do not equate to outright

omissions. Opening the courthouse doors whenever required

disclosures could arguably be clearer would vitiate the

concrete injury requirement in almost any case involving

information. Neither we nor the Supreme Court has suggested

that the informational injury doctrine stretches so far, and we

reject that proposition today. Because Huber has not alleged

that SAI omitted information to which she was entitled, she did

not suffer an informational injury.

3. Huber Has Standing Under Traditional

Standing Principles

The informational injury doctrine, however, is just one

path to standing, and an exceptional one at that. So having

ruled it out in Huber’s case, we must also consider the more

traditional path prescribed by the Supreme Court in

TransUnion: whether an alleged injury “has a ‘close

relationship’ to a harm ‘traditionally’ recognized as providing

a basis for a lawsuit in American courts.” 141 S. Ct. at 2204

(quoting Spokeo, 578 U.S. at 341).

In that case, the Court considered the standing of a

purported class of consumers claiming that TransUnion “failed

to ‘follow reasonable procedures to assure maximum possible

accuracy’ of the plaintiffs’ credit files” in its possession, in

violation of the Fair Credit Reporting Act, by including alerts

in the consumers’ files that erroneously labeled them as

potential terrorists on a government watchlist. Id. at 2208

(quoting 15 U.S.C. § 1681e(b)). Because “[e]very class

member must have Article III standing in order to recover

individual damages,” id., the Court considered separately those

class members whose credit files had been transmitted to third

11

parties and those whose credit files were maintained by

TransUnion but had not been disseminated. Id. at 2208–09.

Class members in the first category had standing, the

Court concluded, because they “suffered a harm with a ‘close

relationship’ to the harm associated with the tort of

defamation.” Id. Specifically, the Court explained that “the

harm from a misleading statement of this kind [i.e., actually

disseminated] bears a sufficiently close relationship to the

harm from a false and defamatory statement” to satisfy Article

III’s concrete injury requirement. Id. at 2209. In contrast,

those whose credit files contained the same misleading

statement but were not disseminated lacked standing because

the “retention of information lawfully obtained, without further

disclosure, traditionally has not provided the basis for a lawsuit

in American courts.” Id. (quotation omitted). Although

Congress intended “to assure maximum possible accuracy” of

both categories of credit files, 15 U.S.C. § 1681e(b), the mere

presence of “misleading information in the internal credit files”

did not qualify as a “concrete harm” sufficient to support

standing, TransUnion, 141 S. Ct. at 2210.

That distinction brought needed clarity to the proper

treatment of Article III standing. Before TransUnion, courts

sometimes conflated the concepts of “statutory” or

“prudential” standing with Article III standing by failing to

distinguish between “(i) a plaintiff’s statutory cause of action

to sue a defendant over the defendant’s violation of federal

law,” i.e., the merits of a plaintiff’s claim, with “(ii) a plaintiff’s

suffering concrete harm because of [a] defendant’s violation of

federal law,” i.e., a particular plaintiff’s standing to bring that

claim. Id. at 2205. TransUnion put that confusion to rest,

explaining that Congress may create an “injury in law,” but for

an individual plaintiff to proceed in federal court, Article III

requires that she show her own “injury in fact.” See id. at

2205–06. As the Court explained, allowing “unharmed

plaintiffs to sue defendants who violate federal law not only

would violate Article III but also would infringe on the

Executive Branch’s Article II authority” to decide “how to

prioritize and how aggressively to pursue legal actions against

defendants who violate the law.” Id. at 2207.

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But why not allow any plaintiff seeking to serve as

private attorney general to enforce the statutory right alongside

the Executive Branch? Because, the Court explained, in

contrast to federal agencies empowered to enforce statutory

rights, “[p]rivate plaintiffs are not accountable to the people

and are not charged with pursuing the public interest in

enforcing a defendant’s general compliance with regulatory

law.” Id. Thus, a private party may sue to enforce a statute

only when (1) Congress has authorized a private right of action,

and (2) the prospective plaintiff has established her own

individual standing under Article III, i.e., a “physical,

monetary, or cognizable intangible harm traditionally

recognized as providing a basis for a lawsuit in American

courts.” Id. at 2206.

When it comes to the FDCPA, Congress authorized

general enforcement by the Federal Trade Commission (FTC),

which may seek civil penalties for the dissemination of a

“false, deceptive, or misleading representation . . . in

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

§§ 1692e, 1692l(a); see also id. § 57b. And Congress also

provided a private right of action for individual plaintiffs. Id.

§ 1692k. But as TransUnion makes clear, “under Article III,

an injury in law is not an injury in fact. Only those plaintiffs

who have been concretely harmed by [the] defendant’s

statutory violation may sue that private defendant over that

violation in federal court.” 141 S. Ct. at 2205.

Helpfully, in clarifying the need for an injury-in-fact to

establish standing, the Court also clarified the nature of that

injury. To establish standing, a plaintiff must show that she

suffered an injury for which there exists a sufficiently “close

historical or common-law analogue.” Id. at 2204. While it is

not necessary to find “an exact duplicate in American history

and tradition,” id., or to show facts that would “give rise to a

cause of action under common law,” In re Horizon Healthcare

Servs. Inc. Data Breach Litig., 846 F.3d 625, 639 (3d Cir.

2017), the de jure injury must “‘protect essentially the same

interests’ as ‘traditional causes of action,’” Long v. Se. Pa.

Transp. Auth., 903 F.3d 312, 324 (3d Cir. 2018) (quoting

Susinno v. Work Out World Inc., 862 F.3d 346, 351 (3d Cir.

2017)).

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Here, Huber asserts that the receipt of deceptive

collection letters meets that test because “the common law has

long reflected an interest in avoiding the harms inherent to

receiving misleading information.” Ans. Br. 34–35 (quoting

Cunningham v. Credit Bureau of Lancaster Cnty., Inc., No. 17-

cv-5102, 2018 WL 6062351, at *6 (E.D. Pa. Nov. 20, 2018)).

We take this as an oblique reference to the tort of fraudulent

misrepresentation and agree it is an apt analogue. Like

fraudulent misrepresentation, a § 1692e violation involves

deception, and the statutory prohibition on the use of “any

false, deceptive, or misleading representation or means in

connection with the collection of any debt,” 15 U.S.C. § 1692e,

“protect[s] essentially the same interests” as that “traditional

cause[] of action,” Long, 903 F.3d at 324 (quotation omitted).

But to establish standing, TransUnion requires more

than a statute’s analogue in a common-law action; it requires

that “the harm [the prospective plaintiff suffered as a result of

the statutory violation] bears a sufficiently close relationship to

the harm from [that common-law action].” 141 S. Ct. at 2209

(emphasis added). It was not sufficient in TransUnion that

Congress sought to protect the “maximum possible accuracy”

of all consumer credit files maintained by credit companies;

class members who were labeled potential terrorists but whose

credit files had not been disseminated to third parties had not

suffered any “concrete injury” because “[t]he mere presence of

an inaccuracy in an internal credit file, if it is not disclosed to

a third party, causes no concrete harm,” id. at 2210. Those

whose files were disseminated, on the other hand, had standing

because “the harm [they suffered] from a misleading statement

of [that] kind bears a sufficiently close relationship to the harm

from a false and defamatory statement.” Id. at 2209. Likewise,

in the FDCPA context, it is not sufficient for a debtor’s

standing that Congress sought to protect all debtors from the

receipt of false or misleading information from debt collectors;

each plaintiff asserting a § 1692e violation must establish that

“the harm [she suffered] from a misleading statement of this

kind bears a sufficiently close relationship to the harm from

[fraudulent misrepresentation].” Id.

Notably, however, the “harm traditionally recognized as

providing a basis for [fraudulent misrepresentation] in

American courts,” id. at 2206, is not the mere receipt of a

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misleading statement, or even confusion, without any further

consequence. It is the “physical, monetary, or cognizable

intangible harm,” id., such as a reputational or emotional harm,

id. at 2208; Clemens v. ExecuPharm Inc., 48 F.4th 146, 155–

56 (3d Cir. 2022), that may follow from a plaintiff’s “reliance

upon the misrepresentation,” Restatement (Second) of Torts

§ 525 (Am. L. Inst. 1977) (emphasis added); see also John C.P.

