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

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-14434
____________________
RICHARD HUNSTEIN,
Plaintiff-Appellant,
versus
PREFERRED COLLECTION AND MANAGEMENT SERVICES,
INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:19-cv-00983-TPB-TGW
____________________
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2 Opinion of the Court 19-14434
Before WILLIAM PRYOR, Chief Judge, WILSON, JORDAN,
ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA,
BRASHER, and TJOFLAT, * Circuit Judges.
GRANT, Circuit Judge, delivered the opinion of the Court, in which
WILLIAM PRYOR, Chief Judge, WILSON, BRANCH, LUCK, LAGOA,
BRASHER, and TJOFLAT, Circuit Judges, joined.
WILLIAM PRYOR, Chief Judge, filed a concurring opinion, in which
TJOFLAT, Circuit Judge, joined.
NEWSOM, Circuit Judge, filed a dissenting opinion, in which
JORDAN, ROSENBAUM, and JILL PRYOR, Circuit Judges, joined.
GRANT, Circuit Judge:
In opinion after opinion, one standing issue continues to
arise—what it takes to show concrete harm. That question was
once tricky. But for this case and others like it, where the plaintiff
alleges no harm besides the violation of a statute, the Supreme
Court has cut a straightforward path. Like it or not, that path is
ours to follow.
We have done so before. We recently held, en banc, that
pleading a bare procedural violation of a statute was not enough,
at least on its own, to establish concrete injury. And in that same
case, we followed the Supreme Court’s direction to consider
* Senior Circuit Judge Gerald B. Tjoflat elected to participate in this decision
pursuant to 28 U.S.C. § 46(c).
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common-law torts as sources of information on whether a
statutory violation had caused a concrete harm. The comparison
shed helpful light there; because two tort elements were missing
from the statutory violation, no similar harm could be inferred
between the two.
The Supreme Court has since ratified our approach. In
TransUnion, the Court reiterated that harm from a statutory
violation had to be “real” in order to be concrete, and that one way
to tell if a harm is real is to compare it to a harm redressed in a
traditional common-law tort. The Court also used the same
approach that we did—comparing the elements—to determine
whether the harm caused by a new statutory violation was similar
to the one invoked by an old tort claim. When viewed as a way to
evaluate whether actual harm occurred, this approach makes
sense—if the elements do not match up, how could the harm that
results from those elements?
Here, we walk that same path again. The plaintiff alleges
that a creditor sent information about his debt to a mail vendor,
which then sent him a letter on behalf of the creditor reminding
him of the terms of the debt. Though he identified no specific harm
in his complaint, he now claims that the debt collector’s act caused
him a concrete injury because it was analogous to the common-
law tort of public disclosure. The problem with this theory is that
his alleged reputational injury lacks a necessary element of the
comparator tort—the requirement that the disclosure be public.
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Without publicity, a disclosure cannot possibly cause the sort of
reputational harm remediated at the common law.
The comparison to public disclosure of private facts is the
sole basis on which the plaintiff rested his claim of concrete harm.
Because that comparison fails, he cannot show any real harm, and
we dismiss his complaint.
I.
Richard Hunstein experienced a nearly inevitable frustration
of modern American life—an expensive medical bill. When he did
not pay, the hospital transferred the debt to a collection agency,
Preferred Collection and Management Services. The agency, in
turn, hired a commercial mail vendor to notify Hunstein that he
needed to settle his debt. To that end, the collection agency sent
its vendor several pieces of information, including Hunstein’s
name, his son’s name, the amount of the debt, and the fact that the
debt was incurred by Hunstein for his son’s medical treatment.
The vendor inserted the information into a prewritten form letter
(on Preferred Collection’s letterhead and with Preferred
Collection’s signature) and sent it along to Hunstein. 1
Within days of receiving the letter, Hunstein filed suit. He
alleged that Preferred Collection had disclosed information about
1 These letters, a common feature of modern debt collection, are known as
“dunning letters.” That term comes from the verb “dun,” a word of unknown
origin meaning “[t]o importune (a debtor) for payment.” Dun, The American
Heritage Dictionary of the English Language 555 (5th ed. 2016).
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his debt to a third party—the mail vendor—in violation of the Fair
Debt Collection Practices Act. 2 See 15 U.S.C. § 1692c(b). The
district court granted Preferred Collection’s motion to dismiss,
finding no violation because the communication to the mail
vendor was not “in connection with the collection of any debt” as
required for liability under the Act. Id. Hunstein appealed.
A panel of this Court reversed—but not before requesting
supplemental briefing on standing. Hunstein v. Preferred
Collection & Mgmt. Servs., Inc., 994 F.3d 1341, 1344–45 (11th Cir.
2021). Our en banc decision in Muransky v. Godiva Chocolatier,
Inc. had recently been issued, making it clear that Hunstein’s suit
could not survive a standing inquiry if he simply alleged a “bare
procedural violation” of the Fair Debt Collection Practices Act. See
979 F.3d 917, 921 (11th Cir. 2020). Muransky, to be sure, was also
clear that some statutory violations could cause a real harm that
supported standing; we reiterated the Supreme Court’s guidance
from Spokeo, Inc. v. Robins that one way to evaluate such alleged
statutory harms was by comparing them to traditional common-
law tort claims. See id. at 926 (citing 578 U.S. 330, 340–41 (2016)).
Because Hunstein had pleaded what could be characterized,
at best, as an intangible harm resulting from a statutory violation,
2 Hunstein brought two additional claims on statutory grounds, alleging
violations of a different section of the Fair Debt Collection Practices Act and
of the Florida Consumer Collection Practices Act. See 15 U.S.C. § 1692f; Fla.
Stat. § 559.72(5). But he appeals only the dismissal of his § 1692c(b) claim.
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the panel considered whether his alleged injury had a common-law
analogue. It did—at least as the panel saw it. The majority opinion
recognized that Hunstein had alleged neither a tangible harm nor
a “risk of real harm,” but held that his injury was concrete in any
event. Hunstein, 994 F.3d at 1346–49 (quoting Muransky, 979 F.3d
at 927). It was enough, the panel said, that his alleged harm had a
“close relationship” to “invasion-of-privacy torts,” especially
“public disclosure of private facts.” Id. at 1347 (quotations
omitted). The panel also concluded, in what it treated as either a
second or a separate stage in evaluating concrete injury, that
Hunstein had the judgment of Congress on his side. Id. at 1348.
Before that opinion went into effect, the Supreme Court
issued TransUnion LLC v. Ramirez, which drilled down on what a
plaintiff must show to establish that an alleged intangible harm is a
concrete injury. 141 S. Ct. 2190 (2021). The panel vacated its first
opinion in light of TransUnion. Hunstein v. Preferred Collection
& Mgmt. Servs., Inc., 17 F.4th 1016, 1020 (11th Cir. 2021). But it
also issued a new one. The new opinion spent more energy on the
standing analysis, but ultimately reached the same result—this
time over a vigorous dissent.
The panel majority admitted that TransUnion “may seem—
at least on its face—to be in some tension with” the conclusion that
Hunstein had standing to bring his claim. Id. at 1031. Even so, at
least by the lights of the majority, the allegation that “some
measure of disclosure in fact occurred” was close enough to the
tort of public disclosure to constitute a concrete injury. Id. at 1027,
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1032. The dissent disagreed, arguing that such logic “swe[pt] much
more broadly than TransUnion would allow.” Id. at 1038 (Tjoflat,
J., dissenting).
Following the revised opinion, our full Court voted to take
the case en banc. Hunstein v. Preferred Collection & Mgmt. Servs.,
Inc., 17 F.4th 1103, 1104 (11th Cir. 2021). We now consider, in light
of Spokeo, Muransky, and TransUnion, whether Hunstein has
standing.
II.
We review Article III standing de novo. Muransky, 979 F.3d
at 923. A plaintiff must support “each element” of standing with
“the manner and degree of evidence required at the successive
stages of the litigation.” Lujan v. Defs. of Wildlife, 504 U.S. 555,
561 (1992). Here, at the motion-to-dismiss stage, a plaintiff must
allege facts that, taken as true, “plausibly” state that the elements
of standing are met. Thole v. U.S. Bank N.A., 140 S. Ct. 1615, 1621
(2020); see also Muransky, 979 F.3d at 924 (citing Ashcroft v. Iqbal,
556 U.S. 662, 678–79 (2009)).
III.
As we have explained, one of the “unexpected consequences
of the common-law-analogy approach to identifying harms is the
growing insistence on hammering square causes of action into
round torts.” Muransky, 979 F.3d at 931. That admonition finds
new life in this case. Hunstein does his best to shove a nonpublic
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transfer of information into a tort targeting public disclosure, but it
just does not fit.
When considering whether an alleged intangible harm is
concrete, or “real,” we look to see if it matches up with a harm
“traditionally recognized as providing a basis for lawsuits in
American courts.” TransUnion, 141 S. Ct. at 2204. Spokeo offered,
and TransUnion affirmed, a “simple instruction” about how to do
so: “see if a new harm is similar to an old harm.” Muransky, 979
F.3d at 931. Although an “exact duplicate” of a traditionally
recognized harm is not required, the new allegations cannot be
missing an element “essential to liability” under the comparator
tort. TransUnion, 141 S. Ct. at 2209 (quotation omitted).
This guidance helps us heed our own warning to avoid
“overthinking” the analysis. Muransky, 979 F.3d at 931. The new
harm Hunstein alleges—a disclosure to a private party—is not
similar to the old harm cited, disclosure to the public. That
traditional tort requires publicity, and Hunstein alleges none.
Without publicity, none of the exposure targeted by the tort of
public disclosure is at play. He thus has failed to allege a concrete
harm, and has no standing to bring his suit.
A.
The reason it matters whether Hunstein has alleged a
concrete harm, rather than simply a statutory violation, is that
federal courts have limited jurisdiction. Under the Constitution,
we only have power to resolve “Cases” and “Controversies.” U.S.
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Const. art. III, § 2. Though three traditional doctrines govern
whether a case or controversy exists—standing, ripeness, and
mootness—standing has gotten the lion’s share of the attention in
recent cases.
The “irreducible constitutional minimum of standing” itself
has three components: injury in fact, causation, and redressability.
Lujan, 504 U.S. at 560–61. Here, injury is the only one in question.
Many of these cases spring from an allegation that a party has
violated a federal statute—but not every statutory wrong causes an
injury capable of supporting standing. No doubt, the public has a
shared interest in private companies complying with the law. See
TransUnion, 141 S. Ct. at 2206. That mutual interest, though,
“cannot ‘be converted into an individual right by a statute that
denominates it as such, and that permits all citizens (or, for that
matter, a subclass of citizens who suffer no distinctive concrete
harm) to sue.’” Id. (quoting Lujan, 504 U.S. at 576–77); see also
Carney v. Adams, 141 S. Ct. 493, 499 (2020) (A “plaintiff cannot
establish standing by asserting an abstract general interest common
to all members of the public.” (quotation omitted)).
In other words, “an injury in law is not an injury in fact.”
TransUnion, 141 S. Ct. at 2205. Only an alleged harm that is
“concrete and particularized” and “actual or imminent, not
conjectural or hypothetical” is enough to show that a party “has a
case or controversy rather than, say, a strong and abiding interest
in an issue, or a desire to obtain attorney’s fees.” Lujan, 504 U.S. at
560 (quotations omitted); Muransky, 979 F.3d at 924.
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This appeal, like so many others of recent vintage, hinges on
the concreteness requirement. An injury is concrete if it actually
exists—that is, if it is “real, and not abstract.” Spokeo, 578 U.S. at
340 (quotations omitted). A “bare statutory violation” is not
enough, no matter how beneficial we may think the statute to be.
Muransky, 979 F.3d at 936; see also Spokeo, 578 U.S. at 341. And
the requirement that an injury be concrete is “essential to the
Constitution’s separation of powers” because it ensures that
plaintiffs have a real stake in the actions they bring; it confines the
courts to the business of deciding disputes between parties. See
TransUnion, 141 S. Ct. at 2207.
The most obvious concrete harm is a physical injury or
financial loss. But a plaintiff can also have a real stake—and
therefore a real injury—when an alleged harm is intangible.
Spokeo, 578 U.S. at 340. Congress is “well positioned to identify”
those intangible harms, and when that body speaks by passing a
statute that includes a cause of action for a particular harm, we find
its judgment “instructive and important.” See id. at 341. Indeed,
we have understood since Lujan that “Congress may ‘elevate to the
status of legally cognizable injuries concrete, de facto injuries that
were previously inadequate in law.’” Id. (quoting Lujan, 504 U.S.
at 578 (brackets omitted)).
But these authorities speak to Congress observing the
existence of real-world injuries and creating federal causes of action
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to redress them—not creating new injuries out of whole cloth.3
Along those lines, the Supreme Court has cautioned that Congress
“may not simply enact an injury into existence, using its lawmaking
power to transform something that is not remotely harmful into
something that is.” TransUnion, 141 S. Ct. at 2205 (quotation
omitted). So congressional judgment, though instructive, is not
enough. As we said in Muransky, the Constitution forbids the view
that “once Congress has spoken, the courts have no further role.”
979 F.3d at 933.
One way we deal with this tension between appropriately
respecting congressional judgment and properly maintaining the
boundaries of Article III jurisdiction is by comparing new causes of
action to old ones. We ask “whether an alleged intangible harm
has a close relationship to a harm that has traditionally been
regarded as providing a basis for a lawsuit in English or American
courts.” Spokeo, 578 U.S. at 341. That kind of statutory violation,
the Supreme Court has instructed, generally causes harm concrete
enough to support standing. See TransUnion, 141 S. Ct. at 2204.
3 Statutes creating a right to information are notable examples of where
Congress may, in fact, do something that looks like creating an injury. But in
those instances, a party has a right to a concrete thing—information. We will
not digress on this point other than to say that the Supreme Court has set apart
these informational injuries from the typical tangible injuries of physical injury
and financial loss, and from those intangible injuries subject to the Court’s
comparative inquiry. See, e.g., TransUnion, 141 S. Ct. at 2214; Thole, 140 S.
Ct. at 1621 n.1.
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This is the second time in two years that our Court, sitting
en banc, has been tasked with deciding whether a plaintiff alleging
a statutory violation has established Article III standing. In
Muransky, we clarified Spokeo’s application to these sorts of harms
in considerable detail. Muransky, 979 F.3d at 925–27, 929–30.
Ultimately, we explained, the “key holding from Spokeo” is that “a
‘bare procedural violation, divorced from any concrete harm’ is not
enough to establish an Article III injury.” Id. at 929 (quoting
Spokeo, 578 U.S. at 341). We also emphasized that, although the
plaintiff there had not done so, a party could show that his cited
statutory violation caused or qualified as a concrete harm by
demonstrating a “close relationship” to a harm traditionally
recognized in tort law. Id. at 931 (quotation omitted).
