Today, the 11th Circuit Court of Appeals issued a much anticipated decision. This decision was a result of the petition for rehearing that has been pending for months, as well as the Supreme Court’s decision in TransUnion v. Ramirez. The short of it: the panel vacated the prior Hunstein decision, issued a substituted decision, but then reached the same result.
The Court made the same final decision despite the arguments raised in the petition for rehearing, the additional arguments raised by the amicus briefs and the limitations on both standing and the scope of any “disclosure” contained in the Supreme Court’s Ramirez decision. Specifically, the new opinion concludes that the consumer had suffered a “concrete injury” due to the disclosure to the printer to satisfy the standing requirement; and the debt collector’s transmittal of the information to the print vendor was a communication “in connection with the collection of any debt” to a third-party under the FDCPA.
As for some of the details, and dealing first with the standing issue, the Court found that the possible violation of a federal statute, standing alone, was a sufficient injury to cause a “concrete injury” because that possible violation, in the form of the disclosure of information about the debt, was of the same “kind” as the common law tort of an invasion of privacy by publicly disclosing private facts. And as to the merits, the Court concluded that the transmittal of the data file was a communication because the defendant did not contest that allegation, and that the communication was “in connection with the collection of any debt” because specific details about the debt were included.
If that was not bad enough, in responding to defendant’s argument about the practical consequences of the decision, the Court referenced the fact that agencies will, in the ordinary course of business, use not only print vendors, but also “other third-party entities.” It other words, the Court implicitly endorses claims against other third-party vendors that are required in the collection process, meaning this panel believes that it is proper to bring Hunstein claims against other vendors too, like skip tracers, telephony vendors or scrub services.
There is a silver lining – the Court’s opinion suggested that a Hunstein plaintiff would be required to have “actually read and not merely processed Hunstein’s sensitive information.” This should be a strong defense in most cases on the merits – but one that requires discovery.
And a brass lining too – unlike the first Hunstein decision, which was a unanimous decision from the three judge panel, there was a dissent filed in the revised opinion (the new decision was issued by the same three judge panel as the original, and did not resolve the petition for a rehearing in front of the entire 11th Circuit). The dissent is focused on the standing issue, and concluded that Ramirez required the dissenting judge to change his mind and find that Hunstein did not suffer a concrete injury. But in a footnote, the dissenting judge touched on the merit issues, and suggested that the printer was not a “person” to whom details of the debt were disclosed, but instead a “medium” through which the information was transmitted, so that there was no “communication” with the printer.
Confused by all this? We understand and are here to help!
► Back to News & Resources
