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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-14434
________________________
D.C. Docket No. 8:19-cv-00983-TPB-TGW
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
________________________
(April 21, 2021)
Before JORDAN, NEWSOM, and TJOFLAT, Circuit Judges.
NEWSOM, Circuit Judge:
This appeal presents an interesting question of first impression under the
Fair Debt Collection Practices Act—and, like so many other cases arising under
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federal statutes these days, requires us first to consider whether our plaintiff has
Article III standing.
The short story: A debt collector electronically transmitted data concerning
a consumer’s debt—including his name, his outstanding balance, the fact that his
debt resulted from his son’s medical treatment, and his son’s name—to a third-
party vendor. The third-party vendor then used the data to create, print, and mail a
“dunning” letter to the consumer. The consumer filed suit alleging that, in sending
his personal information to the vendor, the debt collector had violated 15 U.S.C. §
1692c(b), which, with certain exceptions, prohibits debt collectors from
communicating consumers’ personal information to third parties “in connection
with the collection of any debt.” The district court rejected the consumer’s reading
of § 1692c(b) and dismissed his suit. On appeal, we must consider, as a threshold
matter, whether a violation of § 1692c(b) gives rise to a concrete injury in fact
under Article III, and, on the merits, whether the debt collector’s communication
with its dunning vendor was “in connection with the collection of any debt.”
We hold (1) that a violation of § 1692c(b) gives rise to a concrete injury in
fact under Article III and (2) that the debt collector’s transmittal of the consumer’s
personal information to its dunning vendor constituted a communication “in
connection with the collection of any debt” within the meaning of § 1692c(b).
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Accordingly, we reverse the judgment of the district court and remand for further
proceedings.
I
Congress enacted the FDCPA “to eliminate abusive debt collection practices
by debt collectors” and “to protect consumers against debt collection abuses.” 15
U.S.C. § 1692(e). To that end, § 1692c(b) of the FDCPA, titled “Communication
with third parties,” provides that—
Except as provided in section 1692b of this title, without the prior
consent of the consumer given directly to the debt collector, or the
express permission of a court of competent jurisdiction, or as
reasonably necessary to effectuate a postjudgment judicial remedy, a
debt collector may not communicate, in connection with the collection
of any debt, with any person other than the consumer, his attorney, a
consumer reporting agency if otherwise permitted by law, the creditor,
the attorney of the creditor, or the attorney of the debt collector.
15 U.S.C. § 1692c(b). The provision that § 1692c(b) cross-references—§ 1692b—
governs the manner in which a debt collector may communicate “with any person
other than the consumer for the purpose of acquiring location information.” 15
U.S.C. § 1692b. The FDCPA thus broadly prohibits a debt collector from
communicating with anyone other than the consumer “in connection with the
collection of any debt,” subject to several carefully crafted exceptions—some
enumerated in § 1692c(b), and others in § 1692b.
Richard Hunstein incurred a debt to Johns Hopkins All Children’s Hospital
arising out of his son’s medical treatment. The hospital assigned the debt to
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Preferred Collections & Management Services, Inc. for collection. Preferred in
turn hired Compumail, a California-based commercial mail vendor, to handle the
collection. Preferred electronically transmitted to Compumail certain information
about Hunstein, including, among other things: (1) his status as a debtor, (2) the
exact balance of his debt, (3) the entity to which he owed the debt, (4) that the debt
concerned his son’s medical treatment, and (5) his son’s name. Compumail used
that information to generate and send a dunning letter to Hunstein.
Hunstein filed a complaint, alleging violations of both the FDCPA, see 15
U.S.C. §§1692c(b) and 1692f, and the Florida Consumer Collection Practices Act,
see Fla. Stat. § 559.72(5). As relevant here, the district court dismissed Hunstein’s
action for failure to state a claim, concluding that he hadn’t sufficiently alleged that
Preferred’s transmittal to Compumail violated § 1692c(b) because it didn’t qualify
as a communication “in connection with the collection of a[ny] debt.” 1
1
The district court held for the same reason that Hunstein had not stated a claim for a violation
of § 1692f. The district court then declined to accept supplemental jurisdiction over Hunstein’s
state law claim. Hunstein’s appeal addresses only the portion of his complaint relating to
§ 1692c(b).