The Supreme Court reaffirmed both points in TransUnion.
There, the Court doubled down on its decision in Spokeo, again
stressing that harms must be concrete—“real”—to give rise to
Article III standing. TransUnion, 141 S. Ct. at 2204 (quoting
Spokeo, 578 U.S. at 340). It reemphasized that, for intangible
harms, analogizing to longstanding torts is an important way to
determine whether an alleged intangible injury meets the
concreteness requirement. Id. at 2204–05. Particularly relevant
here, it put more meat on the bones of that approach, adding that
when an element “essential to liability” at common law is missing
from an alleged harm, the common-law comparator is not closely
related to that harm. Id. at 2209–10 (quotation omitted); see also
Muransky, 979 F.3d at 932. As the Court explained, a theory that
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“circumvents a fundamental requirement” of an analogous
common-law tort “does not bear a sufficiently ‘close relationship’”
to establish standing. TransUnion, 141 S. Ct. at 2210 n.6.
But why are common-law torts even relevant? TransUnion
endorsed the same theory that we articulated in Muransky: “The
fit between a new statute and a pedigreed common-law cause of
action need not be perfect, but we are called to consider at a
minimum whether the harms match up between the two.”
Muransky, 979 F.3d at 926; see TransUnion, 141 S. Ct. at 2209, 2210
n.6. The reason, in short, that we consider traditional torts is
because of the harm-to-harm comparison that they engender and
elucidate.
The facts of TransUnion, which dealt with two separate
classes of plaintiffs, themselves offer a helpful point of comparison
and guide us as we work through this analysis. First, TransUnion
found that—for purposes of comparing the class members’ alleged
harms to defamation—misleading information was close enough,
element-wise, to false information. TransUnion, 141 S. Ct. at 2209.
“The harm from being labeled a ‘potential terrorist’ bears a close
relationship to the harm from being labeled a ‘terrorist.’” Id. For
plaintiffs whose credit reports were released to a third party, that
was close enough; they had been harmed when misleading
information was published. That’s because “the harm from a
misleading statement” bore “a sufficiently close relationship to the
harm from a false and defamatory statement.” Id. But for those
plaintiffs whose credit files had not been shared with any creditors,
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the story was different. “[I]f inaccurate information falls into a
consumer’s credit file,” the Court asked, “does it make a sound?”
Id. (quotation omitted).
The answer was no. Because the basis for the harm giving
rise to a defamation claim was “the loss of credit or fame, and not
the insult,” only misleading information that was published could
lead to a reputational harm like the one suffered after a defamatory
statement. Id. (quoting John Baker, An Introduction to English
Legal History 474 (5th ed. 2019)). In other words, though
misleading information—like false information—can lead to unfair
reputational harm if publicized, no reputational harm at all occurs
when either sort of information is kept private.
TransUnion thus affirmed that this common-law tort
comparison is not make-work for lower courts, and that when
carrying it out we do not look at tort elements in a vacuum. We
make the comparison between statutory causes of action and those
arising under the common law with an eye toward evaluating
commonalities between the harms. See Muransky, 979 F.3d at 926.
Though TransUnion has gotten the most attention, and has
the most direct relevance to this case, we note that it is not the only
time the Supreme Court has dealt with the concrete harm
requirement after Spokeo. In Thole v. U.S. Bank N.A., for instance,
the Court similarly rejected a comparison to a common-law cause
of action and quickly dispatched the argument that “a plaintiff
automatically satisfies the injury-in-fact requirement whenever a
statute grants a person a statutory right and purports to authorize
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that person to sue to vindicate that right.” 140 S. Ct. at 1620
(quoting Spokeo, 578 U.S. at 341). Again—no standing when the
plaintiffs alleged a statutory violation that did not hurt them.
Cases since Spokeo have thus reiterated that an intangible
harm is concrete only if it can be said to “exist in the real world,”
independent of a new statutory cause of action. TransUnion, 141
S. Ct. at 2205 (quotation omitted). TransUnion in particular has
offered helpful detail on how to compare new causes of action and
old torts. And that detail makes extra sense if we consider the
comparison as part of the effort to evaluate whether an alleged
harm is real; if an element from the common-law comparator tort
is completely missing, it is hard to see how a statutory violation
could cause a similar harm.
B.
Applying these principles to the statutory violation alleged
by Hunstein is an exercise in simplicity. The holdings of Spokeo,
Muransky, and TransUnion are directly on point. Because the
harm Hunstein now asserts lacks an element essential to its only
plausible historical comparator, it lacks a close relationship with a
traditional common-law tort. Hunstein has alleged no other basis
for standing and his case must be dismissed.
We first identify the precise harm at issue. Hunstein alleges
that, rather than preparing a mailing on its own, Preferred
Collection sent information about his debt to a mail vendor, which
then populated the data in a form letter. That act, according to
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Hunstein, violated the statutory prohibition on communicating,
“in connection with the collection of any debt, with any person
other than the consumer.” 15 U.S.C. § 1692c(b).
What harm did this alleged violation cause? Hunstein’s
complaint does not say. Even now, he points to nothing tangible
like financial loss or physical injury. See Muransky, 979 F.3d at 926.
Instead, he says that by sending the information about his debt to
the mail vendor, Preferred Collection committed an act similar to
the tort of public disclosure. The problem with this comparison is
evident from the start: the disclosure alleged here lacks the
fundamental element of publicity. And without publicity, there is
no invasion of privacy—which means no harm, at least not one
that is at all similar to that suffered after a public disclosure.
It is no surprise that one element of “public” disclosure is
publicity; the others, for information’s sake, are that the publicity
concerns a matter in the private life of another, that it is highly
offensive to a reasonable person, and that the disclosed information
is not of legitimate public concern. 4 See, e.g., Cox Broad. Corp. v.
Cohn, 420 U.S. 469, 489, 492 (1975). Only a person “who gives
publicity to a matter concerning the private life of another” is
liable. Restatement (Second) of Torts § 652D (Am. L. Inst. 1977)
4 The dissent is incorrect when it asserts that the question we consider here is
the only point up for debate. See Dissenting Op. at 5; see also Hunstein, 17
F.4th at 1041–44 (Tjoflat, J., dissenting); Concurring Op. at 1. But because the
lack of publicity is dispositive, we need not go further.
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(emphasis added). Indeed, the harm at the core of the tort is based
not on the fact that embarrassing information exists, but that the
public knows about it. So without publicity, there can be no public
disclosure. Unlike the near-falsity that was sufficiently close to
defamation in TransUnion—because it gave rise to a similar
reputational harm—communications that are private rather than
public do not engender a closely analogous invasion of privacy. See
TransUnion, 141 S. Ct. at 2209.
Publicity requires far more than what Hunstein has
offered—it does not include just “any communication by the
defendant to a third person.” Restatement (Second) of Torts
§ 652D cmt. a (emphasis added). 5 Instead, it requires that a matter
be “made public, by communicating it to the public at large, or to
so many persons that the matter must be regarded as substantially
certain to become one of public knowledge.” Id. Black’s Law
Dictionary defines “public” as “[o]f, relating to, or involving an
entire community, state, or country” or “[o]pen or available for all
to use, share, or enjoy”—and has defined the concept in similarly
expansive language since its first edition. Public, Black’s Law
5 The “publicity” required for public disclosure differs from the “publication”
required for defamation. Restatement (Second) of Torts § 652D cmt. a.
Publication covers “any communication by the defendant to a third person”;
it is “enough that it is communicated to a single individual other than the one
defamed.” Id. §§ 577 cmt. b., 652D cmt. a. “‘Publicity,’ on the other hand,
means that the matter is made public”—a private disclosure does not suffice.
Id. § 652D cmt. a.
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Dictionary (11th ed. 2019) (emphasis added); see also Public,
Black’s Law Dictionary (1st ed. 1891) (“Pertaining to a state, nation,
or whole community; proceeding from, relating to, or affecting the
whole body of people or an entire community.”). Publicity, in
short, is a well-known and longstanding concept in American law.
Indeed, cases from across the federal and state judicial
systems amply demonstrate the substance of publicity. See, e.g.,
Jenkins v. Dell Publ’g Co., 251 F.2d 447, 449 (3d Cir. 1958)
(publicity in tortious invasion of privacy action assumed to exist
when information was published in a newspaper circulated “where
the plaintiffs lived and were known”); Virgil v. Time, Inc., 527 F.2d
1122, 1127 (9th Cir. 1975) (no publicity if information is disclosed
to a nonpublic audience, unless the disclosure is accompanied by
“consent to publicize”); Gilbert v. Med. Econ. Co., 665 F.2d 305,
307–09 (10th Cir. 1981) (publicity assumed when information was
published in a periodical); Dortch v. Atlanta J. & Atlanta Const.,
261 Ga. 350, 350–52 (1991) (publicity assumed if information is
disclosed to a newspaper); Bodah v. Lakeville Motor Express, Inc.,
663 N.W.2d 550, 557 (Minn. 2003) (“absent dissemination to the
public at large, the claimant’s private persona has not been
violated” and no publicity has occurred (quotation omitted));
Shattuck-Owen v. Snowbird Corp., 16 P.3d 555, 559 (Utah 2000)
(the size of an audience receiving a disclosure is not dispositive
because courts must instead determine “whether the disclosure
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was sufficiently public so as to support a claim for invasion of
privacy” (quotation omitted)). 6
As the Restatement explains, the distinction is between
public and private communication; this is a qualitative inquiry, not
a quantitative one. See Restatement (Second) of Torts § 652D
cmt. a. To be sure, dissemination of information to many people
is one way publicity can occur. But a disclosure to many people
may still be private, or at least not “publicity.” Although the
number of people who receive information may be relevant when
examining the question of publicity, it does not itself reveal
whether a given disclosure qualifies as public. When a trade secret
is communicated to thousands of new employees after a merger,
for example, it does not become public information.7 On the other
6 A careful look at the dissenting opinion’s publicity cases only proves the
point that publicity is an essential element of the common-law tort of public
disclosure. Dissenting Op. at 29 n.9. Fernandez-Wells v. Beauvais, for
instance, recognized that “the extent of the required publicity to support a
claim of public disclosure of private facts varies from jurisdiction to
jurisdiction,” but concluded that even “the most inclusive common-law
definitions of ‘publicity’” were not met where the plaintiff made “no
allegation” that the defendant “could have expected public disclosure to arise”
from his communication. 127 N.M. 487, 489–90 (Ct. App. 1999). And Karch
v. BayBank FSB affirms that publicity is a qualitative, not a quantitative,
matter. 147 N.H. 525, 535 (2002).
7 Whether this example is best explained by the meaning of “publicity” or by
privilege, as the dissent suggests, is immaterial. See Dissenting Op. at 35 n.12.
TransUnion shows why. Both cases it cites describe that a privileged
communication is not a “publication” in the relevant sense—that is, it is not
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20 Opinion of the Court 19-14434
hand, a disclosure to a single person may very well qualify as
publicity—depending on who the person is. Consider the effect of
sharing another person’s private information with an online
personality or a reporter. The effect of a disclosure is what
matters—not the number of people to whom it is made. That is
why, rather than playing a numbers game, we ask whether the
disclosed information “reaches, or is sure to reach, the public.” Id.Hunstein makes no allegations that suggest publicity. His
complaint says that Preferred Collection placed his personal
information “within the possession of an unauthorized third-party”
that “populated some or all of this information into a pre-written
template, printed, and mailed the letter” to Hunstein. The
allegations stop there.
The dissent, in apparent agreement that these facts are
insufficient on their own, indulges what it calls the “eminently
reasonable inference” that “living, breathing, thinking individuals”
must have read and considered the information about Hunstein’s
debt. Dissenting Op. at 10, 34. To further support this “inference,”
the dissent leans on language from Count I of the complaint, which
says that Preferred Collection “disclosed information” about
the kind of publication that would support a defamation action. TransUnion,
141 S. Ct. at 2210 n.6 (citing Chalkley v. Atlanta Coast Line R.R. Co., 150 Va.
301, 326–28 (1928); Mack v. Delta Air Lines, Inc., 639 F. App’x 582, 586 (11th
Cir. 2016) (unpublished)). The distinction the dissent draws is without a
difference.
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19-14434 Opinion of the Court 21
Hunstein’s debt “to the employees of an unauthorized third-party
mail house.” See id. at 31. We do not see how this moves the
needle. It does not say or even suggest that the employees have
read and understood the information. And reading the complaint
as a whole (as we must), the rest of the allegations show that the
disclosure was an electronic transfer between two companies.
Indeed, Hunstein’s own attorney declined to embrace the
dissent’s “eminently reasonable inference”—even with significant
encouragement to do so. He agreed at oral argument that
Hunstein had alleged that employees had “access” to his
information, but not that “anyone read or perceived it.” Oral
Argument at 6:33–7:45. There was an obvious reason for this
approach, which was also conceded at argument: the complaint
was drafted to allege a pure statutory violation, one that was
complete at the moment the lender hit “send” and transmitted the
information to Preferred Collection. Id. at 4:27–4:40; 9:27–9:54.
Though it is now clear (again as the lawyer conceded) that a pure
statutory violation is not enough to establish harm, Hunstein never
sought to replead his case. Id. at 7:29–7:39; 8:48–9:48.
Transmitting information that no one reads or perceives is
not publicity. Contrary to the dissent’s suggestion, we give
Hunstein “the benefit of the doubt”; we simply decline to rewrite
his complaint for him. Dissenting Op. at 37. “We will not imagine
or piece together an injury sufficient to give a plaintiff standing
when it has demonstrated none, and we are powerless to create
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22 Opinion of the Court 19-14434
jurisdiction by embellishing a deficient allegation of injury.”
Muransky, 979 F.3d at 925 (quotations and brackets omitted).
All that to say, nowhere does Hunstein suggest that
Preferred Collection’s communication reached, or was sure to
reach, the public. Quite the opposite—the complaint describes a
disclosure that reached a single intermediary, which then passed
the information back to Hunstein without sharing it more broadly.
That act cannot be said to have a “close relationship” with a
tort which, at its core, requires either actual public disclosure or a
substantial certainty that the disclosed information will reach the
public at large. None of that is present here; again, Hunstein did
not even allege that a single employee ever read or understood the
information about his debt. Under even the most generous reading
of his complaint, one company sent his information to another,
where it was “populated” into a private letter that was sent to his
own home. That is simply not enough.