Goldberg et al., The Place of Reliance in Fraud, 48 Ariz. L.

Rev. 1001, 1012 (2006) (“[U]nless and until a deception

occurs—unless and until there is reliance by the victim—the

tort of fraud has not been committed.”). The “mere risk” that

a plaintiff who receives a misleading letter from a debt

collector will suffer such a cognizable injury is “too

speculative to support Article III standing.” TransUnion, 141

S. Ct. at 2211–12.

We therefore agree with the District Court that

confusion, without more, is not a concrete injury. 4 Instead, to

analogize to the tort of fraudulent misrepresentation, a § 1692e

claimant must suffer some cognizable harm that flows from

that confusion. Namely, she must identify what the District

Court aptly described as a “consequential action or inaction

following receipt of a misleading or deceptive collection

letter[.]” App. 47. 5 Only then will her injury be of the “same

character” as the harm from fraudulent misrepresentation,

4

Our sister circuits are in agreement. See Perez v. McCreary,

Veselka, Bragg & Allen, P.C., 45 F.4th 816, 825 (5th Cir.

2022); Ward v. Nat’l Patient Acct. Servs. Sols., Inc., 9 F.4th

357, 363 (6th Cir. 2021); Brunett v. Convergent Outsourcing,

Inc., 982 F.3d 1067, 1068 (7th Cir. 2020); Bassett v. Credit

Bureau Servs., Inc., 60 F.4th 1132, 1137 (8th Cir. 2023);

Adams v. Skagit Bonded Collectors, LLC, 836 F. App’x 544,

547 (9th Cir. 2020); Shields v. Pro. Bureau of Collections of

Md., Inc., 55 F.4th 823, 830 (10th Cir. 2022); Trichell, 964

F.3d at 1004.

5

Cf. Shields, 55 F.4th at 830 (“Shields never pleaded reliance.

In other words, she did not allege the same kind of harm as

required by the tort of fraud.” (citation omitted)); Pierre v.

Midland Credit Mgmt., Inc., 29 F.4th 934, 939 (7th Cir. 2022)

(“[C]ritically, [the plaintiff] didn’t . . . act to her detriment in

response to anything in or omitted from the letter.”).

15

Thorne v. Pep Boys Manny Moe & Jack Inc., 980 F.3d 879,

890 (3d Cir. 2020) (quotation omitted), for only then will the

“interests” protected by her statutory cause of action align with

those of her common-law analogue, Long, 903 F.3d at 324

(quotation omitted).

Huber has established that detrimental action for the

reasons the District Court adeptly summarized. She did not

merely suffer from confusion, but from two resulting “financial

consequences”: one in consulting with her financial advisor,

which the District Court found was “at her own additional

cost,” and the other in her failure to “pay down her debts or

otherwise take appropriate action” beyond that consultation. 6

App. 47–48. Those detrimental consequences are sufficiently

similar to the kind of harm protected by the tort of fraudulent

misrepresentation to establish Huber’s standing. 7

6

Judge Bibas would not read the record and statements at oral

argument as enough to show detrimental reliance. He does not

read the record as showing that Huber paid an incremental cost

to have her financial advisor help her with this letter. Thus, he

would find no standing. But because both of his colleagues

find standing here, he joins the rest of the opinion of the Court.

Cf. Hanover 3201 Realty, LLC v. Vill. Supermarkets, Inc., 806

F.3d 162, 196 (3d Cir. 2015) (Ambro, J., dissenting in part and

concurring in part).

7

Given the District Court’s findings, even SAI’s counsel

conceded Huber had demonstrated detrimental reliance

sufficient for individual standing:

Q: . . . [T]here are other ways you might

characterize what happened—like . . . she sent

these documents to her credit advisor and she did

testify that she paid for his services.

A: I’m not sure if she did or not. I think that was

presumed or implied in the record that she had

hired Mr. Ramsey, that she had paid him

something at some point.

Q: Why isn’t that enough? Let’s put the

concrete financial loss to the side but, just for

16

* * *

In sum, because we had not yet clarified the

informational injury doctrine in Kelly, the District Court

mistakenly believed Huber had standing as a result of an

informational injury. Nevertheless, “[w]e may affirm on any

basis supported by the record, even if it departs from the

District Court’s rationale.” TD Bank N.A. v. Hill, 928 F.3d 259,

270 (3d Cir. 2019). And here, tracking the common-law

analogy to fraudulent misrepresentation, Huber has identified

both an allegedly deceptive communication and specific

harmful action and inaction she took as a result of that

communication. She therefore suffered a concrete injury for

Article III purposes, and having “assure[d] ourselves of

[Huber’s] standing,” DiNaples v. MRS BPO, LLC, 934 F.3d

275, 279 (3d Cir. 2019), we can turn to the merits of her claim.

B. Fair Debt Collection Practices Act

To prevail on an FDCPA claim, a plaintiff must

establish that: “(1) she is a consumer, (2) the defendant is a

debt collector, (3) the defendant’s challenged practice involves

an attempt to collect a ‘debt’ as the [FDCPA] defines it, and

(4) the defendant has violated a provision of the FDCPA in

attempting to collect the debt.” St. Pierre, 898 F.3d at 358

(quoting Douglass v. Convergent Outsourcing, 765 F.3d 299,

303 (3d Cir. 2014)). The first three elements are uncontested

here, so the only question for us is whether the District Court

correctly determined that SAI’s form letter transgresses the

FDCPA—specifically, the prohibition on the “use [of] any

false, deceptive, or misleading representation or means in

reliance, why aren’t those actions or omissions

sufficient to show reliance?

A: They might be, right? In Ms. Huber, we have

evidence of that . . .

Q: Just to be clear, do you concede for her

individual case that there is reliance?

A: Based on her testimony, she has said that she

relied to her detriment.

Oral Arg. at 21:04–22:29.

17

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

§ 1692e.

Like the District Court, we make that assessment

applying the “least sophisticated debtor” standard. Moyer v.

Patenaude & Felix, A.P.C., 991 F.3d 466, 470 (3d Cir. 2021)

(quoting Jensen v. Pressler & Pressler, 791 F.3d 413, 418 (3d

Cir. 2015)); see also Riccio v. Sentry Credit, Inc., 954 F.3d 582,

594 (3d Cir. 2020) (en banc). Under that test, we consider

“whether a debt collector’s statement in a communication to a

debtor would deceive or mislead the least sophisticated

debtor.” Jensen, 791 F.3d at 420. Because the standard is

objective, “the specific plaintiff need not prove that she was

actually confused or misled, only that the objective least

sophisticated debtor would be.” Id. at 419.

Although the least sophisticated debtor test “protects

naïve consumers, it also prevents liability for bizarre or

idiosyncratic interpretations of collection notices by preserving

a quotient of reasonableness and presuming a basic level of

understanding and willingness to read with care.” Wilson v.

Quadramed Corp., 225 F.3d 350, 354–55 (3d Cir. 2000)

(quotation omitted). Accordingly, we have held that a

collection letter is deceptive when “it can be reasonably read

to have two or more different meanings, one of which is

inaccurate.” Moyer, 991 F.3d at 470 (quoting Wilson, 225 F.3d

at 354).

Here, the District Court correctly observed that the

“Account Summary” in SAI’s form letter could be reasonably

interpreted in two ways because, without further explanation,

it sets out both an “Amount” and “Various Other Accounts

Total Balance.” App. 7, 17. Thus, a least sophisticated debtor

could read the latter as “Various Other Accounts Total

Balance,” meaning the sum total of her outstanding debt,

including the “Amount.” Alternatively, a least sophisticated

debtor could read it as “Various Other Accounts Total

Balance,” meaning she owes that figure in addition to the

“Amount.” So as SAI itself acknowledges, “[i]n a vacuum, the

Letter could reasonably be read to have the two meanings

ascribed by the District Court,” Opening Br. 30, and “one of

[them] is inaccurate,” Moyer, 991 F.3d at 470 (quotation

18

omitted). That is the very definition of a “deceptive”

communication, in violation of § 1692e.

