Hunstein v. Preferred Collection & Mgmt. Servs., Inc.

48 F.4th 1236

Richard HUNSTEIN, Plaintiff-Appellant,

v.PREFERRED COLLECTION AND MANAGEMENT SERVICES, INC., Defendant-Appellee.

No. 19-14434

United States Court of Appeals, Eleventh Circuit.

Filed: September 8, 2022

Thomas Martin Bonan, Bryan James Geiger, Seraph Legal, PA, Tampa, FL, for Plaintiff-Appellant.

Shay Dvoretzky, Kyser Blakely, Parker Andrew Rider-Longmaid, Sylvia Tsakos, Washington, DC, Richard Jay Perr, Kaufman Dolowich Voluck, Philadelphia, PA, Robert Alexander Vigh, Solomon Vigh & Springer, PA, Tampa, FL, Sam Auld, Skadden Arps Slate Meagher & Flom, LLP, New York, NY, for Defendant-Appellee.

Kirsten H. Smith, Sessions Israel & Shartle, LLC, Metairie, LA, for Amici Curiae Alltran Financial, LP, Nationwide Credit, Inc., Radius Global Solutions, LLC, Transworld Systems Inc.

Mitchell L. Williamson, Barron & Newburger, PC, Somerset, NJ, for Amicus Curiae American Association of Healthcare Administrative Management.

R. Aaron Chastain, Stephen Colmery Parsley, Bradley Arant Boult Cummings, LLP, Birmingham, AL, for Amici Curiae American Bankers Association, American Financial Services Association, Consumer Bankers Association, Credit Union National Association, Housing Policy Council, Matrix Imaging Solutions, LLC Mortgage Bankers Association.

Lauren Marshall Burnette, Messer Strickler Burnette, Ltd., Jacksonville, FL, for Amici Curiae Arizona Creditors Bar Association, Attorneys Association of Alabama, Inc., California Creditors Bar Association, Colorado Creditors Bar Association, Inc., Creditors Rights Attorney Association Nevada, Delaware Creditors Bar Association, Georgia Creditors Council, Illinois Creditors Bar Association, Compumail Information Services, Inc., Indiana Creditors Bar Association, Datamatx, Kansas Creditor Attorney Association, Hatteras, Inc., Maryland-DC Creditors Bar Association, Inc., HC3, Inc., Michigan Creditors Bar Association, IMS, Inc., Minnesota Creditor's Rights Bar Association, National Creditors Bar Association, New Jersey Creditors Bar Association, Nordis, Inc., New Mexico Creditors Bar Association, North Carolina Creditors Bar Association, Pennsylvania Creditors Bar Association, Ohio Creditor's Attorneys Association, Texas Creditors' Bar Association, Ontario Systems, LLC, Virginia Creditors' Bar Association.

Jessica Klander, Bassford Remele, Minneapolis, MN, for Amicus Curiae Consumer Relations Consortium.

Bryan Christopher Shartle, Kirsten H. Smith, Sessions Israel & Shartle, LLC, Metairie, LA, for Amicus Curiae Credence Resource Management, LLC.

Scott Stephen Gallagher, Smith Gambrell & Russell, LLP, Jacksonville, FL, for Amicus Curiae Enhanced Recovery Company, LLC.

Ellen L. Noble, Public Justice, PC, Washington, DC, for Amici Curiae Public Justice, National Association of Consumer Advocates, National Consumer Law Center.

Ronald S. Canter, The Law Offices of Ronald S. Canter, LLC, Rockville, MD, for Amicus Curiae Florida Creditors Bar Association.

Jadd Fitzgerald Masso, Clark Hill Strasburger, Dallas, TX, Leslie Carol Bender, Senior Counsel, Eversheds Sutherland (US) LLP, Washington, DC, for Amicus Curiae Livevox, Inc.

William J. Denius, Denius Law, PA, Orlando, FL, for Amicus Curiae Missouri Creditors, Inc.

Manuel Newburger, Attorney, Barron & Newburger PC, Greystone II, for Amici Curiae National Association of Professional Process Servers, The National Creditors Bar Association.

Brit J. Suttell, Barron & Newburger, PC, Media, PA, for Amicus Curiae New York State Creditors Bar Association.

John Henry Bedard, Jr., Michael Kevin Chapman, Bedard Law Group, PC, Duluth, GA, for Amicus Curiae Print and Mail Vendor Coalition.

Donald S. Maurice, Jr., Maurice Wutscher, LLP, Flemington, NJ, Martin Brent Yarborough, Maurice Wutscher, LLP, Birmingham, AL, Jason Brent Tompkins, Jonathan P. Hoffmann, Balch & Bingham, LLP, Birmingham, AL, for Amicus Curiae Receivables Management Association International, Inc.

Stefanie H. Jackman, Troutman Pepper Hamilton Sanders, LLP, Atlanta, GA, Amicus Curiae Revspring, Inc.

Keith Jerrod Barnett, Troutman Pepper Hamilton Sanders, LLP, Atlanta, GA, Ethan Ostroff, Troutman Pepper Hamilton Sanders, LLP, Virginia Beach, VA, Misha Tseytlin, Troutman Pepper Hamilton Sanders, LLP, Chicago, IL, for Amicus Curiae Third Party Payment Processors Association.

