Paulette Barclift v. Keystone Credit Services LLC

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________

No. 22-1925
____________

PAULETTE BARCLIFT,
On behalf of herself and others similarly situated,
Appellant

v.

KEYSTONE CREDIT SERVICES, LLC
____________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 5-21-cv-04335)
District Judge: Honorable Joseph F. Leeson, Jr.
____________

Argued on March 30, 2023

Before: MATEY, FREEMAN, and FUENTES,
Circuit Judges

(Opinion filed: February 16, 2024)
Jesse S. Johnson [ARGUED]
Greenwald Davidson Radbil PLLC
5550 Glades Road, Suite 500
Boca Raton, FL 33431

Eric J. Landes
Landes Law, LLC
419 Oaktree Court
Sanatoga, PA 19464
Counsel for Appellant

Lee J. Janiczek [ARGUED]
Lewis Brisbois Bisgaard & Smith LLP
550 E Swedesford Road, Suite 270
Wayne, PA 19087
Counsel for Appellee

_______________

OPINION OF THE COURT
_______________

FREEMAN, Circuit Judge.

To facilitate its efforts to collect a debt, Keystone Credit
Services, LLC (“Keystone”) sent Paulette Barclift’s personal
information to a mailing vendor, RevSpring, which then
mailed Keystone’s collection notice to Barclift. Barclift did
not authorize Keystone’s communications to RevSpring. So
she sued Keystone for an unauthorized communication with a

2
third party in violation of the Fair Debt Collection Practices
Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and she sought to
represent a class of similarly situated plaintiffs. The District
Court found that Barclift did not allege an injury sufficient to
establish standing for purposes of Article III of the United
States Constitution and dismissed her suit with prejudice. We
agree that Barclift lacks standing, but we will modify the
District Court’s order so that the dismissal will be without
prejudice.

I

Keystone is a collection agency based in Lancaster,
Pennsylvania.1 It contracts with RevSpring to print and mail
debt collection notices. RevSpring is a nationwide operation
with multiple locations and hundreds of employees.

In October 2020, Barclift received a notice in the mail
from Keystone regarding her outstanding debt for medical
services. The notice was printed and mailed by RevSpring to
Barclift’s home in Pennsylvania. Keystone provided RevSpring
with Barclift’s name, address, debt balance, and other
information about the debt to populate the mailing. Barclift did
not give Keystone prior consent to share that information.

In October 2021, Barclift filed a class action complaint
against Keystone on behalf of herself and other Pennsylvania
residents who had received collection notices from Keystone
through third-party mailing vendors. She claimed that Keystone
violated the provision of the FDCPA that bars debt collectors
from communicating with third parties in connection with a

1
We recount the facts as alleged in Barclift’s complaint.

3
debt absent prior consent from the debtor (or absent exceptions
that do not apply here). 15 U.S.C. § 1692c(b). She alleged that
the disclosures had caused her embarrassment and stress,
invaded her privacy, and inflicted reputational harm.

Keystone moved to dismiss the complaint for failure to
state a claim. The District Court did not reach that argument
because it concluded that it lacked jurisdiction, so it dismissed
the action without prejudice on that basis and denied Keystone’s
motion as moot. In its opinion, the court assumed that Barclift
had alleged a procedural violation of the FDCPA based on
Keystone’s communication with RevSpring, but it held that
Barclift had not alleged a concrete injury sufficient to establish
standing.

Barclift subsequently amended her complaint by adding
allegations about RevSpring’s operations and data collection
processes. Specifically, she made several allegations “upon
information and belief,” including that RevSpring maintains
electronic copies of the consumer data it receives from debt
collectors for multiple years, during which time its employees can
access sensitive information. She also alleged that RevSpring
had mistakenly disseminated the personal information of more
than 1,000 patients in the University of Pennsylvania Health
System in 2014.

Keystone again moved to dismiss the complaint for
failure to state a claim, and the District Court again concluded
that Barclift lacked standing. It held that the mere possibility
of public disclosure of private facts was not enough to establish
a concrete injury and that her fear of future disclosure was too
speculative. This time, it dismissed the action with prejudice,
reasoning that any additional amendments would be futile

4
because Barclift had not cured her claim’s deficiencies when
given the opportunity to do so.

Barclift timely appealed.

II

We have jurisdiction over the District Court’s order
pursuant to 28 U.S.C. § 1291. We exercise de novo review of
a dismissal for a lack of standing, “accepting the facts alleged
in the complaint as true and construing the complaint in the
light most favorable to the non-moving party.” Potter v. Cozen
& O’Connor, 46 F.4th 148, 153 (3d Cir. 2022).

III

Article III of the Constitution grants federal courts
“judicial Power” to resolve “Cases” and “Controversies.” U.S.
Const. art. III, §§ 1–2. The doctrine of standing ensures that
courts do not overstep their role by “limit[ing] the category of
litigants empowered to maintain a lawsuit in federal court to
seek redress for a legal wrong.” Spokeo, Inc. v. Robins, 578 U.S.
330, 338 (2016). Plaintiffs seeking to vindicate their rights in
federal court must therefore satisfy Article III’s standing
requirements. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561
(1992); Finkelman v. Nat’l Football League, 877 F.3d 504, 511
(3d Cir. 2017). Standing consists of three main components:
(1) an injury in fact that is concrete and particularized, (2) a
causal connection between the injury and the challenged
conduct, and (3) a likelihood that the injury will be redressed
by a favorable judicial decision. In re Horizon Healthcare
Servs. Inc. Data Breach Litig., 846 F.3d 625, 633 (3d Cir. 2017)
(quoting Lujan, 504 U.S. at 560). Only the first component is
at issue in this appeal: whether Keystone’s alleged violation of

5
the FDCPA resulted in a concrete and particularized injury to
Barclift.

A

Congress enacted the FDCPA in 1977 to “eliminate
abusive debt collection practices by debt collectors” that had
contributed to “personal bankruptcies, to marital instability, to
the loss of jobs, and to invasions of individual privacy.” 15
U.S.C. §§ 1692(a), (e). To that end, section 1692c(b) prohibits
debt collectors from “communicat[ing], 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” “without the prior consent of the
consumer.” 15 U.S.C. § 1692c(b). And it creates a civil cause
of action for any individual who sustains damages due to a debt
collector’s violation of the Act. 15 U.S.C. § 1692k.

For decades following the enactment of the FDCPA,
consumers rarely sued over the use of third-party mailing
vendors for debt collection practices. But in 2021, the United
States Court of Appeals for the Eleventh Circuit held that
consumers have standing under the FDCPA to bring so-called
“mailing vendor theory” lawsuits. Hunstein v. Preferred
Collection & Mgmt. Servs., Inc., 994 F.3d 1341, 1344 (11th
Cir. 2021) (“Hunstein I ”), vacated, 48 F.4th 1236 (11th Cir.
2022) (en banc). In Hunstein I, the plaintiff alleged that a
collection agency had sent his personal information to a mailing
vendor to facilitate debt collection efforts. Id. at 1345. On the
issue of Article III standing, the Eleventh Circuit considered
Spokeo, Inc. v. Robins, in which the Supreme Court held that
“a plaintiff [does not] automatically satisf[y] the injury-in-fact
requirement whenever a statute grants a person a statutory right

6
and purports to authorize [a suit] to vindicate [it]” because
“Article III standing requires a concrete injury even in the
context of a statutory violation.” 578 U.S. at 341. Applying
Spokeo’s guidance, the Eleventh Circuit held that the injury
Hunstein alleged was intangible but was nonetheless
sufficiently concrete for Article III standing. Hunstein I, 994
F.3d at 1344, 1346. The court also concluded that Hunstein’s
allegations constituted a violation of section 1692c(b). Id. at
1344. That since-vacated decision led to a proliferation of
similar suits across the country. See, e.g., In re FDCPA Mailing
Vendor Cases, 551 F. Supp. 3d 57, 63 (E.D.N.Y. 2021) (“Each
case addressed herein invokes a recently-developed ‘mailing-
vendor’ theory . . . . These cases emanate from [Hunstein I].”);
Jackin v. Enhanced Recovery Co., 606 F. Supp. 3d 1031,
1034–35 (E.D. Wash. 2022).