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Hunstein appealed, and we requested supplemental briefing on the question
whether he had Article III standing to sue, which we now consider along with the
merits.2
II
First things first. Because standing implicates our subject matter
jurisdiction, we must address it at the outset, before turning to the merits. Steel Co.
v. Citizens for a Better Env’t, 523 U.S. 83, 101–02 (1998). Article III of the
Constitution grants federal courts “judicial Power” to resolve “Cases” and
“Controversies.” U.S. Const. art. III, §§ 1–2. This case-or-controversy
requirement, which has been construed to embody the doctrine of standing,
“confines the federal courts to a properly judicial role.” Spokeo, Inc. v. Robins,
136 S. Ct. 1540, 1547 (2016). The “irreducible constitutional minimum” of Article
III standing entails three elements: injury in fact, causation, and redressability.
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–561 (1992).
Hunstein’s appeal involves the first element, injury in fact, which consists of
“an invasion of a legally protected interest” that is both “concrete and
2
Whether Hunstein has standing to sue is a threshold jurisdictional question that we review de
novo. Debernardis v. IQ Formulations, LLC, 942 F.3d 1076, 1083 (11th Cir. 2019). “We
review the decision to dismiss Plaintiff’s complaint pursuant to Rule 12(b)(6) de novo, applying
the same standard as the district court.” Holzman v. Malcolm S. Gerald & Assocs., Inc., 920
F.3d 1264, 1268 (11th Cir. 2019). Accepting the complaint’s allegations as true and construing
the facts in the light most favorable to Hunstein, “the relevant inquiry is whether Plaintiff has
stated a ‘plausible claim for relief’ under the FDCPA.” Id. (quoting Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009)).
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particularized” and “actual or imminent, not conjectural or hypothetical.” Id. at
560 (quotation marks omitted). In Trichell v. Midland Credit Mgmt., Inc., 964
F.3d 990 (11th Cir. 2020), a case involving the FDCPA, we reiterated that “[e]ach
subsidiary element of injury—a legally protected interest, concreteness,
particularization, and imminence—must be satisfied.” Id. at 996–97. The standing
question here implicates the concreteness sub-element.
A plaintiff can meet the concreteness requirement in any of three ways.
First, he can allege a tangible harm—a category that is “the most obvious and
easiest to understand” and that includes, among other things, physical injury,
financial loss, and emotional distress. See Muransky v. Godiva Chocolatier, Inc.,
979 F.3d 917, 926 (11th Cir. 2020) (en banc); see also Huff v. TeleCheck Servs.,
Inc., 923 F.3d 458, 463 (6th Cir. 2019). Second, a plaintiff can allege a “risk of
real harm.” Muransky, 979 F.3d at 927. Third, in the absence of a tangible injury
or a risk of real harm, a plaintiff can identify a statutory violation that gives rise to
an intangible-but-nonetheless-concrete injury. Spokeo, 136 S. Ct. at 1549. We
consider each possibility in turn.
A
Hunstein doesn’t allege a tangible harm. The complaint contains no
allegations of physical injury, financial loss, or emotional distress. Instead, the
complaint (1) conclusorily asserts that “[i]f a debt collector ‘conveys information
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regarding the debt to a third party—informs the third party that the debt exists or
provides information about the details of the debt—then the debtor may well be
harmed by the spread of this information,’” and (2) vaguely references the “known,
negative effect that disclosing sensitive medical information to an unauthorized
third-party has on consumers[.]” In his supplemental brief, Hunstein asks us to
construe these assertions as allegations of emotional harm, arguing that he was
“humiliated, embarrassed, and suffered severe anxiety[.]” But we have “repeatedly
held that an issue not raised in the district court and raised for the first time in an
appeal will not be considered by this court.” Access Now, Inc. v. Sw. Airlines Co.,
385 F.3d 1324, 1331 (11th Cir. 2004) (quotation marks omitted). Hunstein thus
cannot establish standing on the basis of a tangible harm.