Hunstein protests that Congress targeted “invasions of
individual privacy” when it passed the Fair Debt Collection
Practices Act. See 15 U.S.C. § 1692(a). We have no quarrel with
him on that front. But even assuming—which we do not—that
Congress was attempting to target the workaday vendor
relationships alleged here, congressional intent does not
automatically transform every arguable invasion of privacy into an
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19-14434 Opinion of the Court 23
actionable, concrete injury.8 As TransUnion explained, courts
have no “freewheeling power to hold defendants accountable for
legal infractions.” TransUnion, 141 S. Ct. at 2205 (quotation
omitted). Because Hunstein has alleged only a legal infraction—a
“bare procedural violation”—and not a concrete harm, we lack
jurisdiction to consider his claim.
The dissent takes issue with our element-for-element
approach. It claims that we relegate Congress to “dutifully
replicating and codifying preexisting common-law causes of
action” and that our approach has no “principled line.” Dissenting
Op. at 27, 14 & n.3. Respectfully, we think that these criticisms are
entirely off-base. The dissent confuses the question of whether this
plaintiff has alleged standing with the question of whether any
plaintiff could allege standing. Our standing inquiry centers on
whether a given plaintiff has pleaded injury—not whether a cause
of action is generally proper. The fact that one plaintiff, Hunstein,
has not pleaded injury under this statute does not show that no one
else can or will. And the dissent’s approach offers no line,
principled or otherwise; the common law analogy collapses if we
can rewrite a traditional tort to exclude an essential element.
8 The Supreme Court has said, for instance, that in the context of defamation,
sending information to “vendors that printed and sent” mailings was not
traditionally recognized “as actionable publication[].” TransUnion, 141 S. Ct.
at 2210 n.6.
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24 Opinion of the Court 19-14434
TransUnion illustrates both points. To begin, that case
shows how different facts can mean that some plaintiffs have
standing while others do not—under the same cause of action.
There, the deciding factor was whether misleading information
had been published about a given person. Here, the deciding factor
is whether information was publicized. In both cases, when an
element is entirely missing from the comparator tort, there is no
injury. Even so, and again in both cases, a substantive cause of
action remains on the books. And any injured party can invoke
that cause of action, so long as the plaintiff pleads an actual harm
that is at least analogous to one that was redressable at common
law.
TransUnion also shows why we cannot convert the tort of
public disclosure into a tort of private disclosure. When making a
comparison to the tort of defamation, it was straightforward for
the Court to expand the common-law element of “false
information” to the analogous category of “misleading
information.” Both inflict the same kind of harm for the same basic
reason; they damage a plaintiff’s reputation with inaccurate
information. So, under the TransUnion analysis, plaintiffs who
suffered reputational harm because of a statutory violation could
bring a lawsuit against those who committed the violation—even
though it would not have qualified as defamation under the
common law.
The same analogy does not hold here. Private disclosure is
not just a less extreme form of public disclosure. Publicity causes
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19-14434 Opinion of the Court 25
a qualitatively different harm, one that is essential to creating the
comparator tort in the first place—having some finite number of
people know (true) details about your life is fundamentally
different than having that information disseminated to the general
public. As the Restatement says, “it is not an invasion of the right
of privacy” to “communicate a fact concerning the plaintiff’s
private life to a single person or even to a small group of persons.”
Restatement (Second) of Torts § 652D cmt. a. “On the other hand,
any publication in a newspaper or a magazine, even of small
circulation, or in a handbill distributed to a large number of
persons, or any broadcast over the radio, or statement made in an
address to a large audience, is sufficient to give publicity.” Id. The
distinction, the Restatement tells us, “is one between private and
public communication.” Id. And when one is substituted for the
other, the comparator tort becomes unrecognizable.9 TransUnion
does not allow for such “analogies.”
Before we close, a few words are necessary in response to
the dissenting opinion’s energetic attempt to manufacture a circuit
split. Dissenting Op. at 17–24. To start, six of the eight cases cited
as embodying the post-TransUnion framework pre-date
TransUnion. But that is really the least of the problems with the
dissent’s analysis. This grab-bag of cases about different alleged
9 One could even say, if using the dissent’s preferred terminology, that false
and misleading statements are different in degree, while public and private
disclosures are different in kind.
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26 Opinion of the Court 19-14434
harms, different common-law analogues, and different statutory
schemes offers no uniform test—much less one we have strayed
from here. And none address the problem we face: a pleading that
completely fails to allege an element essential to the harm set out
as a common-law comparator.
Indeed, the degree-of-harm inquiry so thoroughly endorsed
in the dissent may well be a helpful explanatory tool in other
cases—just not the one we have here. 10 Because Hunstein did not
allege any publicity at all, we cannot analyze the degree of that
non-publicity; as we have explained, the difference between public
and private is qualitative, not quantitative. The dissent, in pressing
its argument, seems to have forgotten its earlier concession that
finding an alleged injury in these pleadings was “on its face” in
tension with TransUnion. Hunstein, 17 F.4th at 1031. TransUnion
provides the path we follow here.
To the extent that we need to build on that approach, it will
have to wait for a case when the plaintiff actually pleads a harm
that is smaller in degree rather than entirely absent. For now,
TransUnion’s guidance is enough. As much as the dissent may
prefer a different approach to standing doctrine, see, e.g., Sierra v.
City of Hallandale Beach, 996 F.3d 1110, 1115–40 (11th Cir. 2021)
10 And perhaps not in the cases cited by the dissent, either—only three of them
even use the word “degree.”
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19-14434 Opinion of the Court 27
(Newsom, J., concurring), this decision (like Muransky before it) is
consistent with the course the Supreme Court has set out.
* * *
One benefit of the comparison we are asked to make with
common-law torts is that it allows us to better understand whether
a plaintiff has suffered a real harm. That is certainly true here. At
bottom, Hunstein is simply no worse off because Preferred
Collection delegated the task of populating data into a form letter
to a mail vendor; the public is not aware of his debt (at least, not
because of Preferred Collection’s disclosure to its vendor). Nor is
it clear, or even likely, that even a single person at the mail vendor
knew about the debt or had any reason—good, bad, or otherwise—
to disclose it to the public if they did. Given the obvious differences
between these facts and the traditional tort of public disclosure, we
find that no concrete harm was suffered here.
“No concrete harm, no standing.” TransUnion, 141 S. Ct. at
2214. Because Hunstein did not have standing, the district court
lacked jurisdiction to consider his claim. We therefore VACATE
the district court’s order and REMAND with instructions to dismiss
the case without prejudice.
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19-14434 PRYOR, C.J., Concurring 1
WILLIAM PRYOR, Chief Judge, joined by TJOFLAT, Circuit Judge,
concurring:
I join the majority opinion in full. I write separately to
identify other reasons why this appeal is “an exercise in simplicity.”
Maj. Op. at 15. The Supreme Court expressly rejected the dissent’s
theory that Hunstein has standing because Preferred disclosed
private information “to the vendors that printed and sent the
mailings that” Hunstein received. See TransUnion LLC v.
Ramirez, 141 S. Ct. 2190, 2210 n.6 (2021); Dissenting Op. at 16 n.4.
And Hunstein’s alleged injury bears little resemblance to the
public-disclosure tort on which the dissent relies. Dissenting Op. at
28–29.
The dissent asserts that “the majority agrees (or at least
doesn’t disagree) that only the element of “publicity” is in dispute.
Id. at 28; see also id. at 4–5. But that assertion is untrue. The three
elements of the traditional invasion-of-privacy harm are absent.
Hunstein’s complaint fails to allege a communication in which
anybody read his private information. See TransUnion, at 2210 &
n.6 (holding that objectionable information not read “does not
harm anyone”). It also fails to allege that his private information
reached the public. See Maj. Op. at 20. And it fails to allege anything
like the kind of “highly offensive” disclosures traditionally
actionable at common law. See RESTATEMENT (SECOND) OF TORTS
§ 652D (AM. L. INST. 1977). This appeal is not remotely “tricky.”
Contra Dissenting Op. at 1.
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2 PRYOR, C.J., Concurring 19-14434
A. The Supreme Court Expressly Rejected the Dissent’s
Disclosure-to-Mail-Vendor Theory.
TransUnion LLC v. Ramirez, 141 S. Ct. 2190, controls this
appeal. To determine whether Hunstein satisfies the concrete-
harm requirement, we ask whether his alleged injury “has a close
relationship to a harm traditionally recognized as providing a basis
for a lawsuit in American courts.” Id. at 2204 (internal quotation
marks omitted). Hunstein must “identif[y] a close historical or
common-law analogue for [his] asserted injury.” Id.Hunstein and the dissent identify public disclosure of private
facts as a common-law analogue. Dissenting Op. at 28. That tort
involves “giv[ing] publicity to a matter concerning the private life
of another” that “would be highly offensive to a reasonable person”
and “is not of legitimate concern to the public.” RESTATEMENT
(SECOND) OF TORTS, supra, § 652D. And the dissent asserts that the
“dissemination of personal information to a [mail vendor’s]
employees” bears a close enough relationship to that tort.
Dissenting Op. at 29.
The Supreme Court in TransUnion expressly rejected the
dissent’s theory. The Court held that “the mere existence of . . .
misleading” information “in a consumer’s internal credit file at
TransUnion [does not] constitute[] a concrete injury.” See 141 S.
Ct. at 2209–10. The Court explained that “[p]ublication is essential
to liability in a suit for defamation.” Id. at 2209 (internal quotation
marks omitted). And if “misleading information sits in a company
database, the plaintiffs’ harm is roughly the same, legally speaking,
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19-14434 PRYOR, C.J., Concurring 3
as if someone wrote a defamatory letter and then stored it in her
desk drawer.” Id. at 2210. No publication means no concrete injury.
See id. The plaintiffs in TransUnion tried to avoid that problem by
deploying the same theory the dissent deploys here. They
“argue[d] that TransUnion ‘published’ the [misleading]
information internally . . . to employees within TransUnion and to
the vendors that printed and sent the mailings that the [plaintiffs]
received.” Id. at 2210 n.6. But the Supreme Court declared that
argument “unavailing.” Id.
The Supreme Court adopted the defendant’s argument
rejecting that theory. It doubted that intra-company disclosures
and disclosures to mail vendors were traditionally “actionable
publications.” Id. It added that the plaintiffs failed to prove that
their private information “was actually read and not merely
processed.” Id. And its bottom-line holding could not have been
clearer: the plaintiffs’ “theory circumvents a fundamental
requirement of an ordinary defamation claim—publication—and
does not bear a sufficiently ‘close relationship’ to the traditional
defamation tort to qualify for Article III standing.” Id.
That holding resolves this appeal. Bare “publication”
requires only that the defamatory information be read by
someone, while “publicity” requires that the information be read
by many. Compare RESTATEMENT (SECOND) OF TORTS, supra,
§ 652D cmt. a (“‘Publication’ . . . includes any communication by
the defendant to a third person.”), with id. (“[I]t is not an invasion
of the right of privacy . . . to communicate a fact concerning the
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4 PRYOR, C.J., Concurring 19-14434
plaintiff’s private life to a single person or even to a small group of
persons.”). All Hunstein alleges is that Preferred “disclosed
information . . . to the employees” of the mail vendor—at best, the
kind of non-actionable publication rejected in TransUnion. See 141
S. Ct. at 2210 n.6. And just as the Supreme Court rejected non-
actionable “publications for the purposes of the tort of
defamation,” id., we must reject non-actionable publications for
purposes of privacy torts, see RESTATEMENT (SECOND) OF TORTS,
supra, § 652D cmt. a, illus. 1 (“A, a creditor, writes a letter to the
employer of B, his debtor, informing him that B owes the debt and
will not pay it. This is not an invasion of B’s privacy . . . .”). So, the
dissent’s publication-to-mail-vendor theory “circumvents a
fundamental requirement of an ordinary [public-disclosure] claim
. . . and does not bear a sufficiently close relationship to the
traditional . . . tort to qualify for Article III standing.” See
TransUnion, 141 S. Ct. at 2210 n.6 (internal quotation marks
omitted).
To be sure, the Supreme Court also held that the plaintiffs’
mail-vendor theory had been forfeited, see id., but its express
rejection of that theory binds us as an alternative holding. The
Supreme Court has made clear that when a court rejects an
argument as unpreserved but then concludes that it is “[i]n any
event . . . unavailing,” see id., the analysis that follows “[i]n any
event” forms an alternative holding. See Sochor v. Florida, 504 U.S.
527, 534 (1992) (internal quotation marks omitted). And
“alternative holdings are not dicta, but instead are as binding as
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19-14434 PRYOR, C.J., Concurring 5
solitary holdings.” Bravo v. United States, 532 F.3d 1154, 1162 (11th
Cir. 2008). When the Supreme Court rejected the mail-vendor
argument for Article III standing as unpreserved, it also
alternatively rejected it as “unavailing.” TransUnion, 141 S. Ct. at
2210 n.6. We are bound by that alternative rationale. See Bravo,
532 F.3d at 1162.
The dissent mentions only in passing that the Supreme
Court “noted” that “intra-company disclosures typically aren’t
‘actionable publications,’ at least for defamation purposes.”
Dissenting Op. at 35 n.12 (quoting TransUnion, 141 S. Ct. at 2210
n.6). That cursory reference conveniently obscures the fact that the
Court rejected a theory from intra-company disclosures and
disclosures to “the [mail] vendors that printed and sent the
mailings,” see TransUnion, 141 S. Ct. at 2210 n.6—exactly what is
alleged here. And the dissent makes no effort to explain why
disclosures to employee agents are relevantly different from
disclosures to non-employee agents in this context. But see
RESTATEMENT (THIRD) OF AGENCY § 1.01 cmt. g (AM. L. INST. 2006)
(“The common law of agency encompasses employment as well as
nonemployment relations.”). In the light of the clarity with which
TransUnion rejected the dissent’s theory, it is a tad rich for the
dissent to accuse the majority of “disregard[ing],” “flout[ing],” and
“contraven[ing] . . . key aspects of” TransUnion. Dissenting Op. 1–
2, 11.
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6 PRYOR, C.J., Concurring 19-14434
B. Hunstein’s Alleged Injury Is Not Remotely Like the Public-
Disclosure Tort.
Even if the Supreme Court had not so clearly rejected the
dissent’s mail-vendor theory, Hunstein’s claim would still fail. The
public-disclosure tort on which the dissent relies is not “a close
historical or common-law analogue for [Hunstein’s] asserted
injury.” TransUnion, 141 S. Ct. at 2204. Hunstein’s complaint lacks
allegations that would support any of the three key elements that
constitute the traditionally actionable invasion-of-privacy harm.
The dissent’s approach would supplant the Supreme Court’s test
with one that “leans more toward a no-match test.” Hunstein v.