SAI resists that conclusion by arguing that a debtor in

Huber’s situation would have deduced the meaning of

“Various Other Accounts Total Balance” by comparing the

fourth letter she received with the three prior collection letters

SAI sent her. See Opening Br. 31 (“Each correspondence was

about a separate account and the ‘Total Balance’ identified

increased each time by the amount owed for that specific

amount.”).

That argument highlights the open question whether the

least sophisticated debtor standard is “purely objective” or

instead “look[s] to what an objective debtor in [the plaintiff’s]

situation . . . would have thought or done,” Jensen, 791 F.3d at

422 n.4, but it is not a question to answer today. SAI sent those

letters to Huber on May 24, June 14, and July 12, 2018—

months before it mailed her its fourth collection letter on

September 6, 2018, App. 281–84—and in the intervals

between the collection letters, a least sophisticated debtor “may

have lost the [prior letters] and forgotten the amount of the debt

completely,” Fields v. Wilber L. Firm, P.C., 383 F.3d 562, 566

(7th Cir. 2004); see also Lukawski v. Client Servs., Inc., No.

3:12-cv-02082, 2013 WL 4647482, at *3 (M.D. Pa. Aug. 29,

2013) (“[A] least sophisticated consumer, gullible, trusting,

and naïve . . . cannot be expected to recall . . . a collection letter

received six weeks prior to a current communication.”). So

even if we look beyond the four corners of SAI’s letter, we

would not expect a least sophisticated debtor in Huber’s

position to recall the precise figures in the prior letters, much

less understand clearly what amount was due.

In short, whether we examine the fourth collection letter

from the perspective of a purely objective least sophisticated

debtor or a least sophisticated debtor in Huber’s position,

SAI’s letter is “deceptive” for purposes of § 1692e. We

therefore affirm the District Court’s grant of summary

judgment in Huber’s favor on that claim.

19

C. Class Considerations

Finally, SAI contends that even if Huber could bring an

individual claim under the FDCPA, the District Court erred in

permitting her suit to proceed on behalf of a class whose

members may or may not have individual standing. We

consider SAI’s challenges, first, to the justiciability of the class

action for the unnamed class members’ lack of standing and,

second, to Huber’s ability to satisfy the requirements of

Federal Rule of Civil Procedure 23.

1. Justiciability

According to SAI, Huber failed to establish that the

unnamed class members individually have standing because

she did not “present any evidence that [they] acted to their

detriment after receiving a letter from SAI in the same form as

the [challenged] Letter.” Opening Br. 14. And absent that

showing of individual standing, SAI asserts, Huber’s suit is

nonjusticiable under Article III. We consider both arguments

below.

i. The Standing of the Unnamed Class

Members

The District Court generalized from Huber’s own

injury, holding that all unnamed class members also had

standing because their receipt of SAI’s letter would

“inevitably” cause them similar financial harm to Huber. App.

48. Our dissenting colleague appears to go further and to

believe that no individualized determination of standing is

necessary for the class members (or Huber, for that matter)

because Congress, in creating a private right of action under

the FDCPA, ensured their injuries were “concrete[].” Dissent

at 11. We cannot agree with either analysis.

We part ways with the District Court because Huber did

not present evidence that any class member other than herself

suffered a “consequential action or inaction” as a result of

receiving SAI’s letter. App. 47. The District Court correctly

observed that Congress “may not simply enact an injury into

existence,” so regardless of whether the defendant violated the

law, the plaintiff must establish that she herself suffered a

20

concrete harm. App. 44 (quoting TransUnion, 141 S. Ct. at

2205). But neither theory of standing can float the entire class.

Just as Huber did not suffer an informational injury, neither did

these class members, so the informational injury doctrine

cannot support their standing. Kelly, 47 F.4th at 214. And

while the District Court found that Huber had experienced

specific “financial consequences” as a result of SAI’s letter,

App. 47—rendering her injury analogous to the harm

associated with fraudulent misrepresentation and thus concrete

for purposes of Article III—it could not make such findings as

to any other class member because Huber offered no such

evidence.

Some class members may not have been confused at all;

some may have been confused but nonetheless paid the correct

sum; and some may have cleared up their confusion with a

glance at their prior notices. It is also true that some, like

Huber, may have suffered sufficiently concrete harm, financial

or otherwise, to satisfy Article III. But standing cannot be

based on speculative injury. See Clapper v. Amnesty Int’l USA,

568 U.S. 398, 409 (2013); Thorne, 980 F.3d at 893 (explaining

that standing will not be found when the “alleged harm, even

if concrete, is hypothetical or conjectural”). So while the

District Court correctly recognized that mere “receipt of a

misleading or deceptive collection letter,” without some

“consequential action or inaction following [that] receipt,”

would be insufficient to establish informational harm, App. 47,

it was too quick to assume that financial harm was an

“inevitable consequence[]” for each and every class member,

App. 49.

We part ways with our dissenting colleague to the

extent she rejects the need for individualized inquiry and

asserts that, because SAI’s letter violated the FDCPA, any

and all recipients of the letter automatically have standing to

bring suit. But that position misapprehends the fundamental

distinction between “statutory standing” and Article III

standing. According to the dissent, a plaintiff has standing to

bring a claim based on a cause of action created by Congress

whenever Congress has “impose[d] a statutory prohibition

and grant[ed] a plaintiff a cause of action to sue over a

‘defendant’s violation of that statutory prohibition or

obligation,’” Dissent at 1–2 (quoting TransUnion, 141 S. Ct.

21

at 2204). Harm is “concrete[]” simply because “Congress

has provided a remedy.” Id. at 14. And a plaintiff’s standing

depends on “harm to the interest that [Congress sought] to be

protected, not actual harm to the plaintiff.” Id. at 11; see also

id. at 13 (stating that “what actually happened to Ms. Huber[]

. . . and what happened to every plaintiff in the class,” is

“irrelevant” because there is no requirement that we consider

“the actual impact or consequences of the violation on a

particular plaintiff”). From these premises, the dissent

concludes that here, because Congress wanted “debtors to be

protected from misleading information from collection

agencies,” the receipt of misleading information—in and of

itself—effects a concrete injury, without any need for

individualized inquiry. Id. at 15.

The Supreme Court has repudiated each of those

premises. In Spokeo, the Court expressly “rejected 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.’” TransUnion, 141 S. Ct. at 2205

(quoting Spokeo, 578 U.S. at 341). In TransUnion, it

explained that Congress’s creation of a statutory remedy does

not make harm “concrete”; what matters is whether the

particular plaintiff has suffered “any physical, monetary, or

cognizable intangible harm traditionally recognized” in

common law. Id. at 2206; see id. (concrete injury is required

“[e]ven if Congress affords . . . a cause of action (with

statutory damages available) to sue over [a] defendant’s legal

violation”). It also made clear that actual or imminent injury

to the plaintiff herself is the sine qua non of standing—

requiring that a plaintiff “seek[s] to remedy . . . harm to

herself” and not “merely . . . to ensure a defendant’s

‘compliance with regulatory law.’” Id. (quoting Spokeo, 578

U.S. at 345 (Thomas, J., concurring)).

The dissent is therefore mistaken that Congress can

create not just the right, but Article III standing to enforce it,

simply by legislating an “interest to be protected . . . in not

receiving false or misleading information,” Dissent at 12, or

that Congress’s desire to protect that interest—in the absence

of any detrimental consequence to the prospective plaintiff—

imbues that plaintiff with standing in “the same way as

22

common law sought to protect people from fraudulent

misrepresentations,” id. at 15. It is precisely because

Congress “may not . . . us[e] its lawmaking power to

transform something that is not remotely harmful into

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

plaintiff alleging intangible harm must show an actual or

imminent injury “with a close relationship to harms

traditionally recognized as providing a basis for lawsuits in

American courts,” 8 id. at 2204.