B
Nor can Hunstein demonstrate standing by the second route—showing a
“risk of real harm.” “[W]hile very nearly any level of direct injury is sufficient to
show a concrete harm, the risk-of-harm analysis entails a more demanding
standard—courts are charged with considering the magnitude of the risk.”
Muransky, 979 F.3d at 927. “Factual allegations that establish a risk that is
substantial, significant, or poses a realistic danger will clear this bar[.]” Id. at 933.
Put slightly differently, to constitute injury in fact, the “threatened injury must be
certainly impending.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013).
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Again, Hunstein alleges only that a debtor “may well be harmed by the spread” of
the sort of information at issue here. That vague allegation falls short of a risk that
is “substantial, significant, or poses a realistic danger,” Muransky, 979 F.3d at 933,
or is “certainly impending,” Clapper, 568 U.S. at 409.
C
We thus consider whether Hunstein can show standing in the third manner—
through a statutory violation. “[T]he violation of a procedural right granted by
statute can be sufficient in some circumstances to constitute injury in fact,” such
that “a plaintiff . . . need not allege any additional harm beyond the one Congress
has identified.” Spokeo, 136 S. Ct. at 1549. Spokeo instructs that in determining
whether a statutory violation confers Article III standing, we should consider
“history and the judgment of Congress.” Id.
1
Starting with history, we can discern a concrete injury where “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.” Id. Put differently,
we look to “whether the statutory violation at issue led to a type of harm that has
historically been recognized as actionable.” Muransky, 979 F.3d at 926.
Muransky explains that the “fit between a new statute and a pedigreed common-
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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.” Id.
For more than a century, invasions of personal privacy have been regarded
as a valid basis for tort suits in American courts. See, e.g., Pavesich v. New
England Life Ins. Co., 122 Ga. 190, 50 S.E. 68 (1905); Munden v. Harris, 153 Mo.
App. 652, 134 S.W. 1076 (1911); Kunz v. Allen, 102 Kan. 883, 172 P. 532 (1918).
By 1977, the Restatement (Second) noted that “the existence of a right of privacy
is now recognized in the great majority of the American jurisdictions that have
considered the question.” Restatement (Second) of Torts § 652A cmt. a. (Am. Law
Inst. 1977).
More particularly, the term “invasion of privacy” comprises an identifiable
family of common-law torts—including, most relevantly here, “public disclosure
of private facts.” Invasion of Privacy, Black’s Law Dictionary 952 (10th ed.
2014). It is hornbook law that “[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 (1977); accord, e.g., 77 C.J.S. Right of Privacy and
Publicity § 32; 62A Am. Jur. 2d Privacy § 79. Indeed, the Supreme Court itself
has recognized “the individual interest in avoiding disclosure of personal matters”
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and has recognized that “both the common law and the literal understandings of
privacy encompass the individual’s control of information concerning his or her
person.” United States Dep’t of Justice v. Reporters Comm. for Freedom of the
Press, 489 U.S. 749, 763 (1989) (citation and quotation marks omitted).
Having established the historical pedigree of invasion-of-privacy torts—in
particular, the sub-species applicable to the public disclosure of private facts—we
next consider whether Preferred’s alleged statutory violation is sufficiently
analogous. Notably, the FDCPA’s statutory findings explicitly identify “invasions
of individual privacy” as one of the harms against which the statute is directed. 15
U.S.C. § 1692(a). And to that end, the statutory provision under which Hunstein
has sued here expressly prohibits a debt collector from “communicat[ing]” with
any but a few persons or entities “in connection with the collection of any debt.”
Id. § 1692c(b). Although § 1692c(b) isn’t identical in all respects to the invasion-
of-privacy tort, we have no difficulty concluding that it bears “a close relationship
to a harm that has traditionally been regarded as providing a basis for a lawsuit in
English or American courts.” Spokeo, 136 S. Ct. at 1549.