Preferred Collection & Mgmt. Servs., Inc., 17 F.4th 1016, 1040 n.2
(11th Cir. 2021) (Tjoflat, J., dissenting) (internal quotation marks
omitted), vacated, 17 F.4th 1103 (11th Cir. 2021). That approach is
foreclosed by TransUnion’s holding: if an element whose presence
is necessary for the plaintiff’s traditionally recognized injury is
absent, there is no concrete injury. TransUnion, 141 S. Ct. at 2209–
10 (holding that there is no concrete injury if misleading
information exists without the “essential” element of publication).
I divide the remaining discussion in two parts. First, I explain
that Hunstein lacks a concrete injury because his complaint failed
to allege that anybody read his private information. Second, I
explain that the private disclosure Hunstein alleges is not one that
the law traditionally recognized as highly offensive.
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19-14434 PRYOR, C.J., Concurring 7
1. Hunstein’s Complaint Fails to Allege that Anybody Read His
Private Information.
The majority ably shows that “Hunstein makes no
allegations that suggest publicity.” Maj. Op. at 20. The complaint
defeats any inference that Hunstein’s private information reached
“the public at large” or was published such that the information
was “substantially certain to become . . . public knowledge.”
RESTATEMENT (SECOND) OF TORTS, supra, § 652D cmt. a. And the
majority correctly explains that “Hunstein did not even allege that
a single employee ever read or understood the information about
his debt.” Maj. Op. at 22. I write to highlight the fact that
TransUnion makes that last point dispositive.
Hunstein failed to allege the relevant sense of
communication. “Publicity” means “communicating [the matter]
to the public at large, or to so many persons that the matter must
be regarded as substantially certain to become one of public
knowledge.” RESTATEMENT (SECOND) OF TORTS, supra, § 652D
cmt. a (emphases added). And “[t]he word ‘communication’ is used
to denote the fact that one person has brought an idea to the
perception of another.” RESTATEMENT OF TORTS § 559 cmt. a.
The lack of any allegation of communication in that sense is
dispositive. The Supreme Court explained that “[t]he mere
presence” of allegedly harmful information “causes no concrete
harm.” TransUnion, 141 S. Ct. at 2209–10. If the information is not
perceived, “the plaintiffs’ harm is roughly the same, legally
speaking, as if someone wrote a defamatory letter and then stored
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8 PRYOR, C.J., Concurring 19-14434
it in [a] desk drawer.” Id. at 2210. “A letter that is not sent does not
harm anyone, no matter how insulting the letter is.” Id. And the
Court reiterated that point when it rejected the dissent’s mail-
vendor theory. Id. at 2210 n.6. Because perception of the
information is a requirement of communication, a plaintiff must
allege “that the document was actually read and not merely
processed.” Id. at 2210 n.6. If that “fundamental requirement” of
the tort is absent, Hunstein’s claim “does not bear a sufficiently
close relationship” to the public-disclosure tort. Id. (internal
quotation marks omitted).
Hunstein nowhere alleges that anyone at the mail vendor
perceived his private information. Maj. Op. at 21–22. At oral
argument, Hunstein’s counsel conceded that Hunstein alleges only
that employees had “access” to his information and that he did “not
allege[] that anyone read or perceived it.” Oral Argument at 6:30–
7:42. Against Hunstein’s own position, the dissent plucks one
allegation out of context. See Dissenting Op. at 27. The complaint
does indeed allege that Preferred “disclosed information . . . to the
employees” of the mail vendor. So, the dissent infers that “living,
breathing, thinking individuals” read the information. Dissenting
Op. at 34. And the dissent cannot imagine “what other inference
we could draw from that allegation.” Id. The dissent’s lack of
imagination results from ignoring other allegations that explain the
kind of disclosure that Hunstein alleges.
The dissent ignores specific allegations that clarify the
general one it plucks out of context. The complaint alleges that
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19-14434 PRYOR, C.J., Concurring 9
“Preferred disclosed to the mail house” the information and that
“[t]he mail house then populated some or all of this information
into a pre-written template, printed, and mailed the letter” to
Hunstein. (Emphasis added.) The complaint described the nature
of the “communication” and the “disclosure” as the bare electronic
conveyance of information “to a third-party.” “These specific
allegations of what the [disclosure] consisted of govern over the
general allegation that there was [disclosure].” See SA Palm Beach,
LLC v. Certain Underwriters at Lloyd’s London, 32 F.4th 1347,
1362 (11th Cir. 2022). The dissent fails to mention the specific
allegations that defeat its inference. But see id. (“[T]aking the
allegations of a complaint as true does not require us to ignore
specific factual details of the pleading in favor of general or
conclusory allegations.” (internal quotation marks omitted)). So
Preferred did indeed disclose information to the mail vendor’s
agents, but the complaint describes the same automatic process
that the Supreme Court explained does not constitute an injury.
See TransUnion, 141 S. Ct. at 2210 n.6 (requiring that “the
document was actually read and not merely processed ” (emphasis
added)).
TransUnion’s rule is simple: no communication, no
concrete injury. Id. at 2210 & n.6. Hunstein failed to allege
communication. We cannot speculate for Hunstein that someone
read information that was “populated . . . into a pre-written
template” to say otherwise. See Muransky v. Godiva Chocolatier,
Inc., 979 F.3d 917, 925 (11th Cir. 2020) (en banc) (“[W]e are
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10 PRYOR, C.J., Concurring 19-14434
powerless to create jurisdiction by embellishing a deficient
allegation of injury.” (internal quotation marks omitted)). It
follows that the complaint fails to allege a concrete injury.
2. Hunstein’s Complaint Fails to Allege a Highly Offensive
Disclosure.
The bare communication of private information to another
is not “a harm traditionally recognized as providing a basis for a
lawsuit in American courts.” TransUnion, 141 S. Ct. at 2204
(internal quotation marks omitted). Taking personal offense has
long been insufficient to constitute a legal injury. See id. at 2210.
For example, communicating defamatory information to the
plaintiff alone was not actionable in tort. See THEODORE F. T.
PLUCKNETT, A CONCISE HISTORY OF THE COMMON LAW 496 (5th ed.
1956) (explaining that “[p]ublication to a third party was clearly
necessary, for in no other way could damage result ” (emphasis
added)). Moreover, “[t]he law is not for the protection of the
hypersensitive, and all of us must, to some reasonable extent, lead
lives exposed to the public gaze.” W. PAGE KEETON ET AL., PROSSER
& KEETON ON THE LAW OF TORTS § 117, at 856 (5th ed. 1984). For
that reason, the public-disclosure tort requires that the publicity
given to private information be “of a kind highly offensive to the
ordinary reasonable man.” RESTATEMENT (SECOND) OF TORTS,
supra, § 652D cmt. c (emphasis added).
Consistent with that history, personal offense alone is not a
concrete injury. See TransUnion, 141 S. Ct. at 2209–10. “[T]he
Supreme Court has long rejected allegations of offense, fear, and
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19-14434 PRYOR, C.J., Concurring 11
stigma as sufficient to establish standing.” Kondrat’yev v. City of
Pensacola, 949 F.3d 1319, 1337 (11th Cir. 2020) (Newsom, J.,
concurring). Some asserted injuries are “too trivial to cause harm,”
Strubel v. Comenity Bank, 842 F.3d 181, 190 (2d Cir. 2016) (internal
quotation marks omitted), such as “the dissemination of an
incorrect zip code,” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1550
(2016). Because mere insult was traditionally insufficient in tort, the
Supreme Court has held that taking personal offense to being
labeled a potential terrorist is not enough unless that misleading
information is communicated to someone else. See TransUnion,
141 S. Ct. at 2209–10. So, if Hunstein fails to allege conduct that is
offensive because it tends to cause a traditionally actionable harm,
his asserted injury is not concrete.
Although a plaintiff need not satisfy all common-law
elements precisely, Hunstein fails to allege anything remotely like
the kind of offensive conduct for which the law traditionally
provided a remedy. Contra Dissenting Op. at 28 (“the majority
agrees (or at least doesn’t disagree) that Hunstein’s allegations
satisfy the highly-offensive . . . element[].”). The complaint alleges
that “Preferred disclosed to the mail house” Hunstein’s “son’s
name” and the fact that Hunstein owed $2,449.23 for “his son’s
medical treatment.” Hunstein is not suing on behalf of his son, so
he lacks standing to complain about the publication of his son’s
name and his status as a patient. See Spokeo, 136 S. Ct. at 1548(explaining that, “[f]or an injury to be particularized, it must affect
the plaintiff in a personal and individual way” such that he
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12 PRYOR, C.J., Concurring 19-14434
“personally has suffered some actual or threatened injury” (internal
quotation marks omitted)). But even setting that obstacle to the
side, the collection notice that Hunstein attached to his complaint
contains no information about “a person’s medical condition.” See
Wolfe v. Schaefer, 619 F.3d 782, 784 (7th Cir. 2010); contra
Dissenting Op. at 35 n.12. And it contains little personal
information: it identifies only the patient’s name, the debtor’s
name, and the amount due.
Publishing that kind of information to another has never
been “a harm traditionally recognized as providing a basis for a
lawsuit.” See TransUnion, 141 S. Ct. at 2204 (internal quotation
marks omitted). Telling a third person another’s name is not the
kind of offense for which the law has ever provided a remedy. It is
hard to see how being labeled a “patient” constitutes a concrete
injury. If a person walks out of a doctor’s office, passersby could
infer that he is a patient. If a passerby then tells another that he saw
the person walk out of the doctor’s office, did the person suffer a
concrete injury? Cf. Davis v. Gen. Fin. & Thrift Corp., 57 S.E.2d
225, 227 (Ga. Ct. App. 1950) (explaining that “the protection
afforded by the law to the right of privacy must be restricted to
ordinary sensibilities and not to supersensitiveness or agoraphobia”
and that “[t]here are some shocks, inconveniences and annoyances
which members of society in the nature of things must absorb
without the right of redress” (internal quotation marks omitted)).
Hunstein might find that label offensive or insulting. But see
RESTATEMENT (SECOND) OF TORTS § 652D cmt. c (“[M]inor and
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19-14434 PRYOR, C.J., Concurring 13
moderate annoyance, as for example through public disclosure of
the fact that the plaintiff has clumsily fallen downstairs and broken
his ankle, is not sufficient . . . .”). But more is needed to allege a
concrete injury. See TransUnion, 141 S. Ct. at 2209–10.
The same is true of identifying the debtor and his debt to
make a reasonable effort to collect. “Many American courts did not
traditionally recognize,” id. at 2210 n.6, that reasonable debt-
collection efforts were within the harms for which the law
provided a remedy. E.g., Housh v. Peth, 133 N.E.2d 340, 344 (Ohio
1956) (explaining that the “law in nowise prevents a creditor from
making a reasonable effort to collect a debt”). For that reason, the
law did not regard as a harmful invasion of privacy the publication
of debt-related information to the debtor’s employer.
RESTATEMENT (SECOND) OF TORTS § 652D cmt. a, illus. 1 (“A, a
creditor, writes a letter to the employer of B, his debtor, informing
him that B owes the debt and will not pay it. This is not an invasion
of B’s privacy . . . .” (emphasis added)). Likewise for publishing
debt-related information to the employees of a telegraph company.
See, e.g., Davis, 57 S.E.2d at 227 (“[A] publication to a few
employees of a telegraph company who are not alleged to be
acquainted with the alleged injured party would not offend the
sensibilities of a person who has gone into debt and subjected
himself to the standard communications of a civilized society.”).
Because Hunstein fails to allege offensive conduct that “cause[s]
the sort of reputational harm remediated at the common law,”
Maj. Op. at 4, his theory “does not bear a sufficiently close
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14 PRYOR, C.J., Concurring 19-14434
relationship to the traditional . . . tort,” see TransUnion, 141 S. Ct.
at 2210 n.6 (internal quotation marks omitted).
To be sure, “Congress may elevate to the status of legally
cognizable injuries concrete, de facto injuries that were previously
inadequate in law.” See id. at 2204–05 (internal quotation marks
omitted). Congress could, for example, make actionable a
publication that is offensive because of its tendency to cause
reputational harm even though the common law did not make that
publication actionable. See id. at 2209–10. And Congress need not
condition providing a remedy for reputational harm on the degree
of offensiveness the common law required.
But personal offense, by itself, is not a de facto injury. And
Hunstein’s allegation that Preferred injured him by disclosing to a
mail house that he has a medical bill constitutes mere personal
offense; that conduct bears no relationship to traditionally
recognized harms. For that reason, Hunstein failed to allege
anything “remotely harmful.” See id. at 2204–05 (internal
quotation marks omitted).
Make no mistake—this appeal is an exercise in simplicity in
more ways than one. TransUnion expressly rejected the dissent’s
publication-to-mail-vendor theory. Id. The dissent obscures that
fact by asserting that the majority adopts a perfect-match test. See
Dissenting Op. at 13, 27-28. Not true. We apply TransUnion’s
simple rule that an element must be present if that element is
necessary for the presence of the harm that was traditionally
actionable. See TransUnion, 141 S. Ct. at 2209–10 (holding that
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19-14434 PRYOR, C.J., Concurring 15
publication is necessary for there to be a concrete injury but that
falsity is not because publication of misleading information can also
cause the same kind of significant reputational harm traditionally
actionable as defamation); Maj. Op. 3, 13–14, 17. Hunstein fails to
allege that anyone read his private information, that it reached the
public, or that the disclosure caused anything more than personal
offense. Supreme Court precedent requires us to reject the dissent’s
“no-match” test. Hunstein, 17 F.4th at 1040 n.2 (Tjoflat, J.,
dissenting) (internal quotation marks omitted).
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19-14434 Newsom, J., Dissenting 1
NEWSOM, Circuit Judge, joined by JORDAN, ROSENBAUM, and JILL
PRYOR, Circuit Judges, dissenting:
The majority insists that deciding this case is “an exercise in
simplicity.” Maj. Op. at 15. Boy, I disagree—I think it’s actually (to
use another of the majority’s terms) pretty “tricky.” Id. at 2. And
to be honest, I think the majority has made the case “simpl[e]” only
by whistling past its complexities and decreeing a conclusion rather
than grappling with the subtleties of the standing issue that it
presents. Today’s majority faults the now-vacated panel opinion
for the “energy” that it expended in its standing analysis. Id. at 6.
The majority, it seems to me, expends far too little.
Boiled to its essence, the majority’s analysis proceeds as
follows: (1) Richard Hunstein alleged nothing more than that a
debt-collector, Preferred Collections & Management Services, Inc.,
disclosed his private information to a third-party mail vendor,
CompuMail Information Services, Inc.; (2) the common-law
comparator under which Hunstein is traveling in his effort to
establish Article III standing—the sub-species of the invasion-of-
privacy tort known as “public disclosure of private facts”—
requires, as one of its “essential” elements, that the defendant have
“give[n] publicity to a matter concerning the private life” of the
plaintiff; (3) because Preferred’s disclosure of Hunstein’s
information was insufficiently public to satisfy that tort’s
“publicity” element, the common-law analogy—and with it,
Hunstein’s standing—fails.