In TransUnion, the cognizable harm from wrongly

identifying the class members as potential terrorists was akin

to the harm from defamation. Id. at 2208–09. In Horizon, the

cognizable harm from the unauthorized release of the

plaintiffs’ sensitive information was akin to the harm from

invasion of privacy, Horizon, 846 F.3d at 639–40, as was the

disclosure of the plaintiff’s financial information in St. Pierre,

898 F.3d at 357–58, and the intrusion of an unauthorized

robocall in Susinno, 862 F.3d at 351–52 & n.3. 9 Here,

8

Although we made the broader statement in Horizon that

Congress “has the power to define injuries . . . that were

previously inadequate in law,” 846 F.3d at 638, the dissent

places more weight on that statement than it can bear, Dissent

at 3–4. First, we still assured ourselves in Horizon that the

injury at issue “ha[d] a close relationship” to “invasion of

privacy,” which “has traditionally been regarded as providing

a basis for a lawsuit in English or American courts.” Horizon,

846 F.3d at 639–40 (quoting Spokeo, 578 U.S. at 341). Second,

the Supreme Court later clarified in TransUnion that a

congressionally defined injury lacking a common-law

analogue would not suffice for Article III purposes.

TransUnion, 141 S. Ct. at 2206.

9

The dissent attaches significance to the fact that we

recognized a concrete injury in Horizon without requiring that

the plaintiffs’ stolen data be “actually used to the plaintiffs’

detriment.” Dissent at 3. But again, this appears to reflect

doctrinal confusion—this time between the requirement that an

injury be “concrete and particularized” and the requirement

that it be “actual or imminent.” Lujan, 504 U.S. at 560

(quotation omitted). The question of whether the data was

already used to plaintiffs’ detriment in Horizon went to

23

however, the only harm that we can say with certainty was

suffered by the unnamed class members is the receipt of

misleading information.

Even assuming arguendo that the receipt of that

information actually confused each and every class member,

confusion, without more, is not “harm traditionally

recognized as providing a basis for [fraudulent

misrepresentation] in American courts.” TransUnion, 141 S.

Ct. at 2206; see Island Insteel Sys., Inc. v. Waters, 296 F.3d

200, 212–13 (3d Cir. 2002); Restatement (Second) of Torts

§§ 525, 549. Nor has Huber identified any other tort that

would make the mere receipt of misleading information akin

to an “intangible harm traditionally recognized” in common

law. TransUnion, 141 S. Ct. at 2206. The need for

individualized inquiry to determine the standing of the

unnamed class members thus stems not from our requirement

that plaintiffs prove reliance as “an element of a cause of

action for fraudulent misrepresentation,” Dissent at 8, but

from Article III’s requirement of a concrete injury to establish

standing, see TransUnion, 141 S. Ct. at 2204.

ii. Consequences for Justiciability

That uncertainty, however, does not render the class

action itself non-justiciable. To the contrary, we have held that

“the ‘cases or controversies’ requirement is satisfied so long as

a class representative has standing, whether in the context of a

imminence, not concreteness, see 846 F.3d at 634, 639 n.19

(discussing plaintiffs’ alternative argument that, even if they

had not yet suffered a concrete injury, the data breach put them

at “imminent . . . risk of harm” for identify fraud), and later

cases have made the distinction even clearer; compare Reilly

v. Ceridian Corp., 664 F.3d 38, 46 (3d Cir. 2011) (declining to

find that plaintiffs had standing because, while a data breach

may have exposed their personal data to misuse by third

parties, “[s]uch misuse is only speculative—not imminent”),

with Clemens v. ExecuPharm Inc., 48 F.4th 146, 156–57 (3d

Cir. 2022) (finding injury “imminent” in the data breach

context when a “known,” “sophisticated ransomware group”

had already demanded ransom and published the named

plaintiff’s data on the “Dark Web”).

24

settlement or litigation class.” Neale v. Volvo Cars of N. Am.,

LLC, 794 F.3d 353, 362 (3d Cir. 2015); see also Mielo v.

Steak ’n Shake Operations, Inc., 897 F.3d 467, 478 (3d Cir.

2018) (same). And the Supreme Court has remarked that

“federal courts lack jurisdiction if no named plaintiff has

standing.” Frank v. Gaos, 139 S. Ct. 1041, 1046 (2019)

(emphasis added).

SAI urges us to depart from Neale and Mielo based on

TransUnion’s purported requirement that each unnamed class

member have standing for a class action to present a justiciable

case or controversy. But SAI misapprehends TransUnion,

which held only that individual standing was required for a

class member to obtain damages. As the Supreme Court

explained: “Every class member must have Article III standing

in order to recover individual damages. ‘Article III does not

give federal courts the power to order relief to any uninjured

plaintiff, class action or not.’” 141 S. Ct. at 2208 (emphasis

added) (quoting Tyson Foods, Inc. v. Bouaphakeo, 577 U.S.

442, 466 (2016) (Roberts, C.J., concurring)). The Court also

underscored the limited scope of its holding in a footnote,

clarifying: “We do not here address the distinct question

whether every class member must demonstrate standing before

a court certifies a class.” Id. at 2208 n.4 (citing Cordoba v.

DIRECTV, LLC, 942 F.3d 1259, 1277 (11th Cir. 2019)).

TransUnion suggests that the need for unnamed class

members to demonstrate Article III standing depends on the

stage of litigation. At the remedial phase, each class member

must establish standing to recover individual damages. See id.

at 2208. By contrast, at certification, the standing of individual

class members may inform whether a proposed class satisfies

the requirements of Federal Rule of Civil Procedure 23, see

infra; see also Neale, 794 F.3d at 368, but it is not necessary

for each member to prove his or her standing for the class

action to be justiciable, TransUnion, 141 S. Ct. at 2208 n.4.

We therefore abide by Neale’s precept that “so long as

a named class representative has standing, a class action

presents a valid ‘case or controversy’ under Article III.” 794

F.3d at 369. In doing so, we respect stare decisis by

“assum[ing] that the law is stable unless there is clear precedent

to the contrary. And that means that we do not assume that the

25

Supreme Court has altered the law unless it says so.” Horizon,

846 F.3d at 638. Our cases since TransUnion have similarly

hewed to Neale and Mielo, albeit without explicitly grappling

with the Supreme Court’s remarks on standing in class actions.

See Boley v. Universal Health Servs., Inc., 36 F.4th 124, 133

(3d Cir. 2022); Duncan v. Governor of V.I., 48 F.4th 195, 203

(3d Cir. 2022); Clemens, 48 F.4th at 153 n.4.

Because Huber has Article III standing, her proposed

class action presents a justiciable case or controversy even

though some unnamed class members may lack standing.

2. Certification

On the other hand, the possibility that some unnamed

class members lack standing may prevent certification under

Federal Rule of Civil Procedure 23. While TransUnion left

open “whether every class member must demonstrate

standing before a court certifies a class,” 141 S. Ct. at 2208 n.4

(citing Cordoba, 942 F.3d at 1277), our precedent supplies an

answer to that query: We do not “requir[e] Article III standing

of absent class members” prior to certification, but the

potential inclusion of some members without standing in a

class can result in “legitimate Rule 23 challenges.” Neale, 794

F.3d at 367–68.

SAI raises three certification challenges here,

contending Huber’s failure to establish unnamed class

members’ standing means her proposed class cannot satisfy the

commonality, typicality, and predominance requirements of

Federal Rule of Civil Procedure 23. We address each objection

in turn.

The commonality prerequisite to certification derives

from Federal Rule of Civil Procedure 23(a)(2)’s insistence that

there be “questions of law or fact common to the class.” Fed.

R. Civ. P. 23(a)(2). According to SAI, Huber’s class does not

satisfy commonality because Huber has not shown that “she

and the class members suffered the same injury.” Reply Br. 19

(citing Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349–50

(2011)). Here, SAI conflates the common injury the Supreme

Court demanded in Dukes for purposes of Federal Rule of Civil

Procedure 23(a)(2) with the injury-in-fact component of

26

standing. As Dukes explained, class members suffer a

common injury for Rule 23(a)(2) when their claims “depend

upon a common contention . . . capable of classwide

resolution.” 564 U.S. at 350. Huber’s suit raises a common

contention as to every class member—namely, that the form

collection letter they all received violates 15 U.S.C. § 1692e.

Cf. Dukes, 564 U.S. at 350 (observing a class would satisfy

commonality by asserting, for example, “discriminatory bias

on the part of the same supervisor”). The class thus asserts a

“common contention” and so shares common questions of law

or fact for Rule 23(a)(2) purposes. Id.

Next, SAI suggests the class founders on the

requirement that Huber’s “claims or defenses . . . [be] typical

of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3).