Perry v. Cable News Network, Inc., 854 F.3d 1336 (11th Cir. 2017), strongly
supports that conclusion. Perry concerned a plaintiff’s allegations that CNN
divulged his news-viewing history to a third-party in violation of the Video
Privacy Protection Act. Emphasizing the widespread recognition both of the right
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to privacy in general and, more particularly, the privacy interest implicated by the
VPPA—the interest in preventing the disclosure of personal information—the
Court in Perry concluded that the statutory violation of the VPPA constituted a
cognizable Article III injury. Id. at 1341 (citing Reporters, 489 U.S. at 762–63).
Hunstein’s allegations closely resemble those in Perry. The VPPA prohibits “[a]
video tape service provider [from] knowingly disclos[ing], to any person,
personally identifiable information concerning any consumer of such provider.”
18 U.S.C. § 2710(b). As relevant here, the FDCPA similarly prohibits a debt
collector from “communicat[ing], in connection with the collection of any debt,
with any person other than the consumer[.]” §1692c(b). The two statutes thus
share a common structure—A may not share information about B with C. Because
we find Perry’s reasoning persuasive and analogous, we adopt it here.
Our decision in Trichell does not require a contrary conclusion. That case
addressed a claim under a different FDCPA provision, § 1692e, which states that a
“debt collector may not use any false, deceptive, or misleading representation or
means in connection with the collection of any debt.” 15 U.S.C. § 1692e. The
plaintiffs in Trichell alleged that debt collectors had sent them misleading letters,
and in assessing their claims’ pedigree, we determined that the “closest historical
comparison is to causes of action for fraudulent or negligent misrepresentation.”
964 F.3d at 998. Canvassing the common-law history of those torts, we held that
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the plaintiffs’ claims lacked the necessary “close relationship” to them. Id. at 997–
98. That conclusion is entirely consistent with our holding here that Hunstein has
standing to sue under a different FDCPA provision. Hunstein’s claim, unlike the
Trichell plaintiffs’, arises under § 1692c(b) and bears a close relationship to a
common-law tort.
2
Although it presents a closer question, we conclude that “the judgment of
Congress” also favors Hunstein. Congress, of course, expresses its “judgment” in
only one way—through the text of duly enacted statutes. Even assuming that
§ 1692c(b) does not clearly enough express Congress’s judgment that injuries of
the sort that Hunstein alleges are actionable, here Congress went further to
“explain itself.” Huff, 923 F.3d at 466. In particular, as already noted, in a section
of the FDCPA titled “Congressional findings and declaration of purpose,”
Congress identified the “invasion[] of individual privacy” as one of the harms
against which the statute is directed. 15 U.S.C. § 1692(a). That, we think, is
sufficient.
It’s true that we pointed in Trichell to the FDCPA’s language that a person
may recover “any actual damage sustained by such person as a result of” an
FDCPA violation and “such additional damages as the court may allow,” 15
U.S.C. § 1692k(a), as evidence of Congress’s judgment that violations of a
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different provision—§ 1692e—do not ipso facto constitute a concrete injury.
Trichell, 964 F.3d at 1000. We don’t read § 1692k(a), though, as categorically
limiting the class of FDCPA plaintiffs to those with actual damages—particularly
where, as here, the FDCPA’s statutory findings expressly address the very harm
alleged—an “invasion[] of individual privacy.” 15 U.S.C. § 1692(a).
* * *
Because (1) § 1692c(b) bears a close relationship to a harm that American
courts have long recognized as cognizable and (2) Congress’s judgment indicates
that violations of §1692c(b) constitute a concrete injury, we conclude that Hunstein
has the requisite standing to sue.
III
Having determined that Hunstein has standing to sue under § 1692c(b), we
now consider the merits of his case. Recall that § 1692c(b) states that, subject to
several exceptions, “a debt collector may not communicate, in connection with the
collection of any debt,” with anyone other than the consumer. 15 U.S.C.