Just two months after Hunstein I, the Supreme Court
decided TransUnion LLC v. Ramirez, 594 U.S. 413 (2021),
which built upon Spokeo and provided additional guidance to
courts seeking to determine whether an intangible harm
suffices as a concrete injury. Because TransUnion is key to
our decision today, we examine it in some detail here.

TransUnion was a class action suit seeking relief for
individuals allegedly harmed by a violation of the Fair Credit
Reporting Act (“FCRA”). A credit reporting agency mistakenly
added an alert to numerous consumers’ files indicating that
they were a “potential match” with individuals on a national
security threat list. Id. at 420. For most of the affected
consumers, the credit agency simply maintained alerts on
internal records without disseminating them. Id. at 421. But for
others, the agency distributed reports containing the erroneous
security alert to creditors. Id.

7
 Invoking Spokeo, the Court explained that intangible
harms can give rise to concrete injuries when they bear “a close
relationship to harms traditionally recognized as providing a
basis for lawsuits in American courts,” such as “reputational
harms, disclosure of private information, and intrusion upon
seclusion.” Id. at 425. But even though this inquiry requires
the identification of “a close historical or common-law
analogue for the[] asserted injury,” the Court clarified that
there need not be “an exact duplicate.” Id. at 424. And while
Congress may elevate certain harms to actionable legal status
through legislation, the Court stressed that Congress’s mere
creation of a statutory cause of action does not “automatically
satisf[y] the injury-in-fact requirement.” Id. at 426 (quoting
Spokeo, 578 U.S. at 341).

The TransUnion plaintiffs had sued, in relevant part,
under a FCRA provision that requires agencies to “follow
reasonable procedures to assure maximum possible accuracy
of the [consumer’s] information.” 15 U.S.C. § 1681e(b). The
plaintiffs contended that the erroneous security alerts bore a
“close relationship” to the traditional harm associated with the
tort of defamation. TransUnion, 594 U.S. at 432. The credit
agency countered by arguing that defamation required literal
falsity, whereas the alerts (which only denoted “potential
match[es]” with the threats list) were at most misleading. Id.
at 433.

The Supreme Court sided with the plaintiffs, explaining
that—in the context of a national security threats list—“the harm
from a misleading statement . . . b[ore] a sufficiently close
relationship to the harm from a false and defamatory statement.”
Id. (emphasis added). But because publication is “essential to
liability” in a defamation claim, only the plaintiffs whose

8
erroneous security alerts were actually disseminated to creditors
suffered concrete injuries for standing purposes. Id. at 434
(quoting Restatement (Second) of Torts § 577 cmt. a (1938)).
By contrast, the remaining plaintiffs, whose alerts were never
sent to third parties, lacked standing to sue. Id. (“The mere
presence of an inaccuracy in an internal credit file, if it is not
disclosed to a third party, causes no concrete harm.”), 437
(“[T]he [other] plaintiffs did not demonstrate that the risk of
future harm materialized . . . . Nor did those plaintiffs present
evidence that [they] were independently harmed by their
exposure to the risk itself[.]”).

In a footnote, the Court noted that the plaintiffs had
forfeited an argument that the credit agency had “‘published’
the class members’ information internally . . . to employees
within TransUnion and to the vendors that printed and sent the
mailings that the class members received.” Id. at 434 n.6. In
any event, the Court deemed the argument “unavailing” because
“[m]any American courts did not traditionally recognize intra-
company disclosures . . . for purposes of the tort of defamation”
and did not “necessarily recognize[] disclosures to printing
vendors as actionable publications.” Id. And even the courts
that traditionally did so required a showing that the defendant
“actually ‘brought an idea to the perception of another’” or that
the information “was actually read and not merely processed.”
Id. (quoting Restatement (Second) of Torts § 559 cmt. a); see
id. (explaining that a theory that “circumvents a fundamental
requirement of an ordinary defamation claim . . . does not bear
a sufficiently ‘close relationship’ to the traditional defamation
tort to qualify for Article III standing”).

Courts have interpreted TransUnion’s methodology in
different ways, as exemplified by the subsequent developments

9
in the Hunstein matter. The Eleventh Circuit reheard Hunstein
twice (first before the original panel (“Hunstein II ”), and then
en banc) before concluding that Hunstein’s alleged harm in his
mailing vendor case was not a concrete injury. Hunstein v.
Preferred Collection & Mgmt. Servs., Inc., 48 F.4th 1236, 1240
(11th Cir. 2022) (en banc) (“Hunstein III ”). The en banc court
focused on elements. It reasoned that an alleged intangible
harm is not closely related to a traditional harm if it is “missing
an element ‘essential to liability’ under the comparator tort.”
Id. at 1242. It then compared Hunstein’s alleged injury to the
traditional tort of public disclosure of private facts. It recounted
that Hunstein did not suggest in his complaint that the debt
collector’s communication “reached, or was sure to reach, the
public. Quite the opposite—the complaint describe[d] a
disclosure that reached a single intermediary, which then
passed the information back to Hunstein without sharing it
more broadly.” Id. at 1248. So the court held that Hunstein’s
allegations lacked publicity—an element “essential to liability.”
Id. at 1244.

The Hunstein III dissent, however, took issue with the
majority’s “element-for-element” approach. Id. at 1261
(Newsom, J., dissenting). The four dissenting judges viewed
that approach as a “dressed-up version of the very ‘exact
duplicate’ standard that the Supreme Court . . . flatly
disavowed.” Id. They reasoned that, because TransUnion held
that misleading information was “close enough” to false and
defamatory information, Hunstein’s “allegation of near
publicity[,] . . . (i.e., dissemination to an as-yet-unknown
number of employees)” was “close enough” to an allegation of
publicity. Id. at 1262.

10
 As an alternative to comparing elements, the Hunstein III
dissent embraced a “kind of harm” test, which would require a
plaintiff suing on a statutory cause of action to “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.” Id. at 1264. On that basis, the dissenting judges
would have concluded that Hunstein’s allegations (taken as
true and paired with all reasonable and favorable inferences)
were sufficient to show an injury in fact because Hunstein’s
injury was “close enough” to the kind of harm posed by
publicity under the common-law tort of public disclosure of
private facts, even if Hunstein’s harm did not rise to the same
degree of publicity-related harm. Id. at 1268–69.

A few months after Hunstein III, the Tenth Circuit
considered the FDCPA mailing vendor theory in Shields v.
Professional Bureau of Collections of Maryland, Inc., 55 F.4th
823 (10th Cir. 2022). The Tenth Circuit implicitly adopted the
kind-of-harm framework urged by the Hunstein III dissent, but
held that the plaintiff lacked standing. Shields, 55 F.4th at 829.
It stated that under TransUnion, “Shields did not have to plead
and prove the [common law] tort’s elements to prevail. But to
proceed, she had to at least allege a similar harm.” Id. The
court concluded that Shields’s assertion “that one private entity
(and, presumably, some of its employees) knew of her debt”
was “not the same kind of harm as public disclosure of private
facts.” Id.