Huber’s claim is atypical, according to SAI, because Huber has

not submitted evidence of the specific detrimental

consequences unnamed class members experienced after

receiving the form collection letter. Yet the typicality

requirement merely serves to ensure that class representatives

do not have “unique interests that might motivate them to

litigate against or settle with the defendants in a way that

prejudices the absentees,” Duncan, 48 F.4th at 207 (quotation

omitted), and here the merits of Huber’s FDCPA claim are

identical to those of the unnamed class members’, 10 see Boley,

36 F.4th at 134 (“[A] violative practice can support a class

action embracing a variety of injuries so long as those injuries

can all be linked to the practice.”). As a result, Huber’s

interests are “sufficiently aligned with those of the class” to

satisfy typicality. Id.

In a last challenge to certification, SAI contends that the

individualized questions regarding unnamed class members’

standing will overwhelm common questions, such that Huber

cannot meet the predominance requirement of Federal Rule of

Civil Procedure 23(b)(3) (stating “questions of law or fact

10

Nor is she “subject to a defense that is both inapplicable to

many members of the class and likely to become a major focus

of the litigation.” Duncan, 48 F.4th at 207 (quoting In re

Schering Plough Corp. ERISA Litig., 589 F.3d 585, 599 (3d

Cir. 2009)).

27

common to class members [must] predominate over any

questions affecting only individual members”).

The predominance inquiry “asks whether the common,

aggregation-enabling, issues in the case are more prevalent or

important than the non-common, aggregation-defeating,

individual issues.” Ferreras v. Am. Airlines, Inc., 946 F.3d

178, 185 (3d Cir. 2019) (quoting Tyson, 577 U.S. at 453). To

answer that question, “court[s] must look first to the elements

of the plaintiffs’ underlying claims . . . through the prism of

Rule 23” to assess whether the class members can prove their

claims with “evidence that is common to the class rather than

individual to its members.” Reinig v. RBS Citizens, N.A., 912

F.3d 115, 127–28 (3d Cir. 2018) (quotations omitted). But “the

presence of individual questions does not per se rule out a

finding of predominance.” In re Prudential Ins. Co. Am. Sales

Prac. Litig. Agent Actions, 148 F.3d 283, 315 (3d Cir. 1998).

Rather, as the Supreme Court has counseled:

When “one or more of the central issues in the

action are common to the class and can be said

to predominate, the action may be considered

proper under Rule 23(b)(3) even though other

important matters will have to be tried

separately, such as damages or some affirmative

defenses peculiar to some individual class

members.”

Tyson, 577 U.S. at 453 (quoting 7AA Charles A. Wright et al.,

Federal Practice and Procedure § 1778 (3d ed. 2005)).

No doubt, predominance concerns can arise when

unnamed class members must submit individualized evidence

to satisfy standing and recover damages. We have previously

recognized as much, see Neale, 794 F.3d at 368 (explaining

that differences between injuries suffered by class members

can “affect . . . predominance analyses”), as did the Supreme

Court in tacitly endorsing the Eleventh Circuit’s decision in

Cordoba, see TransUnion, 141 S. Ct. at 2208 n.4 (citing

Cordoba, 942 F.3d at 1277). Although the named plaintiff in

Cordoba had Article III standing, 942 F.3d at 1271, the

evidence in the record was inconclusive as to the proportion of

unnamed class members who could make a similar showing,

28

id. at 1275. To recover damages, the Eleventh Circuit

explained, unnamed class members would have to submit

individualized evidence of their standing. Id. at 1274.

Depending on the number of class members able to satisfy that

burden and the difficulty of identifying those class members,

“individualized determinations might overwhelm issues

common the class,” id. at 1275, so the district court needed “to

address whether common issues predominate under Rule

23(b)(3) when this [standing] issue is baked into the analysis,”

id. at 1277. Accordingly, the Eleventh Circuit vacated the class

certification order and remanded.

Like the Eleventh Circuit in Cordoba, we conclude that

remand is necessary here owing to the lack of evidence in the

record indicating how many members of Huber’s class are

likely to have standing and how burdensome that showing will

be for both the District Court and the parties. Because the

District Court decided that Huber and the unnamed members

of her class suffered informational injuries, the Court had no

occasion to consider how individualized evidence of unnamed

class members’ standing would affect the balance of common

versus individual issues for purposes of predominance, or what

proportion of the class could be expected to establish standing.

Thus, the District Court must assess the implications of those

individualized showings for the predominance requirement of

Federal Rule of Civil Procedure 23(b)(3). 11 See Neale, 794

F.3d at 368.

On remand, Huber should submit evidence enabling the

District Court to estimate “how many class members (or what

proportion of them)” have standing. 12 Cordoba, 942 F.3d at

11

Although SAI does not contest Huber’s ability to satisfy

numerosity under Federal Rule of Civil Procedure 23(a)(1), a

plaintiff cannot satisfy that requirement by “resorting to mere

speculation.” Mielo, 897 F.3d at 484. Thus, on remand, the

District Court should also consider the implications of

unnamed class members’ potential lack of standing for the

numerosity requirement.

12

At the certification stage, Huber need not prove the exact

number of class members who have standing. Instead, as often

is the case in assessments of the Rule 23 criteria, Huber can

29

1275. Additionally, the Court should evaluate the feasibility

of receiving individualized evidence on class members’

standing. If the Court surmises that few class members will be

able to show they undertook the kind of detrimental action or

inaction required for standing or that “it will be extraordinarily

difficult to identify those who did,” id. at 1275, then Huber’s

proposed class is not “sufficiently cohesive to warrant

adjudication by representation,” Reinig, 912 F.3d at 127

(quoting In re Hydrogen Peroxide Antitrust Litig., 552 F.3d

305, 311 (3d Cir. 2008)). By contrast, if many class members

appear likely to satisfy standing “or if there is a plausible

straightforward method to sort them out at the back end of the

case, then the class might appropriately proceed as it is

currently defined.” Cordoba, 942 F.3d at 1275.

We have no doubt that our esteemed colleague on the

District Court—given her deep familiarity with this case and

vast experience on the bench—is well-equipped to make those

determinations. We will therefore vacate the class certification

order and remand for the District Court to decide whether

Huber’s proposed class satisfies Federal Rule of Civil

Procedure 23(b)(3) notwithstanding the individualized

evidence class members must submit to demonstrate standing

and recover damages. In addition, because the District Court’s

damages award was predicated on its class certification

decision, see App. 51–52, we will also vacate that order to

enable the District Court to reassess damages, if needed to

avoid any anomalous windfall. The District Court can then

exercise its wide discretion, depending on its determinations as

to certification and the number of class members expected to

have standing and to recover damages, to ensure appropriate

amounts of both statutory damages and attorney’s fees. See 15

U.S.C. § 1692k(a)(2)–(3).

resort to any number of mechanisms to offer a sufficiently

reliable estimate of the proportion of class members who will

be able to demonstrate standing. Cf. Reinig, 912 F.3d at 128

(recognizing “representative evidence [can] satisfy the

commonality/predominance requirements of Rule 23”);

Marcus, 687 F.3d at 596 (explaining a “plaintiff [need not]

offer direct evidence of the exact number and identities of the

class members”).

30

IV. Conclusion

For the foregoing reasons, we will affirm the District

Court’s rulings that Huber has Article III standing and that

SAI’s form collection letter violated 15 U.S.C. § 1692e.

However, we will vacate the District Court’s orders certifying

Huber’s proposed class and awarding damages and will

remand for proceedings consistent with this opinion.

31

Jamie Huber v. Simon’s Agency, No. 22-2483

RENDELL, Circuit Judge, concurring in part and dissenting

in part

Jamie Huber received misleading notices from a

collection agency that, under our case law, were deceptive as a

matter of law. The same goes for members of the class

certified by the District Court. I agree with the Majority that

Huber has standing. But unlike the Majority, I adopt the

analysis that comports with our precedent and would affirm

outright without any need for a remand to examine the

propriety of the class certification. So, I part ways with the

Majority and respectfully dissent as to the proper analysis and

ultimate disposition.

The Majority’s reasoning disregards both controlling

Supreme Court precedent in Spokeo, Inc. v. Robins, 578 U.S.

