In a long-awaited decision, the Eleventh Circuit, sitting en banc, yesterday reversed the panel decision in Hunstein. In this case, a borrower sued under the FDCPA, alleging that his creditor’s electronic transmission of information about his account to a mailing vendor violated the FDCPA’s prohibition on communications with third parties.
The prior panel decision, issued in October 2021, concluded that the plaintiff had Article III standing despite not alleging any actual harm. Recent Supreme Court precedent has held that statutory violations without any actual harm can result in a concrete injury under Article III if the statutory harm at issue is a close fit with a tort traditionally recognized in common law. The panel reasoned that the communication of information to third parties was akin to the tort of public disclosure of private facts.
The en banc court, however, disagreed with the standing analysis and held that the plaintiff did not have Article III standing. Judge Britt Grant, writing for the majority, concluded that there is not a close fit between the FDCPA provision at issue and public disclosure of private facts because that tort requires publicity of highly offensive facts. In this case, there was no publicity, which requires disclosure to the public at large and not just one private party. Judge Grant also found that the communications were not of highly offensive information. Because these essential elements of the tort were missing, the plaintiff lacked standing and the district court was correct in dismissing the case.
By Bret Chaness | Rubin Lublin, LLC
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