After we heard oral argument in Barclift’s appeal, the
Seventh Circuit took a turn at deciding a FDCPA mailing vendor
case. Nabozny v. Optio Sols. LLC, 84 F.4th 731 (7th Cir. 2023).
It first used the element-based approach from Hunstein III and
held that the plaintiff’s “attempt to analogize her case to [the

11
tort of public disclosure of private facts] [fell] apart on the
threshold element of publicity.” Id. at 735 (citing Hunstein III,
48 F.4th at 1245–49). Because the plaintiff did not allege
publicity as that term is understood in traditional tort law, the
court concluded that she had not suffered an injury “analogous
to the harm at the core of the public-disclosure tort.” Id. at 736;
id. at 735 (“‘Publicity’ . . . means that the matter is 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.” (quoting Restatement
(Second) of Torts § 652D cmt. a)). The Seventh Circuit then
addressed the kind-or-degree question, stating that the
difference between public and private communication “is not
just a matter of numbers,” but when a private communication
is sent “with no expectation of further disclosure, it is not one
that is ‘sure to reach[] the public.’” Id. at 736 (alteration in
original) (quoting Restatement (Second) of Torts § 652D
cmt. a). Finally, it explained that “the harm at the core of the
public-disclosure tort” is “the humiliation that accompanies the
disclosure of sensitive or scandalizing private information to
public scrutiny.” Id. So “[w]ithout a public-exposure
component,” the plaintiff’s alleged harm was not analogous.
Id.

In sum, judges on our sister circuits have interpreted
TransUnion in two different ways. Some espouse an element-
based approach, wherein a plaintiff’s alleged harm must not
lack any element of the comparator tort that was essential to
liability at common law. E.g., Hunstein III, 48 F.4th at 1244–
45; see Element, Black’s Law Dictionary (11th ed. 2019)
(defining “element” as “[a] constituent part of a claim that must
be proved for the claim to succeed”). Others compare the kind
of harm a plaintiff alleges with the kind of harm caused by the

12
comparator tort. E.g., Shields, 55 F.4th at 829. We view the
second method as more faithful to TransUnion.

To determine the “concreteness” of intangible injuries,
TransUnion instructs us to ask “whether the asserted harm has
a ‘close relationship’ to a harm traditionally recognized as
providing a basis for a lawsuit in American courts—such as
physical harm, monetary harm, or various intangible harms
including (as relevant here) reputational harm.” 594 U.S. at
417. TransUnion speaks only of harms, not elements. Indeed,
the word “element” does not appear once in the body of the
TransUnion opinion. We believe that if the Court wanted us
to compare elements, it would have simply said so.2 So when
asking whether a plaintiff’s intangible injury is “concrete,” we
will examine the kind of harm at issue.

B

Applying our interpretation of TransUnion to Barclift’s
allegations, we conclude that she cannot establish standing for
her claim. She cannot demonstrate that the injury resulting from
Keystone’s communication of her personal information to a
third-party mailing vendor bears a close relationship to a harm

2
It has done so in other contexts. See, e.g., United States v. Dixon,
509 U.S. 688, 696–97 (1993) (referring to the Blockburger test
for double jeopardy as a “same-elements test” (citing Blockburger
v. United States, 284 U.S. 299, 304 (1932))); cf. Descamps v.
United States, 570 U.S. 254, 260–61 (2013) (describing the
“categorical approach” to determining whether a state crime
qualifies for a federal sentencing enhancement, which requires
courts to ask whether the state crime “has the same elements as
the ‘generic’ [federal] crime”).

13
traditionally recognized by American courts. See TransUnion,
594 U.S. at 417.

At common law, actionable invasions of privacy are
typically categorized into four separate torts: intrusion upon
seclusion, appropriation of name or likeness, unreasonable
publicity given to another’s private life, and false light. See
Restatement (Second) of Torts § 652A; see also Nabozny, 84
F.4th at 735. The traditional harm that Barclift analogizes to
lies at the heart of the unreasonable publicity given to another’s
private life, which is also known as the public disclosure of
private information.3 A defendant is liable under this tort when
he “gives publicity to a matter concerning the private life of
another . . . if the matter publicized is of a kind that (a) would

3
The dissent accepts Barclift’s argument that “breach of
confidence” is also a common-law analogue for her alleged
harm. Dissenting Op. at 15–16 & n.13. But we hesitate to
conclude that the harm associated with a breach of confidence
bears a “close relationship to a harm traditionally recognized
as providing a basis for a lawsuit in American courts.”
TransUnion, 594 U.S. at 440. As Vickery (cited by Barclift
and the dissent) writes, breach of confidence law in the United
States is not a “traditional theor[y] of liability”—rather, it was
“emerging” and “still rudimentary” in the 1980s. Alan B.
Vickery, Breach of Confidence: An Emerging Tort, 82 Colum.
L. Rev. 1426, 1426, 1451 (1982). Although it was mentioned
in some texts much earlier, it “died out in its infancy,” likely
due to the “birth and explosive growth” of traditional privacy
torts such as the public disclosure of private facts. Id. at 1454–
55; see Young v. U.S. Dep’t of Just., 882 F.2d 633, 640 (2d Cir.
1989) (describing breach of confidence as “a relative newcomer
to the tort family”).

14
be highly offensive to a reasonable person, and (b) is not of
legitimate concern to the public.” Restatement (Second) of
Torts § 652D. The harm caused by this tort is “the humiliation
that accompanies the disclosure of sensitive or scandalizing
private information to public scrutiny.” Nabozny, 84 F.4th at
736; see also Jenkins v. Dell Publ’g Co., 251 F.2d 447, 450 (3d
Cir. 1958) (explaining that privacy torts provide legal relief for
“the embarrassment, humiliation[,] or other injury which may
result from public disclosure concerning his personality or
experiences”). The harm stems from both the offensive
character of the information and its disclosure to the public.

Here, Barclift alleged that Keystone transmitted her
information to RevSpring for one purpose: “to fashion, print,
and mail debt collection letters.” Appx. 39. She also alleged
that she was “embarrassed and distressed” by the disclosure to
RevSpring. Appx. 46. But she did not allege that anyone
outside of Keystone or RevSpring accessed her personal
information. In short, she alleged that Keystone transmitted
her personal information to “a single ministerial intermediary,”
Nabozny, 84 F.4th at 736, causing her embarrassment.

While Barclift does not need to “exact[ly] duplicate” a
traditionally recognized harm, TransUnion, 594 U.S. at 433,
she must still analogize to a harm “of the same character of
previously existing ‘legally cognizable injuries,’” Kamal v. J.
Crew Grp., Inc., 918 F.3d 102, 114 (3d Cir. 2019) (quoting
Susinno v. Work Out World Inc., 862 F.3d 346, 352 (3d Cir.
2017)). Like our sister circuits, we conclude that the harm
from disclosures that remain functionally internal are not
closely related to those stemming from public ones. See Shields,
55 F.4th at 829 (“Shields’s alleged harm was that one private
entity (and, presumably, some of its employees) knew of her

15
debt. That is not the same kind of harm as public disclosure of
private facts, which is concerned with highly offensive
information being widely known.”). When the communication
of personal information only occurs between a debt collector
and an intermediary tasked with contacting the consumer, the
consumer has not suffered the kind of privacy harm traditionally
associated with public disclosure.4

Our conclusion comports with the Supreme Court’s
observations (in dicta) from TransUnion about the internal
publication of consumer data. While TransUnion compared
FCRA violations to the traditional harms of defamation, the
same logic applies here. The Court found unavailing plaintiffs’
unpreserved argument that their information had been
“published . . . internally . . . to employees within [the credit
reporting agency] and to the vendors that printed and sent the
mailings that the class members received.” TransUnion, 594
U.S. at 434 n.6 (quotation marks omitted). The Court stated
that American courts generally have not recognized “disclosures
to printing vendors as actionable publications,” and that harms
associated with “internal publication . . . do[] not bear a

4
We acknowledge that there is overlap between the nature of
the traditional harm (humiliation stemming from the public
disclosure of offensive information) and an element of the
traditional tort (publicity). This is because a disclosure that
remains nonpublic is unlikely to result in the type of
humiliation associated with the traditional injury. Despite this
overlap, and in accordance with the Supreme Court’s directive
in TransUnion, we focus our inquiry solely on the harm. And
even though that inquiry necessarily considers whether a
disclosure is “public” (for lack of a better term), our approach
is not an exercise in element-matching.