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2 Newsom, J., Dissenting 19-14434
The majority’s conclusion is the product of several
interrelated errors. First, and perhaps most ironically, the
majority’s analysis disregards—and ultimately contravenes—key
aspects of the very decisions on which it purports to principally
rely, Spokeo, Inc. v. Robins, 578 U.S. 330 (2016), and TransUnion
LLC v. Ramirez, 141 S. Ct. 2190 (2021). Second, the majority
studiously ignores the analytical framework that both parties and
at least seven other circuits agree should govern the standing
inquiry in the wake of Spokeo and TransUnion. (Nor, tellingly,
does the majority offer any meaningful alternative.) And finally,
when the rubber meets the road, the majority misstates the explicit
allegations of Hunstein’s complaint in favor of its own anodyne
paraphrase.
For these reasons, and because under the proper—and
heretofore agreed-upon—analysis, Hunstein has alleged sufficient
facts to support Article III standing at the motion-to-dismiss stage,
I respectfully dissent.
I
Before jumping into my critique, a bit of table-setting. First,
let me briefly recap the essential facts: Richard Hunstein incurred
a debt to Johns Hopkins All Children’s Hospital arising out of his
minor son’s medical treatment. The hospital assigned the debt to
Preferred Collections & Management Services, Inc. for collection.
Preferred in turn hired CompuMail Information Services, Inc., a
California-based commercial mail vendor, to handle the collection.
Preferred electronically transmitted to CompuMail—and, in
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19-14434 Newsom, J., Dissenting 3
particular, the complaint says, to CompuMail’s “employees”—
“sensitive medical information” about Hunstein, including not
only (1) his status as a debtor and (2) the exact balance of his debt
and the entity to which it was owed, but also (3) that the debt
concerned his son’s medical treatment and (4) his son’s name.
CompuMail used that information to generate and send a dunning
letter to Hunstein.
Hunstein filed a complaint, asserting, as relevant here, that
“when it disclosed information about [his] purported . . . debt to
the employees of an unauthorized third-party mail house,” Pl.’s
Compl. at 5, Preferred violated a provision of the Fair Debt
Collection Practices Act that generally prohibits debt collectors
from communicating consumers’ personal information to third
parties “in connection with the collection of any debt,” 15 U.S.C.
§ 1692c(b). The district court dismissed Hunstein’s action for
failure to state a claim. Hunstein appealed, and a three-judge panel
on which I served requested supplemental briefing on the
threshold question whether he had Article III standing to sue. The
panel twice concluded that he did—both initially, before the
Supreme Court issued its decision in TransUnion, and then again
thereafter, in an amended opinion and over a dissent—and
reversed the district court’s dismissal. See Hunstein v. Preferred
Collection & Mgmt. Servs., Inc., 17 F.4th 1016, 1024 (11th Cir.
2021). The en banc court then vacated the panel’s opinion to
reconsider Hunstein’s standing. See 17 F.4th 1103 (11th Cir. 2021).
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4 Newsom, J., Dissenting 19-14434
Second, let me narrow the scope of the dispute. There are,
happily, more than a few things on which the majority and I agree:
1. We agree, for instance, that pleading “[a] ‘bare statutory
violation’ is not enough,” in and of itself, to establish a
“concrete” injury for Article III standing purposes. Maj. Op.
at 10 (quoting Muransky v. Godiva Chocolatier, Inc., 979
F.3d 917, 936 (11th Cir. 2020) (en banc)). So the mere fact
that Hunstein alleges that Preferred violated the FDCPA
when it disclosed his private information to CompuMail’s
employees does not alone suffice.
2. We agree that in determining the concreteness of a plaintiff’s
injury resulting from a statutory violation, the Supreme
Court has instructed us to focus on whether that injury has
a “close relationship” to “a harm ‘traditionally’ recognized
as providing a basis for a lawsuit in American courts.” Maj.
Op. at 11 (quoting TransUnion, 141 S. Ct. at 2204).
3. We also agree that when comparing a statutory harm to a
common-law analogue for the purpose of conducting the
“close relationship” analysis, the Court has further
instructed us not to require an “exact duplicate.” Maj. Op.
at 8 (quoting TransUnion, 141 S. Ct. at 2209). Instead, as the
majority here rightly recognizes, we should ask only
whether the alleged statutory harm is “close enough” to a
common-law comparator. Id. at 13.
4. We agree that in this particular case the applicable common-
law comparator is the tort known as “public disclosure of
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19-14434 Newsom, J., Dissenting 5
private facts.” Maj. Op. at 4; see also TransUnion, 141 S. Ct.
at 2204 (recognizing “disclosure of private information” as a
valid Article III analogue).
5. Finally, the majority and I seem to agree (or at least not to
disagree) that Hunstein’s allegations satisfy two of that tort’s
three elements—namely, that Preferred’s disclosure of what
he calls “sensitive medical information” concerning his
young son’s treatment “(a) would be highly offensive to a
reasonable person, and (b) is not of legitimate concern to the
public.” Restatement (Second) of Torts § 652D (1977); see
also Maj. Op. at 16–17 & n.5 (acknowledging those elements
only “for information’s sake”). 1
The majority identifies a single—and in its view, fatal—
“problem” with Hunstein’s theory of standing: The harm that he
alleges, it says, “lacks a necessary element of the comparator tort—
1All the majority can bring itself to say about the offense and public-concern
elements, without any explanation whatsoever, is that they are—or might
be?—“up for debate.” Maj. Op. at 16 n.4 (citing Hunstein, 17 F.4th at 1041–44
(Tjoflat, J., dissenting). Because the majority doesn’t “go further,” id., I won’t
either, except to point readers to the panel’s fairly detailed investigation of
those two elements. For its part, the concurring opinion confidently asserts
that all “three elements . . . are absent” from Hunstein’s case, Pryor
Concurring Op. at 1, only to omit any discussion of the public-concern
element, see generally id. On the question whether the disclosure of
Hunstein’s private medical-related information here was, for Article III
purposes, close enough to the kind of disclosure that would be “highly
offensive” to the ordinary person, we’ll just have to agree to disagree.
Compare Hunstein, 17 F.4th at 1029 n.8, with Pryor Concurring Op. at 9–14.
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6 Newsom, J., Dissenting 19-14434
the requirement that the disclosure be public.” Maj. Op. at 3; see
also Restatement (Second) of Torts § 652D (“One who gives
publicity to a matter concerning the private life of another is
subject to liability . . . .” (emphasis added)). “[W]ithout publicity,”
the majority continues, “a disclosure cannot possibly cause the sort
of reputational harm remediated at the common law.” Maj. Op. at
4. And because “the elements do not match up,” the majority
holds, Hunstein can’t demonstrate Article III standing. Id. at 3.
The dispute here, therefore, centers on one element of a
three-element tort—and, in particular, on whether Hunstein’s
allegations concerning that tort’s “publicity” element, though not
an “exact duplicate,” are “close enough” for Article III purposes.
The majority and I disagree about how close is “close enough,”
about how the “close enough” question should be evaluated, and
ultimately, about whether Hunstein’s publicity-related allegations
satisfy the “close enough” standard. That disagreement is narrow,
but it is profound.
II
As I’ve said, the majority’s conclusion here—that Hunstein
lacks Article III standing because he hasn’t alleged a sufficiently
“public” disclosure of his private information—rests on three
interrelated errors. First, the majority disregards key aspects of the
Supreme Court’s decisions in Spokeo and, even more so,
TransUnion. Second, the majority ignores an entire corpus of
circuit-level precedent that has grown up in the wake of Spokeo
and TransUnion as a means of evaluating whether a plaintiff’s
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19-14434 Newsom, J., Dissenting 7
statutory-harm allegations bear a “close relationship” to a
common-law analogue. And finally, as a capper, the majority
whitewashes the explicit allegations of Hunstein’s complaint.
Let me explain.
A
The majority leans heavily on the Supreme Court’s
decisions in Spokeo and, especially, TransUnion, invoking the
former almost 20 times, the latter more than 40. To be sure,
TransUnion, in particular, looms large here, and warrants a close
look—closer, I fear, than the majority gives it. As I will explain,
although the majority insists that TransUnion supports (even
requires) its conclusion, it conspicuously disregards features of that
decision that, in fact, fatally undermine its position.
In TransUnion, a credit-reporting agency compiled personal
and financial information about individual consumers, created
reports, and then sold those reports to third parties. See 141 S. Ct.
at 2201. TransUnion, the agency, introduced an add-on product,
OFAC Name Screen Alert, which compared an individual
consumer’s name against a list of individuals deemed a threat to
national security by the Treasury Department’s Office of Foreign
Assets Control and placed an alert on the credit report of any
consumer whose name was a potential match. See id. A class of
consumers with OFAC alerts on their accounts sued TransUnion
under the Fair Credit Reporting Act, which they alleged it had
violated by failing to use reasonable procedures to assure the
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8 Newsom, J., Dissenting 19-14434
“maximum possible accuracy” of their credit files. See id. at 2202.
As relevant here, the question for the Supreme Court was whether
the alleged statutory violations constituted Article-III-qualifying
concrete injuries.
Echoing its earlier decision in Spokeo, the Court in
TransUnion emphasized that in determining concreteness, “courts
should assess whether the alleged injury to the plaintiff has a ‘close
relationship’ to a harm ‘traditionally’ recognized as providing a
basis for a lawsuit in American courts.” Id. at 2204 (quoting
Spokeo, 578 U.S. at 341). “That inquiry,” the Court continued,
“asks whether plaintiffs have identified a close historical or
common-law analogue for their asserted injury.” Id. And while
the Court firmly rejected any suggestion that “federal courts [may]
loosen Article III based on contemporary, evolving beliefs about
what kinds of suits should be heard,” it also cautioned that Spokeo’s
focus on “close” common-law analogues “does not require an exact
duplicate in American history and tradition.” Id. (emphasis added);
accord, e.g., Muransky, 979 F.3d at 926 (noting that the “fit
between a new statute and a pedigreed common-law cause of
action need not be perfect”).
The answer to the “close relationship” question in the case
before it, the TransUnion Court held, depended on the particular
class members’ allegations. Those who presented evidence that
their credit reports had been disseminated to third parties
established a concrete injury bearing the requisite relationship to
the common-law tort of defamation, and thus concrete injury. See
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19-14434 Newsom, J., Dissenting 9
141 S. Ct. at 2208–13. Conversely, those whose credit reports had
not been provided to third parties did not. See id. In the Court’s
words, the latter group of plaintiffs suffered no concrete harm
because the inaccurate information “s[at] in [TransUnion’s
internal] database” and was never “disclosed to a third party.” Id.
at 2210.
The majority’s TransUnion-related errors are twofold. First,
the majority oversimplifies and overplays the aspects of
TransUnion that it likes, ignoring critical distinctions between that
case and this one. Second, and worse, the majority disregards the
aspects of the decision that it doesn’t like and that, properly
understood, subvert its analysis and conclusion. I’ll take those
errors in turn.
1
The majority takes the TransUnion Court’s denial of
standing to the plaintiffs whose reports hadn’t been disclosed to
third parties to dictate the outcome of this case. See Maj. Op. at
14. But TransUnion’s holding to that effect is distinguishable in
two significant respects.
First, it arose in a dramatically different procedural posture.
The case in TransUnion proceeded beyond the pleadings and
summary judgment and went all the way to a jury; accordingly, the
Supreme Court required that “the specific facts set forth by the
plaintiff to support standing . . . be supported adequately by the
evidence adduced at trial.” 141 S. Ct. at 2208 (quoting Lujan v.
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10 Newsom, J., Dissenting 19-14434
Defenders of Wildlife, 504 U.S. 555, 561 (1992)). Hunstein’s case,
by contrast, never got past the motion-to-dismiss stage, at which,
of course, we must accept the facts alleged in his complaint as true
and draw all reasonable inferences in his favor. See, e.g., K.T. v.
Royal Caribbean Cruises, Ltd., 931 F.3d 1041, 1043 (11th Cir. 2019).
We thus have no “evidence” by which to evaluate whether, in the
majority’s words, anyone at CompuMail “ever read or understood
the information about [Hunstein’s] debt.” Maj. Op. at 22; see also
TransUnion, 141 S. Ct. at 2210 n.6 (faulting the plaintiffs there for
failing to adduce “evidence” that their information “was actually
read and not merely processed”). What we do have, it seems to
me, are (1) Hunstein’s explicit allegation that Preferred “disclosed”
his son’s “sensitive medical information” to CompuMail’s
“employees,” and (2) the eminently reasonable inference that the
flesh-and-blood individuals to whom that information was
disclosed read it. (I’ll have much more to say below about the
significance of Hunstein’s “employees” allegation—and the
majority’s refusal to meaningfully engage it. See infra at 25–31.)
Second, the plaintiffs in TransUnion to whom the Supreme
Court denied standing had utterly and completely failed—even
following a full-blown trial—to produce any evidence of any
disclosure of any sort. As the majority here accurately summarizes
the facts of TransUnion, the OFAC alerts about which those
plaintiffs complained “had not been shared with any creditors.”
Maj. Op. at 13. Rather, the alerts had remained safely tucked away
“in [the plaintiffs’] internal credit file[s]” at the credit-reporting
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19-14434 Newsom, J., Dissenting 11
agency, 141 S. Ct. at 2209, and were thus “kept private,” Maj. Op.
at 14. Accordingly, not only had the plaintiffs there failed to
demonstrate “publication”—an element of the defamation claim
they sought to use as a comparator—they had failed to
demonstrate anything like it. That’s not true here. Hunstein
alleged a disclosure to a third party and its employees—the
majority just thinks that disclosure was insufficiently “public.” For
reasons I’ll explain, while Hunstein might not have alleged that
Preferred disseminated his private information broadly enough to
satisfy the public-disclosure tort’s “publicity” element if he were
seeking to prove that claim on the merits, he most certainly alleged
a dissemination that, on a proper understanding, was “close
enough” to satisfy Article III.
2
Not only does the majority paper over key distinctions
between TransUnion and this case, it actually flouts TransUnion in
two important respects—one general and the other quite specific.
As a general matter, the majority fundamentally
misunderstands the “close relationship” standard that the
TransUnion Court reiterated. Although it dutifully recites the
Supreme Court’s reassurance that an intangible-injury plaintiff
needn’t “exact[ly] duplicate” a common-law cause of action to
demonstrate Article III standing, the majority nonetheless insists
that all “element[s] ‘essential to liability’ under the comparator
tort” must be present. Maj. Op. at 8 (quoting TransUnion, 141 S.