330 (2016), and TransUnion LLC v. Ramirez, 141 S. Ct. 2190

(2021), and our precedent, namely our opinions in Susinno v.

Work Out World Inc., 862 F.3d 346 (3d Cir. 2017) (Hardiman,

J.), and In re Horizon Healthcare Servs. Inc. Data Breach

Litig., 846 F.3d 625 (3d Cir. 2017) (Jordan, J.). The Majority

purports to follow Spokeo and TransUnion, but it fails to

emphasize that the issue before us involves the unique question

of concreteness for purposes of determining the standing of a

plaintiff bringing a claim based on a cause of action created by

Congress. Moreover, the Majority conflates standing in such

cases with the injury required in other Article III standing

cases, focusing on the extent of harm or injury. Spokeo and

TransUnion do not ever refer to an inquiry along these lines.

This is a distinct type of standing, as we afford “due respect”

to Congress’s decision to impose a statutory prohibition and

grant a plaintiff a cause of action to sue over a “defendant’s

1

violation of that statutory prohibition or obligation.”

TransUnion, 141 S. Ct. at 2204 (citing Spokeo, 578 U.S. at

341). This “respect” means that we allow Congress to provide

a remedy to plaintiffs in certain situations where they might not

have satisfied the traditional notions of harm required at

common law. Congress “has the power to define injuries that

were previously inadequate in law.” Horizon, 846 F.3d at 638

(internal quotation marks omitted) (quoting Spokeo, 578 U.S.

at 341). Otherwise, why create a special test for “concreteness”

in these cases?

The analysis in this situation is quite specific and

straightforward. We ask whether the claim vindicates a right

traditionally recognized at common law (i.e., is there a

common law analog?) taking into account Congress’s view

regarding the need to vindicate that right. 1 We must also make

sure that the situation actually implicates the interest to be

protected so that a plaintiff is not simply complaining of a

“bare procedural violation” of a statute unconnected to any

impact on her. Spokeo, 578 U.S. at 342. Checking these boxes

leads to a plaintiff’s satisfying the “concreteness” test for

standing to pursue a congressionally created claim based on an

alleged intangible harm. “Case closed”—or, actually,

1

This is an abbreviated version of what the Supreme Court

outlined in both Spokeo and TransUnion. See Spokeo, 578

U.S. at 340–41; TransUnion, 141 S. Ct. at 2204–05. In

Horizon, Judge Jordan provided a thorough explanation of

Spokeo’s reasoning, see 846 F.3d at 636–39, which Judge

Hardiman relied upon in Susinno, see 862 F.3d at 350–51. A

few years later, TransUnion expanded further, but it did so

consistent with Spokeo.

2

opened—because Huber’s claim meets this test, as I discuss

more fully below.

We performed this analysis correctly in Horizon and in

Susinno.

In Horizon, plaintiffs’ laptops containing highly

sensitive and private personal information were stolen. 846

F.3d at 630. The complaint alleged that their insurance

company, Horizon, failed to maintain the confidentiality of the

plaintiffs’ information, giving rise to a cause of action under

the Fair Credit Reporting Act (FCRA). Id. at 629. It did not

allege that the false information was actually used to the

plaintiffs’ detriment. Id. The district court had dismissed the

case, concluding that “standing requires some form of

additional ‘specific harm’ beyond ‘mere violations of statutory

and common law rights.’” Id. at 634. We reversed based on

our own precedent in In re Google Inc. Cookie Placement

Consumer Priv. Litig., 806 F.3d 125 (3d Cir. 2015), and In re

Nickelodeon Consumer Priv. Litig., 827 F.3d 262 (3d Cir.

2016), citing the principle that “Congress has long provided

plaintiffs with the right to seek redress for unauthorized

disclosures of information that, in Congress’s judgment, ought

to remain private.” Horizon, 846 F.3d at 636 (quotation marks

omitted) (quoting Google, 806 F.3d at 274). We noted that

Spokeo did not compel a different outcome and commented on

Spokeo’s recognition of Congress’s role:

We reaffirm that conclusion today.

Spokeo itself does not state that it

is redefining the injury-in-fact

requirement. Instead, it

reemphasizes that Congress “has

the power to define injuries that

were previously inadequate in

3

law.” In the absence of any

indication to the contrary, we

understand that the Spokeo Court

meant to reiterate traditional

notions of standing, rather than

erect any new barriers that might

prevent Congress from identifying

new causes of action though they

may be based on intangible harms.

Id. at 638 (internal citations omitted) (quoting Spokeo, 578

U.S. at 341). And in Susinno, we summarized Horizon’s rule

as follows:

When one sues under a statute

alleging “the very injury [the

statute] is intended to prevent,”

and the injury “has a close

relationship to a harm . . .

traditionally . . . providing a basis

for a lawsuit in English or

American courts,” a concrete

injury has been pleaded.

862 F.3d at 351 (quoting Horizon, 846 F.3d at 639–40)

(alteration in original). We then proceeded to conclude that the

plaintiff in Susinno had pled a concrete, albeit intangible,

injury by complaining of one prerecorded call and voice

message to her cellular telephone that violated the Telephone

Consumer Protection Act (TCPA):

Where a plaintiff’s intangible

injury has been made legally

cognizable through the democratic

process, and the injury closely

4

relates to a cause of action

traditionally recognized in English

and American courts, standing to

sue exists.

Id. at 352.

After we decided Horizon and Susinno, the Supreme

Court revisited, and reiterated, the appropriate test in

TransUnion. There, the plaintiffs complained of “misleading”

alerts in their credit reports that indicated each of the plaintiffs

was a “potential match to names on the OFAC list [of

suspected terrorists].” TransUnion, 141 S. Ct. at 2202. This

was based on the credit reporting agencies’ matching first and

last names against the list. The Supreme Court once again laid

out the test for “concreteness” of an intangible harm,

explaining that the harm experienced by “the 1,853 class

members whose reports [containing potentially misleading

information] were disseminated to third parties suffered a

concrete injury in fact under Article III” because “the harm

from a misleading statement . . . bears a sufficiently close

relationship to the harm from a false and defamatory

statement.” Id. at 2209 (emphasis added). End of analysis. As

the Majority points out, the other class of plaintiffs in

TransUnion, whose reports were not disseminated, did not

suffer a concrete injury because there was “no historical or

common law analog where the mere existence of inaccurate

information, absent dissemination, amounts to concrete

injury.” TransUnion, 141 S. Ct. at 2209 (quoting Owner-

Operator Indep. Drivers, Inc. v. U.S. Dep’t of Transp., 879

F.3d 339, 344–45 (D.C. Cir. 2018)) (quotation marks omitted).

The Majority states that the distinction between the plaintiffs

whose misleading reports were sent and plaintiffs whose

misleading reports were not “brought needed clarity to the

5

proper treatment of Article III standing.” Maj. Op., Section

III.A.3, supra. It then expands on the need for a “personal

stake.” I agree. Here, if the misleading notice had never been

sent to Huber, she would have no claim. Or, if, as the

Majority’s quotation from TransUnion notes, Huber had no

personal stake because she was only pursuing a mere

procedural violation with no connection to her she would lack

standing. 2 But no one has contended that Huber lacks a

personal stake or is pursuing a mere procedural violation. 3

2

Indeed, to make this point, the Supreme Court considered a

hypothetical Hawaii resident complaining of a factory’s

environmental pollution of a Maine resident’s land—in such a

situation, the Hawaii resident would have no standing to sue

the factory. TransUnion, 141 S. Ct. at 2205–06.

3

The Majority returns later in its opinion to TransUnion’s

distinction between the “sent” report and “non-sent” report

plaintiffs as if it supports its argument regarding the need for

harmful consequences, but it really has no bearing on that

issue. Maj. Op., Section III.A.3, supra. Indeed, the quotations

it uses from TransUnion that purportedly support its position

regarding the need for consequences (i.e., its assertion that the

“mere receipt” of a misleading communication is not enough

and its statement that the mere risk that a plaintiff who receives

a misleading letter from a debt collector will suffer such a

cognizable injury is “too speculative to support Article III

standing”) are from TransUnion’s rejection of the argument

that the non-sent report plaintiffs should have standing because

there is a risk that the reports might be sent. That is the

“speculation” it is discussing. As Justice Kagan recently

advised, “when you see that my description of precedent

differs from the majority’s go take a look at the decision. . . .