16
sufficiently ‘close relationship’” to defamation harms for
standing purposes. Id. While this rationale is not binding, we
believe it would apply to the mailing vendor theory claims
here.5 If there are no grounds to believe that the information

5
Indeed, numerous early twentieth century courts held that
communications to an associate in the ordinary course of
business did not support an action at common law. For example,
in Chalkley v. Atlantic Coast Line Railroad Co., 143 S.E. 631
(Va. 1928), the Supreme Court of Virginia observed that
in many cases the modern and more liberal rule is
applied, i.e., that where the communication of the
libelous matter to the plaintiff is in the customary
and usual course of the business of the defendant,
in the discharge of an ordinary business duty, and
is merely dictated to a stenographer, or copyist,
who is charged with the duty of transcribing it,
this is not such a publication of the alleged libel
as will support an action.
143 S.E. at 638. See also Globe Furniture Co. v. Wright, 265 F.
873, 874–76 (D.C. Cir. 1920) (collecting cases); Beck v. Oden,
13 S.E.2d 468, 471 (Ga. Ct. App. 1941) (“The more liberal rule,
and the one which seemingly has the support of the weight of
modern authority, is that, where the communication is made to
a servant or business associate in the ordinary or natural course
of business, there is no actionable libel.”); Rodgers v. Wise, 7
S.E.2d 517, 519 (S.C. 1940) (“This case seems to me to set out
the sounder and more logical view [that] where a letter is
dictated by a business man to his stenographer,” the “cause of

(continued on next page)

17
action . . . fail[s] as a matter of law to allege a publication of the
slanderous and libelous statements[.]”); Cartwright-Caps Co.
v. Fischel & Kaufman, 74 So. 278, 279–80 (Miss. 1917) (“It is
inconceivable how the business of the country . . . can be carried
on, if a business man or corporation must be subject to litigation
for every letter containing some statement too strong, where it
is only sent to the person to whom directed, and only heard by
a stenographer to whom the letter is dictated.”); Owen v. Ogilvie
Publ’g Co., 53 N.Y.S. 1033, 1034 (App. Div. 1898) (“The
writing and the copying were but parts of one act; i.e. the
production of the letter. Under such conditions we think the
dictation, copying, and mailing are to be treated as only one act
of the corporation; and . . . there was no publication of the
letter[.]”); Central of Ga. Ry. Co. v. Jones, 89 S.E. 429, 429
(Ga. Ct. App. 1916) (following Owen); Nichols v. Eaton, 81
N.W. 792, 793 (Iowa 1900) (“One may make a publication to
his servant or agent, without liability, which, if made to a
stranger, would be actionable.”).
The dissent posits that the TransUnion Court cited Ostrowe
v. Lee in footnote 6 “to illustrate the meaning of publication.”
Dissenting Op. at 21. In Ostrowe, the New York Court of
Appeals held that dictating a letter to a stenographer qualified
as “publication” for defamation purposes because the contents
of the letter had been read by someone other than the defamed
person. 175 N.E. 505, 505 (N.Y. 1931). In the dissent’s view,
“RevSpring is the modern stenographer,” Dissenting Op. at 24,
and Barclift’s allegations are enough to suggest that her
information was “read and not merely processed.” TransUnion,
594 U.S. at 434 n.6.

(continued on next page)

18
will result in humiliation, then there is no comparable harm
under TransUnion.6

Finally, Barclift cannot show that she has suffered a
concrete injury due to anticipated harm. As a general matter,
“[a]llegations of ‘possible future injury’ are not sufficient to
satisfy Article III” in a suit for damages. Reilly v. Ceridian
Corp., 664 F.3d 38, 42 (3d Cir. 2011) (quoting Whitmore v.
Arkansas, 495 U.S. 149, 158 (1990)); see TransUnion, 594
U.S. at 437 (“Spokeo did not hold that the mere risk of future
harm, without more, suffices to demonstrate Article III standing
in a suit for damages.”). For a material risk of future harm to be
concrete, a plaintiff must show that she was “independently

We agree that Barclift’s allegations plausibly support an
inference that Keystone caused someone at RevSpring to read
(and not merely process) information about Barclift’s alleged
debt. But, in light of the authority mentioned above, we are not
convinced that this inference or the Supreme Court’s citation to
Ostrowe means that Barclift’s harm bears a close relationship
to one that was actionable at common law.
6
Our view also aligns with Congress’s intent in enacting the
FDCPA. As Congress explained, the Act’s “purpose is to protect
consumers from a host of unfair, harassing, and deceptive debt
collection practices without imposing unnecessary restrictions
on ethical debt collectors.” S. Rep. No. 95-382, at 1 (1977).
With limited exceptions, the Act prevents debt collectors from
“contact[ing] third persons such as a consumer’s friends,
neighbors, relatives, or employer” because “[s]uch contacts are
not legitimate collection practices and result in serious invasions
of privacy.” S. Rep. No. 95-382, at 4 (emphasis added). Using
a mailing vendor to contact a consumer in a legitimate attempt
to collect a debt is not a practice the statute was meant to prohibit.

19
harmed by [her] exposure to the risk itself.” TransUnion, 594
U.S. at 437. In TransUnion, it was not enough that “[the credit
report company] could have divulged [the plaintiffs’] misleading
credit information to a third party at any moment.” Id. at 438.
Similarly, the mere assertion that RevSpring’s employees
could access and broadcast Barclift’s personal information to
the public is far too speculative to support standing. And even
though RevSpring suffered a prior data breach in 2014, Barclift
has not alleged facts supporting an inference of “a sufficient
likelihood that [RevSpring] would . . . intentionally or
accidentally release [her] information to third parties.” Id.
Without an actual, materialized injury, “we cannot simply
presume a material risk of concrete harm” absent a “serious
likelihood of disclosure.” Id. (quoting Ramirez v. TransUnion,
951 F.3d 1008, 1040 (9th Cir. 2020) (McKeown, J., concurring
in part and dissenting in part)).7

In sum, the type of injury Barclift alleged “is not
remotely analogous to the harm caused by the tortious public
dissemination of sensitive facts about another’s private life.”
Nabozny, 84 F.4th at 737–38 (emphasis omitted). Information
transmission that neither travels beyond a private intermediary
nor creates a sufficient likelihood of external dissemination
cannot compare to a traditionally recognized harm that depends
on the humiliating effects of public disclosure. Therefore, we

7
Of course, if RevSpring were to mistakenly release someone’s
personal information in the future, that person could have a
cause of action. Cf. Clemens v. ExecuPharm Inc., 48 F.4th 146,
155 (3d Cir. 2022) (holding, in the data breach context, that an
alleged harm was sufficiently concrete because, among other
things, there was actual “exposure of personally identifying
information” on the dark web).

20
conclude that Barclift lacks a concrete injury and cannot
establish Article III standing.

C

Although the District Court correctly held that Barclift
lacked a concrete injury, it erred in dismissing her complaint
with prejudice. “Because the absence of standing leaves the
court without subject matter jurisdiction to reach a decision on
the merits, dismissals ‘with prejudice’ for lack of standing are
generally improper.” Cottrell v. Alcon Lab’ys, 874 F.3d 154,
164 n.7 (3d Cir. 2017). That general rule applies here, so we
will modify the District Court’s order to dismiss the complaint
without prejudice and affirm that order as modified.

* * *

For the foregoing reasons, we will modify the District
Court’s order to dismiss the complaint without prejudice and
affirm the order as modified.