Ct. at 2209); see also, e.g., id. at 3 (noting that “the elements [must]
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12 Newsom, J., Dissenting 19-14434
match up”). I fail to understand—and the majority never
explains—how its jot-for-jot, element-for-element requirement
isn’t just a dressed-up version of the very “exact duplicate” standard
that the Supreme Court has flatly disavowed. After all, if the
majority is going to require a plaintiff like Hunstein to satisfy every
element of a common-law claim—without any accommodation at
all—how isn’t it, in practice, requiring an “exact duplicate”? Under
what circumstances could a plaintiff meet every element of a
common-law cause of action without having “exact[ly]
duplicate[d]” the common-law claim? So far as I can tell, that’s an
empty set.
To be clear, it’s no answer to say—as the majority vaguely
suggests—that its element-for-element requirement complies with
the Supreme Court’s “exact duplicate” prohibition because it
applies only to those elements that are “essential to liability.” Maj.
Op. at 8 (quoting TransUnion, 141 S. Ct. at 2209); see also, e.g., id.
at 15 (holding that a plaintiff must allege every “element essential
to” its “historical comparator”); id. at 19 n.6 (“essential element”);
id. at 23 (“essential element”); id. at 25 (“essential”); id. at 26
(“essential”). What elements of a common-law claim aren’t
“essential to liability”? Isn’t essentiality what makes an “element”
an element? Black’s confirms what we already know: An
“element” is “[a] constituent part of a claim that must be proved
for the claim to succeed.” Element, Black’s Law Dictionary (11th
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19-14434 Newsom, J., Dissenting 13
ed. 2019) (emphasis added). 2 I see no way around the conclusion
that the majority’s rigid element-for-element standard effectively
reimposes the very “exact duplicate” test that the TransUnion
Court expressly renounced.
To be clear, though, the majority’s decision doesn’t just
contravene TransUnion’s language, it contravenes TransUnion’s
holding. The credit-reporting agency in TransUnion argued that
even those plaintiffs whose reports were disclosed to third parties
didn’t suffer a harm with a sufficiently “close relationship” to the
common-law tort of defamation because, it said, the OFAC alerts
on the disseminated credit reports were only “misleading”—not
“literally false,” as proof of defamation requires. See 141 S. Ct. at
2209 (citing Restatement (Second) of Torts § 558); see also
Defamation, Black’s Law Dictionary (defining “defamation” to
require “a false statement”). The Supreme Court rejected the
agency’s perfect-match contention, emphasizing—again—that
“[i]n looking to whether a plaintiff’s asserted harm has a ‘close
relationship’ to a harm traditionally recognized as providing a basis
for a lawsuit in American courts, we do not require an exact
duplicate.” TransUnion, 141 S. Ct. at 2209; see also id. at 2204
(“Spokeo does not require an exact duplicate in American history
2 Think about it this way: Among (1) duty, (2) breach, (3) causation, and
(4) damages, which isn’t “essential” to a tort plaintiff’s negligence claim? Can
a fraud plaintiff fail to show either (1) a false statement, (2) materiality,
(3) reasonable reliance, (4) causation, or (5) damages and yet still expect to
recover?
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14 Newsom, J., Dissenting 19-14434
and tradition.”). Despite the absence of any proof of actual falsity—
an element all accepted as essential to a successful defamation
claim—the Court found that the plaintiffs whose reports had been
disseminated had Article III standing. Id. at 2209.
The majority acknowledges, as it must, that the Court in
TransUnion held that “for purposes of comparing the class
members’ alleged harms to defamation . . . misleading information
was close enough, element-wise, to false information.” Maj. Op.
at 13 (emphasis added); see also id. at 14 (noting the TransUnion
Court’s conclusion that “misleading information—like false
information—can lead to unfair reputational harm if publicized”).
Conspicuously, though, the majority never convincingly explains
why the showing of near falsity in TransUnion (i.e.,
misleadingness) was “close enough” to support standing by
analogy to a defamation claim, and yet the allegation of near
publicity here (i.e., dissemination to an as-yet-unknown number of
employees) is not “close enough” to support standing by analogy
to a public-disclosure-of-private-facts claim. I fail to see a principled
line between those two, and the majority certainly never
successfully articulates one.3
3 The majority takes two whacks at it, neither of which persuades me. First,
it repeatedly says that, in this case, Hunstein is “completely missing” an
element of his common-law analogue. Maj. Op. at 15; see also, e.g., id. at 24
(“entirely missing”). But of course, in exactly the same way, the relevant
plaintiffs in TransUnion were “completely missing” the key element of falsity,
and yet the Supreme Court sanctioned their standing. And in any event, the
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19-14434 Newsom, J., Dissenting 15
* * *
In sum, then, the majority overreads TransUnion’s denial of
standing to a subset of the claimants there at the expense of defying
its mandate that courts shouldn’t require plaintiffs to “exact[ly]
duplicate” common-law causes of action. The majority thus
purports to follow TransUnion, but ends up spurning it. As I’ll
explain next, by insisting on a rigid, anti-TransUnion element-for-
element test, the majority departs from the heretofore unanimous
view among the circuits about how to implement the “close
majority’s assertion here that publicity is “completely missing” from
Hunstein’s case is just that—an assertion. Quoting the Restatement, the
majority says, for instance, that only a communication of private information
to “a large number of persons” will suffice for public-disclosure purposes;
dissemination to “a single person or even to a small group of persons” won’t
cut it. Id. at 25 (quoting Restatement (Second) of Torts § 652D cmt. a). True
enough, but—and I’ll have more to say about this shortly—from where is the
majority drawing its critical “single person or . . . small group” premise?
Certainly, as I’ll explain, not from Hunstein’s complaint. See infra at 29–35.
Second, and relatedly, the majority decrees—just announces, as if it
were a principle of the natural law—that disclosure of one’s information to a
“small group” is “not just a less extreme form” of more widespread
dissemination, but, rather, is “fundamentally different” and thus gives rise to
a “qualitatively different harm.” Maj. Op. at 25. Respectfully, all the majority
offers in support of that conclusion is its own say so—just words. It seems to
me self-evident that a disclosure to a small group (again, even if that’s all we’re
dealing with here) is precisely a “less extreme form” of a disclosure to a larger
group. The majority’s insistence on a neat, clean, and bright line between
“small” and “large”—and thus, it says, between “private” and “public”—blinks
reality.
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16 Newsom, J., Dissenting 19-14434
relationship” standard. And in doing so, the majority denies
Congress any breathing space in which to recognize judicially
enforceable rights that didn’t exist at common law. 4
4 Before moving on, a brief response to the concurring opinion, which
confidently states (and restates and restates) that “[t]he Supreme Court in
TransUnion expressly rejected” my standing “theory” when it observed in a
footnote that the plaintiffs there had abandoned an alternative argument.
Pryor Concurring Op. at 2; see TransUnion, 141 S. Ct. at 2210 n.6.
Respectfully, I think my concurring colleague is overplaying his hand. The
Supreme Court didn’t “expressly” (or “clearly”) do much of anything relevant
to this appeal in that footnote, Pryor Concurring Op. at 1, 2, 5, 14, let alone
anticipatorily reject my “theory.” Before saying anything of substance about
the “new argument” that the plaintiffs there were pressing “[f]or the first time”
before it, the TransUnion Court held that the argument was “forfeited.”
TransUnion, 141 S. Ct. at 2210 n.6. It then went on to observe—in what the
now-vacated panel opinion explained was dictum, see Hunstein, 17 F.4th at
1031—that the plaintiffs’ argument was “unavailing” for two reasons, both of
which caution against overreading the footnote. First, the Court tentatively
observed that “disclosures to printing vendors” at common law weren’t
“necessarily . . . actionable publications.” TransUnion, 141 S. Ct. at 2210 n.6
(emphasis added). Today’s concurrence conspicuously omits the limiting
adverb from its multiple restatements of the Supreme Court’s language.
Second, the TransUnion Court emphasized that the plaintiffs there, who had
the benefit of a full trial, had failed to adduce any “evidence” that the
information about which they were complaining “was actually read and not
merely processed.” Id. Here, of course, because Hunstein was thrown out at
the pleadings stage, he never had the opportunity to develop evidence to
support his allegations.
Needless to say, if I thought the Supreme Court’s diffident language—
which was buried in footnoted dictum about a forfeited issue, appeared in a
case in a materially different procedural posture, and addressed a different
common-law analogue—“expressly” rejected the theory of standing that I’ve
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19-14434 Newsom, J., Dissenting 17
B
On any reading, TransUnion makes two things absolutely
clear: On the one hand, Congress “may not simply enact an injury
into existence, using its lawmaking power to transform something
that is not remotely harmful into something that is.” 141 S. Ct. at
2205 (quotation omitted). Accordingly, the Court reiterated its
earlier rejection of “the proposition that ‘a plaintiff automatically
satisfies the injury-in-fact requirement whenever a statute grants a
person a statutory right and purports to authorize that person to
sue to vindicate that right.’” Id. (quoting Spokeo, 578 U.S. at 341). 5
On the other hand—as just explained—the Court reaffirmed that
Congress has some role in recognizing new judicially enforceable
rights; it is not limited to replicating and codifying preexisting
put forward here, I would happily stand down. But I just don’t think it did.
To the contrary, for reasons I’ve explained in text, TransUnion’s above-the-
line discussion, and holding, reaffirm my view that Hunstein’s allegations are
sufficient to confer Article III standing.
5 To be clear, I freely admit as much, see supra at 3–4, and the majority surely
understands that. For that reason, its parting shot—that I’m seeking to use
this dissent to plug my “different approach to standing doctrine,” Maj. Op. at
26 (citing Sierra v. City of Hallandale Beach, 996 F.3d 1110, 1115–40 (11th Cir.
2021) (Newsom, J., concurring))—rings hollow. I’ve been very candid about
the problems that I think plague current standing jurisprudence, see also
Laufer v. Arpan LLC, 29 F.4th 1268, 1283–97 (11th Cir. 2022) (Newsom, J.,
concurring), but for present purposes I’m content to take Spokeo and
TransUnion exactly as I find them. The problem for the majority, explained
in text, is that neither Spokeo nor TransUnion supports its wooden element-
for-element test.
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18 Newsom, J., Dissenting 19-14434
common-law causes of action. As the TransUnion Court said, a
statutory-harm plaintiff needn’t provide an “exact duplicate” of a
common-law claim—a “close” analogue is enough. Id. at 2204(quoting Spokeo, 578 U.S. at 341).
The challenge, of course, is that discerning whether the
required “close relationship” exists between a modern statutory
claim and a traditional common-law cause of action isn’t always (or
even usually) obvious. It isn’t, to use the majority’s term,
“simpl[e].” See Sierra v. City of Hallandale Beach, 996 F.3d 1110,
1121 (11th Cir. 2021) (Newsom, J., concurring) (“Just how closely
analogous to a common-law tort must an alleged injury be in order
to be ‘concrete’?”). In neither Spokeo nor TransUnion did the
Supreme Court purport to answer all of the questions; rather, the
Court left it to the lower courts to operationalize the “close
relationship” standard.
And operationalize it they did. Steering the required middle
course between the two fixed points—again, (1) that Congress
can’t enact just any old injury into existence, and (2) that plaintiffs
suing under congressional enactments needn’t “exact[ly]
duplicate” an existing common-law claim—the circuits developed
what I’ll call a “kind-degree” framework: A plaintiff suing on a
statutory cause of action must show that his alleged injury is similar
in kind to the harm addressed by a common-law cause of action,
but not that it is identical in degree. This consensus approach
makes good sense. The kind-degree framework not only abides by
the Supreme Court’s dual directives, but also tethers modern
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19-14434 Newsom, J., Dissenting 19
plaintiffs to historical antecedents without hamstringing
Congress’s ability to innovate.
The now-vacated panel opinion detailed the evolution and
adoption of the kind-degree framework in the courts of appeals,
adopted that framework as its own, and then applied it to decide
Hunstein’s case. See Hunstein, 17 F.4th at 1024 (citing Robins v.
Spokeo, Inc., 867 F.3d 1108, 1115 (9th Cir. 2017); Gadelhak v.
AT&T Servs., Inc., 950 F.3d 458, 463 (7th Cir. 2020); Cranor v. 5
Star Nutrition, L.L.C., 998 F.3d 686, 690 (5th Cir. 2021); Demarais
v. Gurstel Chargo, P.A., 869 F.3d 685, 691 (8th Cir. 2017); In re
Horizon Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625,
639 (3d Cir. 2017); and Lupia v. Medicredit, Inc., 8 F.4th 1184, 1192
(10th Cir. 2021)). Wholly unsurprisingly, in their briefs to the en
banc court, both Preferred and Hunstein framed their arguments
by reference to the kind-degree framework, agreeing that it
supplies the proper inquiry. See En Banc Br. of Appellee at 18
(“[T]he intangible statutory harm must still be the same kind of
harm actionable at common law.” (emphasis in original)); id. at 42(“[I]t is necessary to determine whether the statutory harm is the
same kind of harm actionable at common law.” (emphasis in
original)); id. at 43 (“That is a question of kind, not degree.”); En
Banc Br. of Appellant at 4 (“An important nuance in analyzing the
‘close relationship’ is whether a cause of action is similar in kind,
but not necessarily in degree.”).
Quite surprisingly, to me anyway, the majority just waves
away all of this—the circuit-court decisions adopting the kind-
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20 Newsom, J., Dissenting 19-14434
degree framework, the parties’ discussions of it, its application to
this case, all of it. The majority neither accepts nor rejects the kind-
degree framework—because it can’t bring itself to engage it. Given
the majority’s conspicuous avoidance, and its equally conspicuous
failure to offer any alternative methodology for deciding the knotty
“close enough” questions that inevitably arise in the wake of
Spokeo and TransUnion, it’s worth surveying the landscape once
again.
I begin at the beginning, with Judge O’Scannlain’s opinion
for the Ninth Circuit on remand from the Supreme Court in
Spokeo. Importantly for our purposes, he explained there that
Spokeo’s “close relationship” test requires only that an intangible
harm be “closely similar in kind to others that have traditionally
served as the basis for [a] lawsuit.” Robins, 867 F.3d at 1115
(emphasis added). Tellingly, the Ninth Circuit held that even
though an FCRA claim differed in key respects from the common-
law torts of defamation and libel—both of which, for instance,
“required the disclosure of false information that would be harmful
to one’s reputation”—the plaintiff’s statutory cause of action bore
a sufficiently “close relationship” for Article III purposes. Id.
(emphasis omitted).