§ 1692c(b). The parties agree that Preferred is a “debt collector,” that Hunstein is a
“consumer,” and that the alleged debt at issue here was a “consumer debt,” all
within the meaning of § 1692c(b). Helpfully, the parties also agree that Preferred’s
transmittal of Hunstein’s personal information to Compumail constitutes a
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“communication” within the meaning of the statute.3 Accordingly, the sole
question before us is whether Preferred’s communication with Compumail was “in
connection with the collection of any debt,” such that it violates §1692c(b).
Hunstein contends that the plain meaning of the phrase “in connection with the
collection of any debt” and relevant precedents show that it was and does.
Preferred, conversely, urges us to adopt a “factor-based analysis” that shows that, it
says, its communication with Compumail was not “in connection with the
collection of any debt.”
We begin with the plain meaning of the phrase “in connection with” and its
cognate word, “connection.” Dictionaries have adopted broad definitions of both.
Webster’s Third defines “connection” to mean “relationship or association.”
Connection, Webster’s Third International Dictionary at 481 (1961), and the
Oxford Dictionary of English defines the key phrase “in connection with” to mean
“with reference to [or] concerning,” In Connection With, Oxford Dictionary of
English at 369 (2010). Usage authorities further explain that the phrase “in
3
Section 1692a(2) defines communication as “the conveying of information regarding a debt
directly or indirectly to any person through any medium.” 15 U.S.C. § 1692a(2).
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connection with” is “invariably a vague, loose connective.” Bryan A. Garner,
Garner’s Dictionary of Legal Usage 440 (3d ed. 2011).
Preferred’s transmittal to Compumail included specific details regarding
Hunstein’s debt: Hunstein’s status as a debtor, the precise amount of his debt, the
entity to which the debt was owed, and the fact that the debt concerned his son’s
medical treatment, among other things. It seems to us inescapable that Preferred’s
communication to Compumail at least “concerned,” was “with reference to,” and
bore a “relationship [or] association” to its collection of Hunstein’s debt. We thus
hold that Hunstein has alleged a communication “in connection with the collection
of any debt” as that phrase is commonly understood.
Preferred resists that conclusion on three different grounds, which we
address in turn.
A
First, Preferred relies on our interpretation of another FDCPA provision,
§ 1692e, to argue that communications “in connection with the collection of any
debt” necessarily entail a demand for payment. In relevant part, § 1692e states that
“[a] debt collector may not use any false, deceptive, or misleading representation
or means in connection with the collection of any debt.” 15 U.S.C. § 1692e
(emphasis added). In the line of cases interpreting the meaning of “in connection
with the collection of any debt” in § 1692e, we have focused on the language of the
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underlying communication. In Reese v. Ellis, Painter, Ratterree & Adams, LLP,
for instance, in concluding that a law firm’s letter to a consumer was “in
connection with the collection of any debt” within the meaning of § 1692e, we
emphasized that the letter expressly stated that the firm was attempting to collect a
debt and was acting as a debt collector, demanded full and immediate payment,
and threatened to add attorneys’ fees to the outstanding balance if the debtors
didn’t pay. 678 F.3d 1211, 1217 (11th Cir. 2012). Similarly, in Caceres v.
McCalla Raymer, LLC, we held that a collection letter constituted a
“communication in connection with the collection of a[ny] debt” under § 1692e for
similar reasons. Quoting the letter, we emphasized “that it is ‘for the purpose of
collecting a debt;’ it refers in two additional paragraphs to ‘collection efforts;’ it
states that collections efforts will continue and that additional attorneys’ fees and
costs will accrue; it states the amount of the debt and indicates that it must be paid
in certified funds; and it gives the name of the creditor and supplies the law firm’s
phone number in the paragraph where it talks about payments.” 755 F.3d 1299,
1301–03 (11th Cir. 2014).
Relying on Caceres and Reese—both of which, again, addressed § 1692e—
the district court here adopted the following test:
When determining whether a communication was made in connection
with the collection of a[ny] debt, the courts look to the language of the
communication itself to ascertain whether it contains a demand for
payment and warns of additional fees or actions if payment is not
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tendered. Consequently, when determining whether the transmission
of information to a third party constitutes a violation of the FDCPA, it
is important to consider whether the communication makes an express
or implied demand for payment.