21
MATEY, Circuit Judge, concurring in part, dissenting in part,
and dissenting in the judgment.

“Standing” is a term found in every first-year law school
outline, but absent from the text of the Constitution, Founding-
era discussions, English and Roman history, and the reported
decisions of our federal courts throughout most of the twentieth
century. Ever shifting, the judicially created standard of
modern standing confuses courts, commentators, and plaintiffs
like Paulette Barclift who are told their claim is insufficiently
“concrete” to decide. Barclift says Keystone Credit Services
shared private information about her physical and financial
health with “an untold number of individuals” at a mailing
facility close to her home. App. 62. Can she file a lawsuit for
her alleged harms? Congress said yes, inserting a private right
of action in the Fair Debt Collection Practices Act (FDCPA).
And the Supreme Court has explained that the “disclosure of
private information” has been “traditionally recognized as
providing a basis for lawsuits in American courts.”
TransUnion LLC v. Ramirez, 594 U.S. 413, 425 (2021). I
conclude that Barclift’s “intangible harms” are sufficiently
“concrete” for standing because they bear “a close relationship
to harms traditionally recognized as providing a basis for
lawsuits in American courts.” Id.

But Barclift loses because the majority treats
TransUnion’s footnote six as talismanic, turning dictum into
precedent and, along the way, adopting the jot-for-jot reading
of caselaw that the majority’s opinion purports to reject.
Respectfully, I cannot pour that much meaning into a note,
particularly where the result only adds to the incoherence of
modern standing. So I dissent in part and in the judgment
because, while standing “needs a rewrite,” as the requirement
stands, Paulette Barclift is due her day in court. Id. at 461
(Kagan, J., dissenting).1

1
See also, e.g., TransUnion, 594 U.S. at 442 (Thomas,
J., dissenting); Sierra v. City of Hallandale Beach, 996 F.3d
1110, 1115 (11th Cir. 2021) (Newsom, J., concurring);
Muransky v. Godiva Chocolatier, Inc., 979 F.3d 917, 971 (11th
Cir. 2020) (en banc) (Jordan, J., dissenting); Springer v.
 I.

The majority surveys circuit caselaw, catalogues the
divergent approaches, and selects a test that compares the harm
a plaintiff asserts to a harm that traditionally provided a basis
to sue in American courts to determine whether an intangible
injury is concrete. I agree that conclusion is the best reading of
TransUnion, even if a natural reading of the FDCPA and
Article III make that difficult detour unnecessary.2 I write
separately to explain how the wandering began.

A. Article III provides that “[t]he judicial Power
shall extend to all Cases, in Law and Equity, arising
under . . . the Laws of the United States, . . . .” U.S. Const. art.
III, § 2 (emphasis added). Text that places no limits on either
the judicial power to hear cases or on the legislative power to
create causes of action under the laws of the United States. It
seems to allow all suits arising under federal law.

Barclift’s suit arises under the FDCPA, which prohibits
a “debt collector” from “communicat[ing], 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 FDCPA includes a private right of action
against debt collectors. See id. § 1692k(d) (“An action to
enforce any liability created by [the FDCPA] may be brought

Cleveland Clinic Emp. Health Plan Total Care, 900 F.3d 284,
290 (6th Cir. 2018) (Thapar, J., concurring); Erwin
Chemerinsky, What’s Standing After TransUnion LLC v.
Ramirez, 96 N.Y.U. L. Rev. Online 269, 286–91 (2021);
Daniel J. Solove & Danielle Keats Citron, Standing and
Privacy Harms: A Critique of TransUnion v. Ramirez, 101
B.U. L. Rev. Online 62, 66–68 (2021); cf. Ernest A. Young,
Standing, Equity, and Injury in Fact, 97 Notre Dame L. Rev.
1885 (2022).
2
See Fogle v. Sokol, 957 F.3d 148, 165 (3d Cir. 2020)
(Even where a doctrine “exceeds both [its] historic scope and
the statutory text, we cannot use the original meaning of a
statute as a ‘makeweight’ against precedent, nor hand-pick
binding decisions to follow.” (citation omitted)).
2
in any appropriate United States district court . . . .”). If the text
of Article III is the gate, Barclift’s complaint says enough to
walk through the doors of the federal courts. History confirms
this unfussy understanding that Barclift’s suit under the
FDCPA constitutes a “case” under Article III.3 Given the many
thoughtful discussions on this subject, see supra note 1, a
summary of standing will suffice.

1. Pre-Founding and early American jurists never
used the term “standing” or required an injury in fact or special
damage when a private party sued to enforce a private right. 4

3
As originally understood, a “controversy” was thought
to include fewer matters within its realm than did a “case.” See
Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 431–32 (1793)
(Iredell, J.) (“The [Judiciary Act of 1789] more particularly
mentions civil controversies, a qualification of the general
word in the Constitution, which I do not doubt every
reasonable man will think well warranted, for it cannot be
presumed that the general word ‘controversies’ was intended
to include any proceedings that relate to criminal cases, which
in all instances that respect the same Government, only, are
uniformly considered of a local nature, and to be decided by its
particular laws. The word ‘controversy’ indeed, would not
naturally justify any such construction, but nevertheless it was
perhaps a proper instance of caution in Congress to guard
against the possibility of it.”); see also In re Pac. Ry. Comm’n,
32 F. 241, 255 (C.C.N.D. Cal. 1887) (Field, J.) (“The judicial
article of the constitution mentions cases and controversies.
The term ‘controversies,’ if distinguishable at all from ‘cases,’
is so in that it is less comprehensive than the latter, and includes
only suits of a civil nature.” (quoting Chisholm, 2 U.S. (2 Dall.)
at 431–32)).
4
To the contrary, “[t]he word standing is rather recent
in the basic judicial vocabulary and does not appear to have
been commonly used until the middle of [the twentieth]
century.” Joseph Vining, Legal Identity: The Coming of Age
of Public Law 55 (1978). Earlier judicial systems, well known
to lawyers of the Founding era, used the phrase stare in
iudicium (“to stand in court”) to describe a person’s
“membership or position in a community” able to sue and be
sued “separate from and largely independent of issues related

3
“Historically, common-law courts possessed broad power to
adjudicate suits involving the alleged violation of private
rights, even when plaintiffs alleged only the violation of those
rights and nothing more.” Spokeo, Inc. v. Robins, 578 U.S. 330,
344 (2016) (Thomas, J., concurring); see also Muransky v.
Godiva Chocolatier, Inc., 979 F.3d 917, 971 (11th Cir. 2020)
(en banc) (Jordan, J., dissenting) (“English courts at common
law heard suits involving private rights, regardless of whether
the plaintiff suffered actual damage, . . . .”). Instead, “the
English practice was to allow strangers to have standing in the
many cases involving the ancient prerogative writs. . . . There
were other English precedents for the citizen suit. In the
seventeenth and eighteenth centuries, mandamus was available
in England, even at the behest of strangers.” Cass R. Sunstein,
What’s Standing After Lujan? Of Citizen Suits, “Injuries,” and
Article III, 91 Mich. L. Rev. 163, 171–72 (1992). Factual
injury on top of legal injury was not a component of a
completely pled complaint. See, e.g., 3 William Blackstone,
Commentaries *120 (explaining suits for assault could be
brought even when “no actual suffering is proved” and for
battery whether “accompanied with pain . . . [or] attended with
none”).

The Framers wrote Article III against this backdrop.
Federal question jurisdiction appeared at the Constitutional
Convention in the Virginia Plan, broadly authorizing federal
courts to hear “questions which may involve the national peace
and harmony.” James Madison, Resolutions Proposed by Mr.
Randolph in Convention (May 29, 1787), in 1 The Records of
the Federal Convention of 1787, at 22 (Max Farrand ed., 1911).
The Committee of Detail removed the reference to “national
peace and harmony” but preserved jurisdiction over “cases
arising under laws passed by the Legislature of the United
States.” James Madison, Mr. Randolph’s Delivery of the
Report of the Committee of Detail (Aug. 6, 1787), in 2 The
Records of the Federal Convention of 1787, supra, at 186. Few
additional changes followed. And when the Committee of

to the merits of the lawsuit.” Neil H. Cogan, “Standing” Before
the Constitution: Membership in the Community, 7 L. & Hist.
Rev. 1, 1–2 (1989) (tracing the meaning of standing through
Roman to European sources familiar to American lawyers of
the late 1700s).
4
Style reported to the Convention in September 1787, the
proposed federal judicial power extended “to all cases, both in
law and equity, arising under this constitution, the laws of the
United States, and treaties made, or which shall be made, under
their authority.” Report of Committee of Style, in 2 The
Records of the Federal Convention of 1787, supra, at 600.