Now-Justice Barrett’s opinion for the Seventh Circuit in
Gadelhak—which, notably, the Supreme Court cited with
approval in TransUnion—is similar, if even more explicit. In
holding there that a plaintiff’s allegation that he had received
several unwanted text messages in violation of the Telephone
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19-14434 Newsom, J., Dissenting 21
Consumer Protection Act constituted an Article-III-qualifying
concrete injury, the court emphasized—as had Judge
O’Scannlain—that “when Spokeo instructs us to analogize to
harms recognized by the common law, we are meant to look for a
‘close relationship’ in kind, not degree.” 950 F.3d at 462 (emphasis
added). In particular, the Seventh Circuit held that the harm
resulting from the unwelcome text messages bore a sufficient
relationship to the tort of intrusion upon seclusion, even though
the court recognized that “[a] few unwanted automated text
messages may be too minor an annoyance to be actionable at
common law.” Id. at 463. The key point, the court emphasized,
was that “such texts nevertheless pose the same kind of harm that
common law courts recognize.” Id. 6
Other courts decided post-Spokeo standing cases in the same
basic manner. For instance, in an opinion authored by Judge
Wilkinson, the Fourth Circuit held that a class of plaintiffs who had
received two phone calls within a year in violation of the TCPA
had Article III standing. See Krakauer v. Dish Network, L.L.C., 925
F.3d 643, 652–53 (4th Cir. 2019). The court acknowledged that the
plaintiffs might not have alleged a harm that would “rise[] to a level
that would support a common law cause of action.” Id. at 653–54.
6 Significantly, the Seventh Circuit has reaffirmed the kind-degree framework
post-TransUnion. See, e.g., Persinger v. Southwest Credit Sys., L.P., 20 F.4th
1184, 1192 (7th Cir. 2021) (“Spokeo and [TransUnion v.] Ramirez make clear
our responsibility to look for a close relationship ‘in kind, not degree.’”
(quoting Gadelhak, 950 F.3d at 462)).
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22 Newsom, J., Dissenting 19-14434
Importantly, though, the court—in an analysis utterly
irreconcilable with today’s majority’s exacting approach—rejected
the defendants’ request to “import the elements of common law
torts, piece by piece,” and held instead that the plaintiffs had
“plainly satisfie[d] the demands of Article III” because they had
alleged the same “types of harms protected at common law.” Id.
at 653–54 (emphasis added).
Judge Oldham reached the same conclusion—by the same
route—in a TCPA-related decision for the Fifth Circuit. There, the
court held that a single unsolicited text message in violation of the
TCPA bore a sufficiently close relationship to the common-law tort
of public nuisance. See Cranor, 998 F.3d at 690. In doing so, the
court freely acknowledged that the statute didn’t duplicate the
common-law tort in every jot and tittle. Id. at 692. In particular,
the court held that although the harm alleged didn’t “interfere with
those who come in contact with [the nuisance] in the exercise of a
public right or . . . otherwise affect[] the interests of the community
at large”—as is required for public-nuisance claims, see
Restatement (Second) of Torts § 821B cmt. g—the plaintiff’s
allegations bore “enough” of a relationship to the common-law
tort to support Article III standing, see Cranor, 998 F.3d at 692. In
so holding, the Fifth Circuit emphasized that the concreteness
inquiry should be “focused on types of harms protected at common
law, not the precise point at which those harms become
actionable.” Id. at 693 (emphasis added) (quoting Krakauer, 925
F.3d at 654).
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19-14434 Newsom, J., Dissenting 23
In the same way, the Eighth Circuit held that the harm
identified by § 1692f(1) of the FDCPA—which prohibits debt
collectors’ attempts to collect amounts not actually owed—bore a
sufficiently close relationship to common-law “unjustifiable-
litigation torts” like abuse of process, wrongful use of civil
proceedings, and malicious prosecution. See Demarais, 869 F.3d at
691. Importantly here, it did so notwithstanding the fact that an
attempt to collect a debt not owed lacks essential elements of
common-law unjustifiable-litigation claims—perhaps most
notably, that it doesn’t “set[] the machinery of the law in motion,”
involve the “use [of] legal process,” or require “making a charge
before a public official or body.” Restatement (Second) of Torts
§§ 653 (malicious prosecution), 674 (wrongful use of civil
proceedings), 682 (abuse of process); see also Demarais, 869 F.3d at
691.
Likewise, in In re Horizon Healthcare Services, the Third
Circuit concluded that violations of certain provisions of the FCRA
governing credit-card companies’ dissemination of personal
information bore a close relationship to invasion-of-privacy torts.
See 846 F.3d at 639–40. In doing so, the court acknowledged that
although neither the applicable provisions of the FCRA nor the
plaintiffs’ specific allegations involved the dissemination of
information that was damaging to one’s reputation or otherwise
offensive—which privacy torts ordinarily require—the harms
nonetheless satisfied Spokeo’s “close relationship” test. See id. at
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24 Newsom, J., Dissenting 19-14434
639 (noting that “[w]e are not suggesting that Horizon’s actions
would give rise to a cause of action under common law”).
Most recently—and in fact, since TransUnion was decided—
the Tenth Circuit held that the harm resulting from an unwelcome
phone call bore a close relationship to the tort of intrusion upon
seclusion. Lupia, 8 F.4th at 1191. The court there emphasized that
“[t]hough a single phone call may not intrude to the degree
required at common law, that phone call poses the same kind of
harm recognized at common law.” Id. at 1192 (first emphasis
added). In so holding, the Tenth Circuit distinguished TransUnion
on the ground that the defendants there hadn’t disclosed any
information regarding the larger subset of plaintiffs to anyone and,
accordingly, that the harm identified by those plaintiffs “differed in
kind” from the harm of defamation. Id. 7
7 It’s worth noting that this Court’s lone foray into the kind-degree waters—
while not perfectly free of ambiguity—is consistent with our sister circuits’
decisions. In Salcedo v. Hanna, 936 F.3d 1162 (11th Cir. 2019), which today’s
majority opinion curiously never even mentions, we held that receipt of a
single unwelcome text message didn’t bear a sufficiently close relationship to
any of a handful of common-law torts. Id. at 1171. To that extent, the Court
reached a bottom-line conclusion different from those reached by the Fifth
and Seventh Circuits in Cranor and Gadelhak, respectively. More important
for our purposes than Salcedo’s result, though—this isn’t a TCPA case, after
all, and the en banc court isn’t bound by our prior decisions, in any event—is
the panel’s analysis. To be sure, the opinion there suggested in one place that
the plaintiff’s allegations “f[e]ll short of th[e] degree of harm” that intrusion
upon seclusion ordinarily entails, id. at 1171, and in another that a
“significant[]” difference in “degree” might disqualify an intangible-injury
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19-14434 Newsom, J., Dissenting 25
* * *
Perhaps the majority just rejects the kind-degree framework
that our sister circuits have embraced. Perhaps not. It’s impossible
to say from its opinion, which resolutely refuses to engage it. It
may be that the majority sidesteps the kind-degree framework
because it knows that it has to—at least if it intends to retain any
tether to Supreme Court precedent. It’s hard to imagine a
circumstance in which a plaintiff’s harm is similar in both “kind”
and “degree” to a common-law tort and yet is not precisely the
plaintiff, id. at 1172. But the balance of the opinion emphasized that only an
alleged harm that is “categorically distinct” from a common-law comparator
would scuttle a plaintiff’s standing. Id. Concerning the torts of trespass and
nuisance, for instance, the panel stressed that they were different from the
plaintiff’s alleged harm “both in kind and in degree.” Id. at 1171. So too, the
panel said, with respect to both invasion of privacy in general and intrusion
upon seclusion in particular, “an examination of those torts reveals significant
differences in the kind and degree of harm they contemplate providing redress
for.” Id. at 1172 (emphasis added). Perhaps most tellingly, the Salcedo opinion
concluded by expressly rejecting any suggestion that a plaintiff’s standing turns
on “how small or large [his] injury is” and emphasizing that the key criterion
is quality, not quantity: “Our assessment today is thus qualitative, not
quantitative. We have assessed how concrete and real the alleged harm is and
we have concluded that it is not the kind of harm that constitutes an injury in
fact.” Id. at 1173 (emphasis added) (citation omitted). Notably, in Gadelhak,
now-Justice Barrett interpreted Salcedo—just as I do here—to hold that an
alleged harm and a common-law tort must be similar in kind, but not in
degree. See Gadelhak, 950 F.3d at 462 (“In rejecting standing in a similar case,
the Eleventh Circuit suggested that the tort of intrusion upon seclusion
addressed only invasions of privacy like eavesdropping and spying, which pose
a different kind of harm altogether.”).
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26 Newsom, J., Dissenting 19-14434
same—the majority certainly hasn’t pointed to one. The majority’s
wooden element-for-element approach—which amounts to a
similar-in-both-kind-and-degree standard—thus can’t be reconciled
with Spokeo’s prescription of a “close” (but not identical)
relationship, 578 U.S. at 341, with TransUnion’s reminder that “we
do not require an exact duplicate” between the alleged injury and
a traditionally recognized harm, 141 S. Ct. at 2209, or, for that
matter, with our own one-time recognition that the fit between a
plaintiff’s statutory claim and a “pedigreed common-law cause of
action need not be perfect,” Muransky, 979 F.3d at 926.
In any event, today’s majority effectively leaves this Court
on the short side of (by my count) a 7-1 circuit split. To be clear,
I’m not averse to breaking with our sister circuits when
necessary—our obligation is to the law, not to what other courts
have said about the law. See, e.g., Romero v. Secretary, U.S. Dep’t
of Homeland Sec., 20 F.4th 1374, 1382 n.5 (11th Cir. 2021)
(Newsom, J.) (expressly rejecting Fifth and D.C. Circuits’
interpretations of 8 U.S.C. § 1101(g)). But if we’re going to reject a
framework that so many of our colleagues have adopted as a means
of implementing the Spokeo/TransUnion “close relationship”
criterion—and, for that matter, the framework embraced and
utilized by the parties to this very case—we should do so openly
and unashamedly. We should acknowledge that framework,
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19-14434 Newsom, J., Dissenting 27
explain our reasons for repudiating it, and offer a meaningful
alternative. Today’s majority does none of those things.8
One final word about the majority’s implicit rejection of the
kind-degree analysis—and its explicit adoption of a rigid jot-for-jot,
element-for-element test: Not only does it defy Supreme Court
precedent, and not only does it spurn the post-Spokeo/TransUnion
consensus among the circuits, it also deprives Congress of any
authority to innovate. Under the majority’s de facto perfect-match
criterion, Congress has essentially no freedom to recognize new
judicially enforceable rights. Rather, it is relegated to the role of
scrivener, dutifully replicating and codifying preexisting common-
law causes of action. Should Congress enact a statute that targets
the same kind of harm that a common-law claim addressed, but
permit protected parties to deviate even one degree from a single
element of that common-law forebear, it will have overstepped its
constitutional authority. That, it seems to me, cannot possibly be
the law.
8Seemingly nodding to would-be cert-opposition authors, the majority insists
that I have “manufacture[d]” the circuit split that I describe. See Maj. Op. at
25. Tellingly, though, it does so without actually engaging any of our sister
circuits’ decisions, and instead merely asserts that they offer “no uniform test.”
Id. at 26. Needless to say, I disagree. As explained in text, those decisions offer
a coherent and principled framework—even if some (but not all) of them fail
to incant certain magic words, contra id. at 26 n.10—with which today’s
majority opinion is irreconcilable.
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28 Newsom, J., Dissenting 19-14434
C
On, finally, to deciding Hunstein’s case—or at least to how
I would decide Hunstein’s case. Under the sensible (and until
today, consensus) kind-degree approach to the
Spokeo/TransUnion “close relationship” standard, Hunstein has
standing here. The majority concludes otherwise not only by
forsaking the kind-degree framework in favor of what amounts to
a perfect-match test, but also in refusing to give Hunstein’s
complaint an appropriately charitable reading and, worse, just flat
disregarding its express allegations.
On the face of his complaint, Hunstein has alleged a harm
that is similar in kind—even if not in precise degree—to the
common-law tort of public disclosure of private facts. To repeat,
under that tort, “[o]ne who gives publicity to a matter concerning
the private life of another is subject to liability to the other for
invasion of his privacy, if the matter publicized is of a kind that
(a) would be highly offensive to a reasonable person, and (b) is not
of legitimate concern to the public.” Restatement (Second) of
Torts § 652D. As already explained, the majority agrees (or at least
doesn’t disagree) that Hunstein’s allegations satisfy the highly-
offensive and not-of-public-concern elements. The lone question,
therefore, is about “publicity.” And to repeat—which I do because
the majority’s treatment so often seems to obscure the point—the
question is not whether Hunstein’s allegations satisfy that element
sufficiently to state a common-law public-disclosure claim on the
merits. Rather, it is whether, at the pleadings stage, Hunstein’s
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19-14434 Newsom, J., Dissenting 29
allegations, and any reasonable inferences therefrom, come “close
enough” to that element to give him Article III standing to sue.
Again, Hunstein claims that a debt collector, Preferred,
“disclosed” what he calls “sensitive medical information”—
including, most notably, the status of Hunstein’s debt, his minor
son’s name, and that his debt arose from his son’s medical
treatment—to “the employees of an unauthorized third-party mail
house,” CompuMail. Pl.’s Compl. at 5. That means, based on the
allegations of the complaint—which we must accept as true for
purposes of this appeal—that some measure of disclosure in fact
occurred. See, e.g., Munson v. Lathrop, 71 N.W. 596, 597 (Wis.
1897) (“The writing of the message, and the delivery of it by him
to the [telegraph] company for transmission, as mentioned, was a
publication of the same.”). To be sure, Preferred’s disclosure of
Hunstein’s private information to CompuMail’s employees might
have been less widespread—less “public”—than the disclosures
typical of actionable public-disclosure-of-private-facts claims. But
that is a matter of “degree”; dissemination of personal information
to a third-party’s employees and more widespread dissemination
of that same personal information—and thus the harms that those
disclosures can cause—remain similar in “kind.” 9
9To be clear, there is no one-size-fits-all formula for determining just how
widespread the dissemination must be to constitute “publicity” under the
common law: “[T]he extent of the required publicity to support a claim of
public disclosure of private facts varies from jurisdiction to jurisdiction.”