Adam Granich Unikowsky, Jenner & Block, LLP, Washington, DC, Deb White, Retail Litigation Center, Inc., Washington, DC, for Amicus Curiae Output Services Group, Inc., Retail Litigation Center Inc.

Before William Pryor, Chief Judge, Wilson, Jordan, Rosenbaum, Jill Pryor, Newsom, Branch, Grant, Luck, Lagoa, Brasher, and Tjoflat,^* Circuit Judges.

Grant, Circuit Judge, delivered the opinion of the Court, in which William Pryor, Chief Judge, Wilson, Branch, Luck, Lagoa, Brasher, and Tjoflat, Circuit Judges, joined.

William Pryor, Chief Judge, filed a concurring opinion, in which Tjoflat, Circuit Judge, joined.

Newsom, Circuit Judge, filed a dissenting opinion, in which Jordan, Rosenbaum, and Jill Pryor, Circuit Judges, joined.

Grant, Circuit Judge:

In opinion after opinion, one standing issue continues to arise—what it takes to show concrete harm. That question was once tricky. But for this case and others like it, where the plaintiff alleges no harm besides the violation of a statute, the Supreme Court has cut a straightforward path. Like it or not, that path is ours to follow.

We have done so before. We recently held, en banc, that pleading a bare procedural violation of a statute was not enough, at least on its own, to establish concrete injury. And in that same case, we followed the Supreme Court's direction to consider common-law torts as sources of information on whether a statutory violation had caused a concrete harm. The comparison shed helpful light there; because two tort elements were missing from the statutory violation, no similar harm could be inferred between the two.

The Supreme Court has since ratified our approach. In TransUnion , the Court reiterated that harm from a statutory violation had to be "real" in order to be concrete, and that one way to tell if a harm is real is to compare it to a harm redressed in a traditional common-law tort. The Court also used the same approach that we did—comparing the elements—to determine whether the harm caused by a new statutory violation was similar to the one invoked by an old tort claim. When viewed as a way to evaluate whether actual harm occurred, this approach makes sense—if the elements do not match up, how could the harm that results from those elements?

Here, we walk that same path again. The plaintiff alleges that a creditor sent information about his debt to a mail vendor, which then sent him a letter on behalf of the creditor reminding him of the terms of the debt. Though he identified no specific harm in his complaint, he now claims that the debt collector's act caused him a concrete injury because it was analogous to the common-law tort of public disclosure. The problem with this theory is that his alleged reputational injury lacks a necessary element of the comparator tort—the requirement that the disclosure be public . Without publicity, a disclosure cannot possibly cause the sort of reputational harm remediated at the common law.

The comparison to public disclosure of private facts is the sole basis on which the plaintiff rested his claim of concrete harm. Because that comparison fails, he cannot show any real harm, and we dismiss his complaint.

I.

Richard Hunstein experienced a nearly inevitable frustration of modern American life—an expensive medical bill. When he did not pay, the hospital transferred the debt to a collection agency, Preferred Collection and Management Services. The agency, in turn, hired a commercial mail vendor to notify Hunstein that he needed to settle his debt. To that end, the collection agency sent its vendor several pieces of information, including Hunstein's name, his son's name, the amount of the debt, and the fact that the debt was incurred by Hunstein for his son's medical treatment. The vendor inserted the information into a prewritten form letter (on Preferred Collection's letterhead and with Preferred Collection's signature) and sent it along to Hunstein.¹

Within days of receiving the letter, Hunstein filed suit. He alleged that Preferred Collection had disclosed information about his debt to a third party—the mail vendor—in violation of the Fair Debt Collection Practices Act.² See 15 U.S.C. § 1692c(b). The district court granted Preferred Collection's motion to dismiss, finding no violation because the communication to the mail vendor was not "in connection with the collection of any debt" as required for liability under the Act. Id. Hunstein appealed.

A panel of this Court reversed—but not before requesting supplemental briefing on standing. Hunstein v. Preferred Collection & Mgmt. Servs., Inc. , 994 F.3d 1341, 1344–45 (11th Cir. 2021). Our en banc decision in Muransky v. Godiva Chocolatier, Inc. had recently been issued, making it clear that Hunstein's suit could not survive a standing inquiry if he simply alleged a "bare procedural violation" of the Fair Debt Collection Practices Act. See 979 F.3d 917, 921 (11th Cir. 2020). Muransky , to be sure, was also clear that some statutory violations could cause a real harm that supported standing; we reiterated the Supreme Court's guidance from Spokeo, Inc. v. Robins that one way to evaluate such alleged statutory harms was by comparing them to traditional common-law tort claims. See id. at 926 (citing 578 U.S. 330, 340–41, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016) ).

Because Hunstein had pleaded what could be characterized, at best, as an intangible harm resulting from a statutory violation, the panel considered whether his alleged injury had a common-law analogue. It did—at least as the panel saw it. The majority opinion recognized that Hunstein had alleged neither a tangible harm nor a "risk of real harm," but held that his injury was concrete in any event. Hunstein , 994...