That troubled George Mason, who voiced concern that
there would be no “limitation whatsoever, with respect to the
nature or jurisdiction of [the federal] Courts.” George Mason,
Speech to the Virginia Convention (June 19, 1788), in 10 The
Documentary History of the Ratification of the Constitution:
Ratification of the Constitution by the States: Virginia, No. 3,
at 1401 (John P. Kaminski & Gaspare J. Saladino eds., 1993).
Responding, James Madison agreed that “it is so necessary and
expedient that the Judicial power [of the national government]
should correspond with the Legislative” and saw no problems
posed by a broad judicial power. James Madison, Speech to the
Virginia Convention (June 20, 1788), in The Documentary
History of the Ratification of the Constitution: Ratification of
the Constitution by the States: Virginia, No. 3, supra, at 1413.
Neither Madison’s nor Mason’s writings, nor other Founding-
era records, mention standing, the now-canonical injury-in-fact
requirement, or anything else that would restrict Congress’s
power to create judicially enforceable rights.

Giants of the early American judiciary agreed,
understanding Article III to confer broad power.5 “It was also

5
See, e.g., 3 Joseph Story, Commentaries on the
Constitution of the United States § 1640, at 507 (1833) (“A
case, then, in the sense of this clause of the constitution, arises,
when some subject, touching the constitution, laws, or treaties
of the United States, is submitted to the courts by a party, who
asserts his rights in the form prescribed by law. In other words,
a case is a suit in law or equity, instituted according to the
regular course of judicial proceedings; and, when it involves
any question arising under the constitution, laws, or treaties of
the United States, it is within the judicial power confided to the
Union.” (footnote omitted)); Osborn v. Bank of U.S., 22 U.S.
(9 Wheat.) 738, 819 (1824) (Marshall, J.) (“[Article III,
Section 2] enables the judicial department to receive

5
understood that Congress could create private rights by statute
and that a plaintiff could sue based on a violation of that
statutory right without regard to actual damages.” Muransky,
979 F.3d at 971 (Jordan, J., dissenting) (citing Thomas M.
Cooley, A Treatise on the Law of Torts or the Wrongs Which
Arise Independent of Contract 271 (2d ed. 1888)); see also
Webb v. Portland Mfg. Co., 29 F. Cas. 506, 509 (C.C.D. Me.
1838) (Story, J.) (“[E]very violation imports damage; and if no
other be proved, the plaintiff is entitled to a verdict for nominal
damages.”). Take the 1790 Copyright Act, which allowed
patent holders to sue for damages those infringing on the
patent, even in the absence of monetary loss. See Act of May
31, 1790, ch. 15, § 2, 1 Stat. 124, 124–25.

jurisdiction to the full extent of the constitution, laws, and
treaties of the United States, when any question respecting
them shall assume such a form that the judicial power is
capable of acting on it. That power is capable of acting only
when the subject is submitted to it by a party who asserts his
rights in the form prescribed by law. It then becomes a case,
and the constitution declares, that the judicial power shall
extend to all cases arising under the constitution, laws, and
treaties of the United States.”).
The text of Article III supports this view. “Cases”
extends “to all the cases described, without making in its terms
any exception whatever, and without any regard to the
condition of the party. If there be any exception, it is to be
implied against the express words of the article.” Cohens v.
Virginia, 19 U.S. (6 Wheat.) 264, 378 (1821) (Marshall, J.).
“Controvers[y],” by contrast, “depends entirely on the
character of the parties,” and if the parties asserting the
controversy match those listed in Article III—“to which the
United States shall be a Party,” “between two or more States,”
“between a State and Citizens of another State,” “between
Citizens of different States,” “between Citizens of the same
State claiming Lands under Grants of different States,” and
“between a State, or the Citizens thereof, and foreign States,
Citizens or Subjects,” U.S. Const. art. III, § 2—“it is entirely
unimportant what may be the subject of the controversy. Be it
what it may, these parties have a constitutional right to come
into the Courts of the Union.” Cohens, 19 U.S. (6 Wheat.) at
378.
6
 The factual injury requirement appeared only when a
private individual sued to enforce a public right.6 “Repeated
attempts of private litigants to obtain a special stake in public
rights have been consistently denied.” Scripps-Howard Radio
v. F.C.C., 316 U.S. 4, 20 (1942) (Douglas, J., dissenting)
(collecting cases). If an individual sued over a public nuisance,
for example, the person had to allege the violation caused them
“some extraordinary damage, beyond the rest of the
[community].” 3 Blackstone, Commentaries *220; see also
Ann Woolhandler & Caleb Nelson, Does History Defeat
Standing Doctrine?, 102 Mich. L. Rev. 689, 703 (2004) (“To
be sure, when a public nuisance was threatening special injury
to a private plaintiff and the plaintiff was able to win an
injunction against the nuisance, the same remedy that protected
the plaintiff against private harm also benefited the public as a
whole. As a conceptual matter, however, this benefit to the
public was ‘incidental[]’; the private plaintiff was not thought
of as representing the public, but rather as protecting his own
private interest.” (alteration in original) (quoting Sparhawk v.
Union Passenger Ry. Co., 54 Pa. 401, 422 (1867))).

That is the original understanding of Article III, and
“courts for centuries held that injury in law to a private right
was enough to create a case or controversy.” TransUnion, 594
U.S. at 449 (Thomas, J., dissenting). For most of American
history, if Barclift sued as a private individual to enforce a
private right created by Congress, her case would be heard

6
See TransUnion, 594 U.S. at 447 (Thomas, J.,
dissenting) (“But where an individual sued based on the
violation of a duty owed broadly to the whole community, such
as overgrazing of public lands, courts required ‘not only injuria
[legal injury] but also damnum [damage].’” (alterations in
original) (citation omitted)); see also Caleb Nelson,
Adjudication in the Political Branches, 107 Colum. L. Rev.
559, 562 (2007) (“Throughout our history, standing doctrine
has raised no bar to private litigants with individualized legal
interests. At least in the absence of public authorization,
however, American courts have generally refused to entertain
private lawsuits about matters in which the whole body politic
was concerned and in which every individual had the same
legal stake. From the early Republic on, such matters were
controlled instead by the political branches.”).
7
without any obligation to make a threshold showing of factual
injury.7

2. So what happened? The emergence of new
federal agencies started to shift the landscape, although the
public-private rights distinction continued without
interruption. The idea, born from the minds of jurists like
Brandeis and Frankfurter,8 was “to insulate the nascent
regulatory state from legal challenge. A strict requirement of
legal injury fit well with efforts to limit challenges by regulated
entities, which would generally be able to show factual costs
from government action but often lacked either protected legal
interests or established rights to sue.” Ernest A. Young,
Standing, Equity, and Injury in Fact, 97 Notre Dame L. Rev.
1885, 1890–91 (2022).9 The Court formally introduced the
concept of “injury in fact” in Association of Data Processing