Fernandez-Wells v. Beauvais, 983 P.2d 1006, 1008 (N.M. App. 1999); see also,
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30 Newsom, J., Dissenting 19-14434
For its part, the majority never disputes any of this—
because, again, it never confronts it. What the majority does do,
unfortunately, is ignore the actual allegations of—and thus badly
misconstrue—Hunstein’s complaint. The majority repeatedly
asserts that Hunstein’s complaint alleges only a disclosure from
one inanimate company, Preferred, to its inanimate “vendor,”
CompuMail—and, accordingly, the majority says, even giving his
complaint what it calls the “most generous reading,” it can’t infer
that “even a single person at the mail vendor knew about [his]
debt,” Maj. Op. at 27. 10 Indeed, the majority goes so far as to say
that Hunstein’s complaint’s “allegations stop there.” Id. at 20.
e.g., Karch v. BayBank FSB, 794 A.2d 763, 774 (N.H. 2002) (“[D]etermining
whether a disclosure of a private matter has become one of public knowledge
does not, as a matter of law, depend on the number of people told. Whether
publicity is achieved by broadcasting something private to a few people or to
the masses is a conclusion best reached by the trier of fact.”). In any event, for
purposes of the “close enough” analysis, we needn’t get wrapped around the
axle about precisely how much disclosure would suffice to state a common-
law tort claim. It’s enough that Hunstein has alleged something similar.
10 See also Maj. Op. at 3 (“The plaintiff alleges that a creditor sent information
about his debt to a mail vendor . . . .”); id. at 4 (“[T]he collection agency sent
its vendor several pieces of information . . . .”); id. at 4-5. (“He alleged that
Preferred Collection had disclosed information about his debt to a third
party—the mail vendor . . . .”); id. at 5 (“The district court granted [the]
motion to dismiss . . . because the communication to the mail vendor . . . .”);
id. at 15 (“Hunstein alleges that . . . Preferred Collection sent information
about his debt to a mail vendor . . . .”); id. at 16 (“[Hunstein] says that by
sending the information about his debt to the mail vendor . . . .”); id. at 20(“His complaint says that Preferred Collection placed his personal information
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19-14434 Newsom, J., Dissenting 31
That’s just not true. Hunstein’s complaint didn’t just allege
that Preferred disclosed his private information to some
disembodied Borg—“the vendor.” To the contrary, his complaint
alleged—in the very first substantive paragraph under the heading
“Preferred’s Violations of the FDCPA”—that “Preferred violated
15 U.S.C. § 1692c(b) when it disclosed information about Mr.
Hunstein’s purported ACH debt to the employees of an
unauthorized third-party mail house in connection with the
collection of the Debt.” Pl.’s Compl. at 5 (emphasis added and
omitted). 11
‘within the possession of an unauthorized third-party’ . . . .”); id. at 22 (“[T]he
complaint describes a disclosure that reached a single intermediary . . . .”); id.
(“Hunstein did not even allege that a single employee ever read or understood
the information about his debt.”); id. (“Under even the most generous reading
of his complaint, one company sent his information to another . . . .”); id. at
27 (“Preferred Collection’s disclosure to its vendor . . . .”); id. at 27 (“Nor is it
clear, or even likely, that even a single person at the mail vendor knew about
the debt . . . .”).
11 It’s no answer to say that
“the rest of the allegations” negate Hunstein’s lead
disclosure-to-employees contention. Contra Maj. Op. at 21. The majority’s
assertion that the follow-on allegations “show” that Preferred’s disclosure of
Hunstein’s private information was merely “an electronic transfer between
two companies”—i.e., Borg to Borg—doesn’t withstand scrutiny. See id. Nor
does the concurring opinion’s accusation that I am “ignor[ing] specific
allegations that clarify the general one [I] pluck[] out of context.” Pryor
Concurring Op. at 8. Warning: Long footnote ahead. This is a sideshow, but
it’s an important one.
First, there’s nothing in Hunstein’s complaint that even remotely
compels the conclusion that a “bare electronic conveyance of information” is
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32 Newsom, J., Dissenting 19-14434
all that occurred. Id. at 9; see also Maj. Op. at 21 (“electronic transfer”). The
word “populate”—on which the concurrence seems to predicate its bare-
electronic-conveyance contention, see Pryor Concurring Op. at 9—means
only “to import data into (a database)” or to “provide (a database) with
content.” Populate, Oxford English Dictionary (online ed.). Nothing about
that word requires (or even necessarily implies) automation, let alone a “bare
electronic conveyance of information.” Indeed, individuals—i.e., human
beings—manually “populate” forms with information in all sorts of everyday
circumstances: at a doctor’s office, in filling out a questionnaire, when buying
something online, etc. So I fail to understand why Hunstein’s complaint can’t
fairly be read to assert that the same CompuMail “employees” to whom
Preferred disclosed his private information received and read that information
before manually populating it into the necessary template.
Second, both the majority and the concurrence rely on Hunstein’s
lawyer’s statements at oral argument to prop up their position that
CompuMail’s employee couldn’t possibly have read or perceived the
information that Preferred transmitted to them. See Maj. Op. at 21; Pryor
Concurring Op. at 9. It wasn’t long ago, though, that one of my colleagues
(successfully) insisted that we “cannot rely on [an] inquisition” that takes place
“at oral argument.” United States v. Campbell, 26 F.4th 860, 889 (11th Cir.
2022) (en banc) (Pryor, C.J., concurring). If that is indeed the rule, it is
particularly applicable (in a way that it wasn’t in Campbell) to Hunstein’s
lawyer’s equivocal oral-argument responses to the judges’ questions. True,
when pressed, Hunstein’s lawyer conceded that his complaint was “inartfully
drafted” and that he hadn’t explicitly “alleged that anyone read or perceived”
the information. Oral Arg. at 7:30–45, 9:15. But both the majority and the
concurrence here fail to acknowledge that the lawyer also agreed that the
complaint’s allegations permit the “rational inference” that Hunstein’s
information “was read.” Id. at 5:25–6:05; see also id. at 8:05–50 (reiterating
that he was not “walking away from” the inference that the information was
“disclosed [to] or read by employees,” emphasizing that the complaint’s
disclosure-to-employees allegation was “very relevant,” and responding “no”
when asked whether he was “disclaiming it”).
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19-14434 Newsom, J., Dissenting 33
The majority’s refusal to meaningfully reckon with
Hunstein’s employees-based allegation is odd, given that the since-
vacated panel opinion addressed it repeatedly and in detail. See
Hunstein, 17 F.4th at 1020, 1021, 1027, 1028 & n. 7, 1029, 1031. Be
that as it may, the allegation is significant—not nearly as easily
shrugged off as the majority seems to think. As already noted,
Hunstein’s standing here turns on whether he has alleged a harm
that bears a “close” (though not identical) relationship to public
disclosure of private facts—and, in particular, to that tort’s
“publicity” element. Importantly here, that element is satisfied
where private information is communicated either “to the public
at large” or “to so many persons that the matter must be regarded
Finally, and most fundamentally, why do the majority and
concurrence insist on squinting so hard at Hunstein’s complaint, parsing it in
a way that denies him standing at the pleading stage? It’s possible, I suppose,
that if Hunstein’s case had proceeded, Preferred might have been able to
demonstrate that CompuMail is just a bot-filled warehouse and that, in fact,
no human “employees” ever “actually read” his information. TransUnion, 141
S. Ct. at 2210 n.6. If so, it might have been entitled to summary judgment or
a trial victory, just as TransUnion was. See id.; see also supra at 9–10. But of
course Hunstein’s case never made it that far, and that’s just not what he
alleged in his complaint—or, at the very least, it’s not the only reasonable
inference that can be drawn from his complaint. And given that we must
accept the facts alleged “as true and draw all reasonable inferences in
[Hunstein’s] favor,” their stingy reading is inappropriate at the motion-to-
dismiss stage. Royal Caribbean Cruises, 931 F.3d at 1043 (quotation omitted;
emphasis added).
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34 Newsom, J., Dissenting 19-14434
as substantially certain to become one of public knowledge.”
Restatement (Second) of Torts § 652D cmt. a.
Again, at the pleading stage, we must not only accept the
facts alleged in Hunstein’s complaint as true but also draw all
reasonable inferences in his favor. Royal Caribbean Cruises, 931
F.3d at 1043. In light of that familiar standard, two important
points: First, given that Hunstein has alleged a disclosure to an as-
yet-undetermined number of CompuMail’s “employees,” it’s not
at all too “generous” to infer—contra the majority—that those
living, breathing, thinking individuals both “read [and] understood
the information about his debt.” Maj. Op. at 22. To be honest, I
don’t know what other inference we could draw from that
allegation at this juncture of the case. Second, the Restatement
expressly ties the publicity element, as one of two alternative ways
of demonstrating it, to how “many persons” received the plaintiff’s
private information. See Restatement (Second) of Torts § 652D
cmt. a. At this early phase of the litigation, we have no way of
knowing how many employees CompuMail even has—let alone
how many of them saw Hunstein’s information. What if that
number were 100? Or 500? Or 10,000? What if Preferred had
disclosed to 10,000 CompuMail employees not just Hunstein’s
son’s name and the fact of his hospitalization but also the
particulars of his medical diagnosis and prognosis? Still no
“publicity”? Come on.
To be clear, I’m not suggesting that publicity is purely a
“numbers game.” Maj. Op. at 20. But even the majority admits—
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19-14434 Newsom, J., Dissenting 35
as it must given the Restatement’s plain terms—that the “number”
of individuals to whom private information is disclosed at least
bears on the publicity question. In the majority’s words:
To be sure, dissemination of information to many
people is one way publicity can occur. But a
disclosure to many people may still be private, or at
least not “publicity.” Although the number of people
who receive information may be relevant when
examining the question of publicity, it does not itself
reveal whether a given disclosure qualifies as public.
Maj. Op. at 19 (emphasis added). As the majority’s tentative,
conditional language indicates, the breadth of any particular
disclosure is a matter of degree, not kind—and thus, at least in the
way that I (and many of my colleagues across the country) think
about it, not a basis for refusing a plaintiff standing to sue.12
12The majority counters with an example: A “trade secret . . . communicated
to thousands of new employees after a merger,” it says, would not support a
public-disclosure claim. Maj. Op. at 19. That may well be correct, but not for
the reason the majority seems to think.
As the Supreme Court noted in TransUnion, intra-company
disclosures typically aren’t “actionable publications,” at least for defamation
purposes. 141 S. Ct. at 2210 n.6 (citing Chalkley v. Atl. Coast Line R.R. Co.,
143 S.E. 631, 638–39 (Va. 1928)). That’s not, though, because they aren’t
“publications”; rather, it’s because (as the Supreme Court’s own cited case
demonstrates) they aren’t “actionable.” Id.; see also Restatement (Second) of
Torts § 577 cmt. e (“The fact that the defamatory matter is communicated to
an agent of the defamer does not prevent it from being a publication . . . .”).
And the actionable/non-actionable distinction turns on whether a particular
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36 Newsom, J., Dissenting 19-14434
communication is privileged. See Chalkley, 143 S.E. at 638–39. Irrespective
of whether a publication is privileged or not, and thus actionable or not, it
remains a publication. Restatement (Second) of Torts § 577 cmt. n (“One who
is privileged to communicate defamatory matter publishes the matter, even
though the publication is privileged.”).
Privilege seems to play a similar (though not quite identical) role in
the public-disclosure context. For reasons I’ve explained, absent any privilege
issue, a sufficiently widespread intra-company disclosure—i.e., “to so many
persons” that it “reaches, or is sure to reach, the public,” id. § 652D cmt. a—
might well satisfy the public-disclosure tort’s “publicity” element. To the
extent that the majority’s trade-secret hypothetical would fail to support a
public-disclosure claim, that’s because the secret’s recipients would be
privileged to receive it—and, in turn, would be bound by privilege not to
further disclose it. In that circumstance, we might rightly conclude that the
privileged information isn’t “sure to reach[] the public.” To be clear, though,
that conclusion turns on the nature of the information at issue—privileged vs.
non-privileged—not, as the majority seems to assume, on the nature of the
disclosure—intra- vs. extra-company. Separately, to the extent the majority’s
trade-secret hypo has resonance, it may be because, as would almost surely be
the case, a trade secret wouldn’t satisfy the public-disclosure tort’s
requirement that its dissemination be “highly offensive to a reasonable
person.” Cf., e.g., Wolfe v. Schaefer, 619 F.3d 782, 784 (7th Cir. 2010) (stating
that “unreasonable publicity given to another’s private life” is “illustrated by,”
for example, “the unauthorized publicizing of a person’s medical condition”
or his “personal finances”). That element, too, turns on the nature of the
information disclosed, not the nature of the disclosure itself.
Perhaps a counter-counterexample will demonstrate the limits of (and
flaws in) the majority’s logic: If Google were to communicate to all of its
100,000-plus employees a non-privileged piece of information—say, for
example, a user’s entire internet-search history—I think we can agree we’d
have an actionable public disclosure on our hands, and certainly something
“close enough” to confer Article III standing.
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19-14434 Newsom, J., Dissenting 37
* * *
Giving Hunstein the benefit of the doubt, as we must at this
stage of the proceedings, it’s not at all unreasonable to infer that
Preferred’s disclosure of Hunstein’s private information to an as-
yet-undetermined number of CompuMail’s “employees”—i.e.,
“persons” within the meaning of Restatement (Second) of Torts
§ 652D cmt. a—could well lead to that information becoming more
broadly “public.” In my view, that’s sufficiently “close” to public
disclosure’s “publicity” element—at least as a matter of “kind, [if]
not degree,” Gadelhak, 950 F.3d at 462—to give Hunstein Article
III standing to sue.
III
It’s easy to get lost in the weeds as we delve into the finer
points of common-law causes of action, compare allegations to
elements, etc. But remember, our job is not to determine whether
Hunstein has stated a viable common-law tort claim. (He hasn’t
even brought a common-law tort claim.) Rather, our task is to
compare the “harm” that Congress targeted in the FDCPA and that
Hunstein asserts with the “harm” that the common law sought to
address—and, in particular, to determine whether those harms
bear a sufficiently “close relationship.” TransUnion, 141 S. Ct. at
2209. Hunstein alleges that his privacy was compromised when his
intensely private information was disclosed to a group of strangers.
That’s the same sort of harm that common-law invasion-of-privacy
torts—and in particular, public disclosure of private facts—aim to
remedy. To be sure, just as the disclosure that Hunstein alleged
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38 Newsom, J., Dissenting 19-14434
might have been less extensive than that typically associated with
a common-law invasion-of-privacy claim, the harm that Hunstein
experienced may have been less severe. But those, again, are
differences in degree, not kind.
Today’s opinion empties the Spokeo/TransUnion “close
relationship” standard of all subtlety, adopts what is, in effect, the
very “exact duplicate” standard that the Supreme Court has
forbidden and that we had earlier forsworn, places this Court on
the wrong side of a 7-1 circuit split, and, in the doing, denies
Congress any meaningful ability to innovate, leaving it only to
replicate and codify existing common-law causes of action.
I respectfully dissent.