I’ll take my chances on readers’ good judgment.” Andy

6

The Majority quotes TransUnion regarding the need to

find a “sufficiently close relationship” between a statutory

harm and a common law harm, but it fails to heed the Supreme

Court’s essential conclusion: once a close relationship is found

with a common law analog, the plaintiff has standing because

the injury is concrete as a matter of law. Rather than reasoning

along these lines and asking, “does the harm from a misleading

communication from a collection agency have a sufficiently

close relationship to the harm from a fraudulent

misrepresentation?” (the answer is, yes), the Majority focuses

on “consequences” flowing from the receipt of a misleading

communication and asserts that there is no match, or “close

relationship,” because to state a claim for fraudulent

misrepresentation the plaintiff must have detrimentally relied

on the communication, i.e., there must be some “further

consequence.” Maj. Op. Section III.A.3., supra. To analogize

to the tort of fraudulent misrepresentation, the Majority

concludes, a § 1692e claimant must suffer some cognizable

harm that flows from the confusion that attends her receipt of

the misleading communication.

But in TransUnion, the Court noted that “[i]n looking to

whether a plaintiff’s asserted harm has a ‘close relationship’ to

a harm traditionally recognized as providing a basis for a

lawsuit in American courts, we do not require an exact

duplicate.” Id. Bearing that principle in mind, the Court

concluded that saying someone was a “potential terrorist” was

“sufficiently close” to saying that he is an actual terrorist so as

to be analogized to defamation. Id. In truth, the statement was

more misleading than defamatory. If the Supreme Court had

Warhol Found. for Visual Arts, Inc. v. Goldsmith, No. 21-869,

598 U.S. ____, ____ (slip op. at 4, n.2) (2023) (Kagan, J.,

dissenting).

7

wanted the relationship to defamation to be something more

than “sufficiently close,” the analogy may not have worked

because truth might have been a defense. Indeed, based on the

matching of the names, the “potential match” was true (i.e., the

name “Susan Smith” appeared on the OFAC list). Moreover,

a match may have been true for some plaintiffs (i.e., if the

“Susan Smith” identified by the credit report was, in fact, the

same “Susan Smith” identified on the OFAC list). So, the

element of falsity normally associated with defamation was

tenuous at best. That did not concern the Court: an exact

match to the common law cause of action is not required.

The Majority here appears to heed our, and the Supreme

Court’s, directives by analogizing Huber’s situation to the

common law tort of fraudulent misrepresentation:

Huber asserts that the receipt of

deceptive collection letters meets

that test, because the common law

has long reflected an interest in

avoiding the harms inherent to

receiving misleading information.

We take this as an oblique

reference to the tort of fraudulent

misrepresentation and agree it is an

apt analogue. Like fraudulent

misrepresentation, a § 1692e

violation involves deception[,] and

the statutory prohibition on the use

of any false, deceptive, or

misleading representation or

means in connection with the

collection of any debt protects

8

essentially the same interests as

that traditional cause of action.

Maj. Op., Section III.A.3, supra (cleaned up and bracketed

alteration added). The Majority should have ended its

reasoning there and concluded with a statement similar to the

one that the Supreme Court made in TransUnion: “In short, a

plaintiff who received a misleading statement regarding the

amount of the debt she owes suffered a concrete injury in fact

under Article III.” Instead, the Majority considers two

unnecessary issues: first, whether there has been some

“consequential action or inaction following receipt of [the]

misleading or deceptive collection letter,” Maj. Op., Section

III.A.3, i.e., did the plaintiffs detrimentally rely on the

misleading information? And second, what was the extent of

the harm caused by the detrimental reliance?

As to the first inquiry, action in reliance on the

misrepresentation is an element of a cause of action for

fraudulent misrepresentation. But in discussing the common

law analog in Horizon, we specifically rejected any notion that

a plaintiff’s allegations need to state a cause of action:

We are not suggesting that

Horizon’s actions would give rise

to a cause of action under common

law. No common law tort

proscribes the release of truthful

information that is not harmful to

one’s reputation or otherwise

offensive.

Horizon, 846 F.3d at 639. Although the Majority quotes this

language from Horizon, it proceeds to disregard it by focusing

its attention on the proposition that “until a deception occurs—

9

unless and until there is reliance by the victim—the tort of

fraud has not been committed.” Maj. Op., Section III.A.3,

supra. In Horizon, the personal information that was on the

stolen computers was not false, so there really was no cause of

action at common law for the employers’ failure to safeguard

the plaintiffs’ personal information. But we reasoned that the

‘intangible harm’ that the FCRA seeks to remedy had a

sufficiently close relationship to a harm—invasion of

privacy—that has traditionally been regarded as providing a

basis for a lawsuit in English and American courts. It was a

stretch to say that the insurer, by being negligent in keeping the

information sufficiently secure, had invaded its members’

privacy. No matter; the harm was close enough based on the

interest to be protected. And in Susinno, we reiterated that the

focus should be on the interest to be protected:

[A] close relationship does not

require that the newly proscribed

conduct would “give rise to a cause

of action under common law.” But

it does require that newly

established causes of action

protect essentially the same

interests that traditional causes of

action sought to protect.

Susinno, 862 F.3d at 351 (internal citation omitted) (emphasis

added). To be clear, the historical analysis in Susinno centered

on the link between the common law analog and the statutory

cause of action itself—not any specific theory of liability under

the statute. The plaintiff’s allegation of receiving a single

unwanted robocall amounted to an unadorned, garden-variety

TCPA claim. We still concluded that the mere violation of the

TCPA provision at issue worked a sufficiently concrete injury

10

for Article III standing. So, our precedent leaves no room to

ask for more than that in this case.

In TransUnion, the Court analogized the asserted harm

to the harm of defamation looking only at the dissemination of

misleading information, and it respected Congress’s decision

to protect an individual’s interest in not having misleading

information disseminated by credit reporting agencies. While

the Majority says there must be “reputational or emotional

harm,” Maj. Op., Section III.A.3., the Court in TransUnion did

not concern itself with whether the information was false, or

whether anyone receiving the report actually read it or denied

credit to the plaintiffs, or whether there was harm to plaintiffs’

reputations—all relevant considerations in a defamation case.

Rather, the Court was concerned with the interest at stake, not

with mirroring the cause of action.

By adding a requirement of consequences resulting

from reliance, the Majority drastically limits the remedy

Congress provided, undermining Congressional policy and the

separation of powers. As we noted in Sussino, this is a matter

for the democratic process. Furthermore, not only is the

imposition of this reliance element contrary to precedent, but

the error of imposing this element is compounded by the

Majority’s holding that the predominance inquiry of the class

action certification analysis cannot be conducted unless and

until the District Court inquires into whether each class

member did or did not detrimentally rely on the defendant’s

misleading collection letter, and the extent of harm. This is not

only analytically incorrect, but it also dooms all class actions

11

under § 1692e of the FCRA. 4 This undermines the statutory

scheme.

Once the relationship to common law is found, there is

no place for further inquiry, let alone any inquiry into the extent

of the harm. This is the Majority’s second error. The Majority

insists upon “further consequences” that follow from the

detrimental reliance and opines that “confusion, without more,

is not a concrete injury.” Maj. Op., Section III.A.3, supra.

4

Moreover, I am not sure as a practical matter what such an

inquiry will “look like.” The Majority states only that, on

remand, Huber should submit evidence that would allow the

District Court to estimate how many class members have

standing, yet it also suggests that the District Court could

potentially find that receiving individualized evidence on class

members’ standing is not feasible. Maj. Op. Section III.C.2,

supra. Beyond that guidance, what is the District Court to do

on remand? Are the class members to be asked if they

detrimentally relied on the misleading notice? What does

“detrimentally relied on” mean? Are the negative

consequences here really “detrimental reliance” or just obvious

consequences? What would a class member need to have done

to satisfy this requirement? What if they lost sleep? Or

suffered from anxiety? Why does it matter? The harm that

Congress sought to prevent was the harm experienced by the

receipt of misleading information by debtors. If the

information is misleading as a matter of law—as this was—

presumably the debtor was deceived. That is the same harm

that an action for fraudulent misrepresentation was aimed at, at

common law. That is all we need to know for purposes of

standing. Why do we need to know what the debtor did after

receiving the misleading letter? What if they did nothing

because they did not know what to do? It matters not.