7
See Adrian Vermeule, Common Good
Constitutionalism 177 (2022) (“Until roughly the 1970s, the
‘injury in fact’ test in its current signification was no part of
our law.”).
8
See Coleman v. Miller, 307 U.S. 433, 460 (1939)
(Frankfurter, J., concurring) (advancing the claim that the
“[j]udicial power could come into play only in matters that
were the traditional concern of the courts at Westminster and
only if they arose in ways that to the expert feel of lawyers
constituted ‘Cases’ or ‘Controversies’”).
9
Like most scholarly explanations, this “insulation
thesis” has its challengers. But there seems to be a consensus
that expanded executive administration brought the discussion
of standing to center stage. See Daniel E. Ho & Erica L. Ross,
Did Liberal Justices Invent the Standing Doctrine? An
Empirical Study of the Evolution of Standing, 1921–2006, 62
Stan. L. Rev. 591, 604–07 (2010). As Judge Fletcher reasoned,
“private entities increasingly came to be controlled by statutory
and regulatory duties” while “government increasingly came
to be controlled by statutory and constitutional commands.”
William A. Fletcher, The Structure of Standing, 98 Yale L.J.
221, 225 (1988). When “individuals sought to control the
greatly augmented power of the government through the
judicial process, many kinds of plaintiffs and would-be
plaintiffs sought the articulation and enforcement of new and
existing rights in the federal courts.” Id.
8
Organizations v. Camp, when it held that, in the context of the
Administrative Procedure Act (APA), the plaintiff needed only
to allege an “injury in fact, economic or otherwise” to sue
under the APA. 397 U.S. 150, 152 (1970).10 The Court added
that “[t]he question of standing is different” from a test that
looks to the plaintiff’s legal interest, which “goes to the
merits.” Id. at 153. Rather, standing “concerns, apart from the
‘case’ or ‘controversy’ test, the question whether the interest
sought to be protected by the complainant is arguably within
the zone of interests to be protected or regulated by the statute
or constitutional guarantee in question. Thus the [APA] grants
standing to a person ‘aggrieved by agency action within the
meaning of a relevant statute.’” Id. (quoting 5 U.S.C. § 702).
“Instead of a careful examination of the governing law to see
if Congress had created a legal interest, the standing inquiry
would be a simple one barely related to the underlying law.
Henceforth the issue would turn on facts, not on law.”
Sunstein, supra, at 185. “Under the New Deal view, the
common law was a regulatory system that should be evaluated
pragmatically, in terms of whether it served human liberty and
welfare. When it failed to do so, the system had to be
supplemented or replaced.” Id. at 187.

Standing’s political valence shifted to an indirect limit
on congressional power (ignoring, among other options, a fresh
examination on the meaning of Article I, Section 8, Clause 3
of the Constitution). In 1983, then-Judge Scalia published an
article explaining his view that “[t]he requirement of standing
has been made part of American constitutional law through (for
want of a better vehicle) the provision of Art. III, Sec. 2.”
Antonin Scalia, The Doctrine of Standing as an Essential
Element of the Separation of Powers, 17 Suffolk U. L. Rev.
881, 882 (1983). He went on: “[t]here is no case or controversy,
the reasoning has gone, when there are no adverse parties with
personal interest in the matter. Surely not a linguistically
inevitable conclusion, but nonetheless an accurate description

10
On the same day, the Court applied its new injury-in-
fact requirement to another APA challenge. See Barlow v.
Collins, 397 U.S. 159, 163–64 (1970); see also Sunstein,
supra, at 185–86 (tracing “injury in fact” to Kenneth Culp
Davis’s analysis of the APA (citing 3 Kenneth C. Davis,
Administrative Law Treatise § 22.02, at 211–13 (1958))).
9
of the sort of business courts had traditionally entertained, and
hence of the distinctive business to which they were
presumably to be limited under the Constitution.” Id. (footnote
omitted). He described the notion that Congress may create
legal rights as “a peculiar characteristic of standing.” Id. at 885.
But he was bothered by Congress’s control over the creation of
legal rights given the increasing power of the regulatory state.
With little discussion of constitutional text or history, Judge
Scalia concluded that “the judicial doctrine of standing is a
crucial and inseparable element of [the principle of separation
of powers], whose disregard will inevitably produce . . . an
overjudicialization of the process of self-governance.” Id. at
881.

In 1992, Justice Scalia penned the modern-day test for
standing in Lujan v. Defenders of Wildlife, establishing the
atextual tripart test for determining whether a party has
standing to bring suit. See 504 U.S. 555, 560–61 (1992). The
broad, sweeping language of Lujan did not apply only in the
public rights category, though the result, by happenstance,
remained consistent with the historical public-private rights
distinction.11 Ever since, the Court has continued to march
down Lujan’s path, while neglecting to engage with the public-
private rights distinction.

3. Bringing us to TransUnion. That decision
marked the first time the Supreme Court required a private
individual to make some threshold showing of concrete harm,

11
The standing issue was teed up for the Court by the
parties’ briefs and the district and appellate court decisions that
preceded it. But even those arguments were colored with
uncertainty about the meaning or scope of standing. Prior to
the Supreme Court’s review, the Eighth Circuit observed that
“[t]he doctrines that stem from Article III, such as standing,
mootness, ripeness, and political question, relate ‘to an idea,
which is more than an intuition but less than a rigorous and
explicit theory, about the constitutional and prudential limits to
the powers of an unelected, unrepresentative judiciary in our
kind of government.’” Defs. of Wildlife v. Hodel, 851 F.2d
1035, 1038 (8th Cir. 1988) (quoting Vander Jagt v. O’Neill,
699 F.2d 1166, 1178–79 (D.C. Cir. 1982) (Bork, J.,
concurring)).
10
even though he was seeking to vindicate a private right. See
594 U.S. at 453–54 (Thomas, J., dissenting) (“Never before has
this Court declared that legal injury is inherently insufficient to
support standing.”); see also Muransky, 979 F.3d at 978–79
(Jordan, J., dissenting) (finding no “contemporary Supreme
Court case in which a plaintiff had a private statutory right but
was denied standing”). And the yardstick chosen to measure
concreteness—the close-relationship test—swapped the text
and history of Article III for unspecified and undetermined
markers in American “history and tradition.” TransUnion, 594
U.S. at 424 (majority opinion). A plaintiff’s allegations need
not “exact[ly] duplicate” the elements of a common law cause
of action, only resemble the “harm[s] associated with” those
causes of action. Id. at 432–33.

This illustrates a judicial test
“displac[ing] . . . controlling, nonjudicial, primary texts.” OI
Eur. Grp. B.V. v. Bolivarian Republic of Venez., 73 F.4th 157,
175 n.22 (3d Cir. 2023) (citation omitted); see also Peter
Bozzo, Note, The Jurisprudence of “As Though”: Democratic
Dialogue and the Signed Supreme Court Opinion, 26 Yale J.L.
& Human. 269, 289 (2014) (Judicial “tests often take on a life
of their own, displacing the [source of law] from which they
are drawn.”). Leaving us to work with only a “metaphor for the
law” instead of the law itself. Mitchel de S.-O.-l’E. Lasser,
“Lit. Theory” Put to the Test: A Comparative Literary Analysis
of American Judicial Tests and French Judicial Discourse, 111
Harv. L. Rev. 689, 768 (1998)).

But work with the shadow we must, for “unless we wish
anarchy to prevail within the federal judicial system,”
precedent must be followed “by the lower federal courts no
matter how misguided the judges of those courts may think it
to be.” Hutto v. Davis, 454 U.S. 370, 375 (1982) (per curiam).
So I move to the best reading of TransUnion.

II.

TransUnion’s close-relationship test starts from the
premise that “Article III confines the federal judicial power to
the resolution of ‘Cases’ and ‘Controversies.’” TransUnion,
594 U.S. at 423. “For there to be a case or controversy under
Article III, the plaintiff must have a ‘personal stake’ in the
case—in other words, standing.” Id. (quoting Raines v. Byrd,
11
521 U.S. 811, 819 (1997)). And to establish standing, “a
plaintiff must show (i) that he suffered an injury in fact that is
concrete, particularized, and actual or imminent; (ii) that the
injury was likely caused by the defendant; and (iii) that the
injury would likely be redressed by judicial relief.” Id. (citing
Lujan, 504 U.S. at 560–61). “If ‘the plaintiff does not claim to
have suffered an injury that the defendant caused and the court
can remedy, there is no case or controversy for the federal court
to resolve.’” Id. (citation omitted)). Barclift’s case homes in on
the injury-in-fact requirement—that the plaintiff’s injury be
“real, and not abstract.” Id. at 424 (quoting Spokeo, 578 U.S.
at 340). We can reduce that requirement to three questions.