The district court’s conclusion that the phrase “in connection with the
collection of any debt” necessarily entails a demand for payment defies the
language and structure of § 1692c(b) for two separate but related reasons—neither
of which applies to § 1692e. First, the demand-for-payment interpretation would
render superfluous the exceptions spelled out in §§ 1692c(b) and 1692b. Consider
as an initial matter the exceptions specified in § 1692c(b) itself: “[A] debt
collector may not communicate, in connection with the collection of any debt, with
any person other than the consumer, his attorney, a consumer reporting agency if
otherwise permitted by law, the creditor, the attorney of the creditor, or the
attorney of the debt collector[.]” 15 U.S.C. § 1692c(b) (emphasis added).
Communications with four of the six excepted parties—a consumer reporting
agency, the creditor, the attorney of the creditor, and the attorney of the debt
collector—would never include a demand for payment. The same is true of the
parties covered by § 1692b and, by textual cross-reference, excluded from
§ 1692c(b)’s coverage: “person[s] other than the consumer” with whom a debt
collector might communicate “for the purpose of acquiring location information
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about the consumer.” Id. § 1692b. A debt collector would presumably never make
a demand for payment of a party matching that description.
The upshot is that the phrase “in connection with the collection of any debt”
in § 1692c(b) must mean something more than a mere demand for payment.
Otherwise, Congress’s enumerated exceptions would be redundant. Under the
district court’s demand-for-payment interpretation, Congress wouldn’t have
needed to include exceptions for communications with consumer reporting
agencies, creditors, attorneys of creditors, attorneys of debt collectors, or persons
providing a debtor’s location information; those communications would have been
foreclosed ipso facto by the phrase “in connection with the collection of any debt.”
It is a “cardinal principle of statutory construction” that “a statute ought, upon the
whole, to be so construed that, if it can be prevented, no clause, sentence, or word
shall be superfluous[.]” Duncan v. Walker, 533 U.S. 167, 174 (2001) (quotation
marks omitted); accord, e.g., Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 174 (2012) (“If possible, every word and every
provision is to be given effect . . . . None should be ignored. None should
needlessly be given an interpretation that causes it to duplicate another provision or
to have no consequence.”). Because it is possible—and indeed, we think, more
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natural—to interpret § 1692c(b) in a way that does not render most of its textually
specified exceptions redundant, we will do so.
Second, and relatedly, the district court’s interpretation renders yet another
portion of § 1692c(b) meaningless. By insisting on a demand for payment, the
district court essentially interpreted “in connection with the collection of any debt”
to mean “to collect any debt.” Under this interpretation, the key phrase “in
connection with” has no independent meaning or force. But as just explained, we
have a duty to “give effect, if possible, to every clause and word of a statute[.]”
Duncan, 533 U.S. at 174.
The district court seems to have been led astray by its reliance on decisions
interpreting § 1692e, whose language and operation are different from
§ 1692c(b)’s in important respects. As a linguistic matter, § 1692e contains none
of the specific exceptions that § 1692c(b) does; accordingly, there was no risk in
Reese or Caceres that, by reading a “demand for payment” gloss into § 1692e, we
would render other portions of that statute redundant or meaningless. And as an
operational matter, § 1692e—which prohibits “false, deceptive, or misleading
representation or means in connection with the collection of any debt”—covers the
sorts of claims that are brought by recipients of debt collectors’ communications—
i.e., debtors. See Caceres, 755 F.3d at 1300–1301 (case brought by recipient of
letter, the debtor); Reese, 678 F.3d at 1214 (same). As its title indicates, by
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contrast, § 1692c(b), targets debt collectors’ “[c]ommunication with third parties,”
not debtors. In the typical § 1692c(b) case, the debtor isn’t the recipient of the
challenged communication. Linguistic differences aside, this practical operational
difference undermines any argument that the meaning of the phrase “in connection
with the collection of any debt” must necessarily be the same in § 1692c(b) as in §
1692e.