12

However, as I have explained, as long as an analog is

identified, plaintiffs have “suffered a concrete injury in fact

under Article III,” whether or not plaintiff is subjectively

confused. TransUnion, 141 S. Ct. at 2209. Confusion is a red

herring. 5 When we speak of harm in this context, we speak of

the harm envisioned by Congress, i.e., “a harm . . . traditionally

. . . providing a basis for a lawsuit in English or American

courts.” Sussino, 862 F.3d at 351 (quoting Horizon, 846 F.3d

at 639–40). It is the harm to the interest that is to be protected,

not actual harm to the plaintiff. Otherwise, why would the

Supreme Court and we not have considered actual harm in the

precedents we rely on? The Majority’s focus on finding a

tangible harm, and determining the extent of this harm and

injury—a sort of “analog plus” analysis—is misplaced.

The Majority seems to reject the notion that an

intangible harm can be concrete but that is what TransUnion is

all about. TransUnion, 141 S. Ct. at 2204 (“Various intangible

harms can also be concrete.”). The intangible harms at the

core of all of the statutory causes of action we have been

describing confer standing without proof of tangible injury.

See id. (gathering examples). So, the Majority’s “analog plus”

analysis, which insists upon proof of tangible harm is at odds

with the precedents that are our guide.

5

The District Court also seemed confused by the issue of

confusion, but it ultimately reasoned more along the lines of

the inevitable nature of harm here: “In matters of debt

collection, informational harm leads to financial harm.” Huber

v. Simon’s Agency, Inc., Civ. A. No. 2:19-01424, 2022 WL

1801497, at *4 (E.D. Pa. June 2, 2022). This is the judgment

that Congress made, and we need not inquire further.

13

Instead, we should look at the interest that Congress

sought to protect and ask whether there is similarity between

that interest and the interest that common law sought to protect.

So, too, here, the interest to be protected is the interest

in not receiving false or misleading information, and the harm

of a misleading communication from a collection agency to a

debtor regarding the amount that is owed has a close

relationship to the harm caused by a fraudulent

misrepresentation at common law. 6 As I noted above, the

Majority says so itself.

6

Our analysis in Susinno also confirms that statutory causes of

action can have multiple analogs and that a plaintiff has

standing as long as the court can identify one that fits—

whether or not the plaintiff does so. Thus, even though we

thought intrusion upon seclusion was the best analog, we

agreed with the Ninth Circuit “that TCPA claims closely relate

to [other] traditional claims for ‘invasions of privacy . . . and

nuisance [which] have long been heard by American courts.’”

Susinno, 862 F.3d at 351 (quoting Van Patten v. Vertical

Fitness Grp., LLC, 847 F.3d 1037, 1043 (9th Cir. 2017))

(second alteration in original). Likewise, colleagues on our

sister courts have suggested that torts other than fraudulent

misrepresentation bear a close relationship to the interest

protected by § 1692e: intrusion upon seclusion, abuse of

process, emotional distress from negligent transmission of

misleading information, see Trichell v. Midland Credit Mgmt.,

Inc., 964 F.3d 990, 1008–09 (11th Cir. 2020) (Martin, J.,

concurring in part and dissenting in part), or intentionally or

recklessly caused emotional distress, see Pierre v. Midland

14

So, in TransUnion, the Court did not ask how harmful

it was to the plaintiff that a third party would read that he is a

potential match to the OFAC list, or what negative

consequences actually flowed from it. Instead, it concluded

that plaintiffs whose reports were disseminated had

“demonstrated concrete reputational harm” even though the

plaintiffs made no showing of any tangible harm to their

reputation. And in Susinno, we found an analog because the

plaintiff’s right of freedom from invasion of privacy was

protected at common law. Susinno, 862 F.3d at 351–52. That

was enough. We did not look to see whether the defendant’s

phone call really intruded upon the plaintiff’s privacy or how

great the intrusion was. The call may have been merely

annoying, but that did not concern us. In fact, we specifically

rejected the notion that repeated calls “with such persistence

and frequency as to amount to . . . hounding,” would be

necessary. Susinno, 862 F.3d at 351 (citation omitted). We

focused on the right Congress chose—“it sought to protect the

same interests implicated in the traditional common law cause

of action”—and found that it was traditionally worthy of

protection. Id. at 352. And, contrary to the Majority’s desire

for additional negative consequences or more harm than what

a robocall involves, we did not hesitate to find the right worthy

of protection notwithstanding that the plaintiff had received

only one robocall. Congress recognized the harm was worthy

of protection, and “Spokeo addressed, and approved, such a

choice by Congress.” Id.

In no case relevant to the inquiry at hand has the

Supreme Court or our court considered the actual harm or

Credit Mgmt., Inc., 29 F.4th 934, 946–48 (7th Cir. 2022)

(Hamilton, J., dissenting).

15

extent of injury. Yet, the Majority wishes to engage with what

actually happened to Ms. Huber, what she did, and what

happened to every plaintiff in the class. But this is irrelevant

to our analysis. Standing in this type of case should be decided

as a preliminary matter, and nowhere in the jurisprudence is

there any indication that we should consider evidence

regarding the actual impact or consequences of the violation on

a particular plaintiff. 7

To ask how harmful it was to the plaintiff to receive this

misinformation is to add to the straightforward and objective

analog test that applies here. The question the Court asked in

TransUnion was whether the “harm from a misleading

statement of this kind bears a sufficiently close relationship to

the harm from a false and defamatory statement.” TransUnion,

141 S. Ct. at 2209. The answer was “yes.” And here, substitute

“fraudulent misrepresentation” for “a false and defamatory

statement” in the last phrase: does the harm from a misleading

statement from a debt collector to a debtor about the amount

7

In explaining the requirement of standing and why courts

must ensure that plaintiffs have a personal stake in the

litigation, the Majority asks rhetorically: “Why not allow any

plaintiff seeking to serve as a private attorney general to

enforce the statutory right alongside the Executive Branch?”

No doubt this question would help hone the analysis in some

cases, but not in this one. There is no dispute that Huber

received a misleading collection letter and that she suffered a

harm. She is not, thus, acting as a “private attorney general,”

she is acting on her own behalf to obtain relief for the harm she

has suffered. There is no risk in this case that Huber or any

member of the putative class are acting as private attorneys

general and the reference to this concept does little to advance

our understanding of standing in this context.

16

owed bear a sufficiently close relationship to the harm from a

fraudulent misrepresentation? The answer is “yes.” 8

Our precedent has established a specific test for

concreteness where Congress has provided a remedy. Using

that test, we should conclude that the match to the harm at issue

in the tort of fraudulent misrepresentation is more than

“sufficiently close,” and the relevant interest at stake is for

debtors to be protected from misleading information from

collection agencies, much the same way as common law

sought to protect people from fraudulent misrepresentations.

The Majority reached this very conclusion. Standing to pursue

the statutory remedy requires nothing more; our precedent says

that is enough. To require more in the name of “standing” is

unwarranted where Congress has chosen to provide a remedy

that meets the test that the Supreme Court established in

8

And even if the impact on the plaintiff were the focus, the

Majority overlooks the context of the FDCPA. The entire

premise underlying congressional action in this area is the

fragile state of debtors preyed upon by collection agencies. In

passing the FDCPA, the Senate noted that the “suffering and

anguish which [unscrupulous debt collectors] regularly inflict

is substantial.” S. Rep. No. 95-382, at 2 (1977). While we

have concluded that this was not an informational injury as

such, can there be any doubt that a misleading statement of the

amount owed leading to an inability to pay the amount due is

any less harmful than a failure to indicate an amount at all?

And just as in the context of the TCPA, we have deferred to

Congress’s judgment that one robocall is actionable because of

the interests at stake, here, too, we need to respect Congress’s

view that debtors need protection from misleading information

of this nature.

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Spokeo and TransUnion and we have followed in Horizon and

Sussino.

The Majority’s approach does mischief to the approach

that the Supreme Court and our Court have endorsed.

Therefore, I must respectfully part ways with the Majority.

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