B
Preferred separately urges us to adopt the holistic, multi-factoring balancing
test that the Sixth Circuit decreed in its unpublished opinion in Goodson v. Bank of
Am., N.A., 600 Fed. Appx. 422 (6th Cir. 2015). That test counsels courts
confronting § 1692e’s “in connection with the collection of any debt” language to
take into account the following seven considerations:
(1) the nature of the relationship of the parties; (2) whether the
communication expressly demanded payment or stated a balance due;
(3) whether it was sent in response to an inquiry or request by the
debtor; (4) whether the statements were part of a strategy to make
payment more likely; (5) whether the communication was from a debt
collector; (6) whether it stated that it was an attempt to collect a debt;
and (7) whether it threatened consequences should the debtor fail to
pay.
Goodson, 600 F. App’x at 431. We decline Preferred’s invitation for two related
reasons.
First, and perhaps most obviously, Goodson and the cases that have relied on
it concern § 1692e—not § 1692c(b). And as just explained, §§ 1692c(b) and
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1692e differ both (1) linguistically, in that the former includes a series of
exceptions that an atextual reading risks rendering meaningless, while the latter
does not, and (2) operationally, in that they ordinarily involve different parties.
Goodson’s seventh factor—whether the communication threatened consequences
should the debtor fail to pay—illustrates this point. It makes little sense for a debt
collector to threaten consequences should the debtor fail to pay in a
communication that is not sent to the debtor himself.
Second, we believe that in the context of § 1692c(b), the phrase “in
connection with the collection of any debt” has a discernible ordinary meaning that
obviates the need for resort to extratextual “factors.” All too often, multifactor
tests—especially seven-factor tests like Goodson’s—obscure more than they
illuminate. Parties to FDCPA-governed transactions—debtors, creditors, debt
collectors, lawyers, etc.—are entitled to guidance about the scope of permissible
activity. They are likelier to get it even from a broadly framed statutory language
than from a judge-made gestalt.
C
Lastly, Preferred makes what we’ll call an “industry practice” argument. It
contrasts what it says is the widespread use of mail vendors like Compumail and
the relative dearth of FDCPA suits against them. More particularly, Preferred
identifies cases involving mail vendors and emphasizes that none of them hold that
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a debt collector’s mail vendor violated the FDCPA. True enough, but none of the
cases that Preferred cites involved § 1692c(b) claims, and the courts in those cases
certainly had no obligation to sua sponte determine whether the collectors’
communications to their vendors violated § 1692c(b). That this is (or may be) the
first case in which a debtor has sued a debt collector for disclosing his personal
information to a mail vendor hardly proves that such disclosures are lawful.
One final (and related) point: It’s not lost on us that our interpretation of
§ 1692c(b) runs the risk of upsetting the status quo in the debt-collection industry.
We presume that, in the ordinary course of business, debt collectors share
information about consumers not only with dunning vendors like Compumail, but
also with other third-party entities. Our reading of § 1692c(b) may well require
debt collectors (at least in the short term) to in-source many of the services that
they had previously outsourced, potentially at great cost. We recognize, as well,
that those costs may not purchase much in the way of “real” consumer privacy, as
we doubt that the Compumails of the world routinely read, care about, or abuse the
information that debt collectors transmit to them. Even so, our obligation is to
interpret the law as written, whether or not we think the resulting consequences are
particularly sensible or desirable. Needless to say, if Congress thinks that we’ve
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misread § 1692c(b)—or even that we’ve properly read it but that it should be
amended—it can say so.
IV
To sum up, Hunstein has Article III standing to bring his claim under
§ 1692c(b). Further, because Preferred’s transmittal of Hunstein’s personal debt-
related information to Compumail constituted a communication “in connection
with the collection of any debt” within the meaning of § 1692c(b)’s key phrase,
Hunstein adequately stated a claim.
REVERSED and REMANDED.
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