First, when assessing whether a harm is sufficiently
concrete for standing, “the Court has explained that ‘history
and tradition offer a meaningful guide to the types of cases that
Article III empowers federal courts to consider.’” Id. (quoting
Sprint Commc’ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269,
274 (2008)). “And with respect to the concrete-harm
requirement in particular,” Spokeo and TransUnion instruct
courts to “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.; see
also Spokeo, 578 U.S. at 341 (“[I]t is instructive to consider
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.” (citing Vt. Agency
of Nat. Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 775–77
(2000))). Under the close-relationship test, plaintiffs must
identify “a close historical or common-law analogue for their
asserted injury,” but an “exact duplicate in American history
and tradition” is not required. TransUnion, 594 U.S. at 424.12

Second, while “traditional tangible harms, such as
physical harms and monetary damages,” “readily qualify as

12
Which history and tradition to consult is another
challenge. TransUnion directs a search for “harms traditionally
recognized as providing a basis for lawsuits in American
courts,” 594 U.S. at 425, but cites tort law as restated in the
twentieth century as “longstanding American law,” id. at 432
(citing Restatement (First) of Torts § 559 (1938)). But a

12
concrete injuries under Article III,” certain “intangible harms
can also be concrete.” Id. at 425. “Chief among them are
injuries with a close relationship to harms traditionally
recognized as providing a basis for lawsuits in American
courts.” Id. Qualifying intangible harms “include, for example,
reputational harms, disclosure of private information, and
intrusion upon seclusion.” Id.

Third, along with common-law analogues, courts must
consider “Congress’s decision to impose a statutory
prohibition or obligation on a defendant, and to grant a plaintiff
a cause of action to sue over the defendant’s violation of that
statutory prohibition or obligation.” Id. Indeed, Congress may
enact a statute that “elevate[s]” certain “concrete, de facto
injuries” “to the status of legally cognizable injuries” even

twentieth-century translation does not necessarily nor
accurately state current law, let alone tell us anything about law
as traditionally understood. Cf. Kansas v. Nebraska, 574 U.S.
445, 476 (2015) (Scalia, J., concurring in part and dissenting in
part) (“[I]t cannot safely be assumed, without further inquiry,
that a Restatement provision describes rather than revises
current law.”).
TransUnion also cites Spokeo, which cites Vermont
Agency as an example of looking to traditionally recognized
harms. See TransUnion, 594 U.S. at 425 (citing Spokeo, 578
U.S. at 340–41). Vermont Agency looks to “the long tradition
of qui tam actions in England and the American Colonies,”
dating back to “around the end of the 13th century.” 529 U.S.
at 774–75. So if looking to tradition means looking to England
and the colonies, individuals alleging violations of private
rights would not need to show harm. See TransUnion, 594 U.S.
at 448 (Thomas, J., dissenting) (“The principle that the
violation of an individual right gives rise to an actionable harm
was widespread at the founding, in early American history, and
in many modern cases.”); Muransky, 979 F.3d at 971 (Jordan,
J., dissenting) (“English courts at common law heard suits
involving private rights, regardless of whether the plaintiff
suffered actual damage . . . .”). But notice that TransUnion
narrowed Spokeo’s class of permissible analogues from claims
heard in “English or American courts,” Spokeo, 578 U.S. at
341, to claims heard only in “American courts,” TransUnion,
594 U.S. at 424.
13
though they “were previously inadequate in law.” Id. at 426
(quoting Spokeo, 578 U.S. at 341). But while “Congress may
‘elevate’ harms that ‘exist’ in the real world before Congress
recognized them to actionable legal status, it may not simply
enact an injury into existence, using its lawmaking power to
transform something that is not remotely harmful into
something that is.” Id. (citation omitted).

Putting it all together, we must evaluate whether
Barclift’s asserted harm bears a close relationship to a harm
traditionally recognized as providing a basis for suit in
American courts; and, if Barclift has a sufficiently concrete
harm, evaluate whether Congress has elevated that harm to a
legally cognizable injury. To that task I turn.

A. History

Barclift’s “asserted harm has a ‘close relationship’ to a
harm traditionally recognized as providing a basis for a lawsuit
in American courts.” Id. at 433. That inquiry requires “a close
historical or common-law analogue for [her] asserted injury,”
not “an exact duplicate.” Id. at 424.

1. Start with Barclift’s alleged harm: the
“disclosure of private information of a personal, sensitive
nature” to a third party without her consent. App. 62. It stems
from a “Notice of Account Placement” Barclift received
stating that her “account with Main Line Fertility Center, Inc.
ha[d] been assigned to” Keystone. App. 67. The letter listed
Barclift’s Keystone account number, the date of her purported
delinquency, and the balance due. A bold notice advised “this
communication is from a debt collection company. This is an
attempt to collect a debt; any information obtained will be used
for that purpose.” App. 67.

Though the letter arrived on Keystone’s letterhead, a
third-party vendor, RevSpring, had prepared and mailed it.
That must mean Keystone “provided information regarding
[Barclift] and the Debt” to RevSpring and its hundreds of
employees, including her “name and address, the amount of the
Debt, the name of the current creditor, and other private details
regarding the Debt.” App. 56. Barclift says she “did not
consent to [Keystone] communicating with RevSpring in
connection with the collection of the Debt,” nor did she

14
authorize Keystone to engage in similar communications with
other third-party vendors. App. 56. And she claims the
unauthorized “disclosure of her personal financial details, as
well as the sensitive details of her personal medical services,
to an untold number of individuals affiliated with RevSpring”
made her feel embarrassed, anxious, and stressed. App. 62.
Take those allegations as true, and Barclift argues the
unauthorized disclosure tracks two common-law privacy torts:
public disclosure of private facts and breach of confidence. She
is right.

The tort of public disclosure prohibits “unauthorized
disclosures of information.” In re Horizon Healthcare Servs.
Inc. Data Breach Litig., 846 F.3d 625, 638 (3d Cir. 2017),
quoted in Kamal v. J. Crew Grp., Inc., 918 F.3d 102, 114 (3d
Cir. 2019). And “breach of confidence involves ‘the
unconsented, unprivileged disclosure to a third party of
nonpublic information that the defendant has learned within a
confidential relationship.’” Kamal, 918 F.3d at 114 (quoting
Alan B. Vickery, Note, Breach of Confidence: An Emerging
Tort, 82 Colum. L. Rev. 1426, 1455 (1982)).13 As this Court

13
Keystone did not address Barclift’s arguments about
breach of confidence. And the majority “hesitate[s] to
conclude” that the harm associated with breach of confidence
bears a close relationship to a harm traditionally recognized as
providing a basis for suit in American courts because “it ‘died
out in its infancy,’ likely due to the ‘birth and explosive
growth’ of traditional privacy torts such as the public
disclosure of private facts.” Majority Op. at 14 n.3 (quoting
Vickery, supra, at 1454–55). But that only acknowledges
breach of confidence existed in earlier American and English
jurisprudence, even if it fell out of vogue for a time. And its
reemergence in the 1980s demonstrates its continued
distinction from other torts.
Barclift is correct that breach of confidence is a proper
common-law analogue for her alleged harm. Considered by
English courts as early as 1849 and American courts as early
as 1894, breach of confidence has deep roots, at least as deep
as those of public disclosure of private facts, a tort the majority
and the Supreme Court accept as a traditionally recognized
basis for suit in American courts. See Prince Albert v. Strange

15
held five years ago, “the harm underlying both of these actions
transpires when a third party gains unauthorized access to a
plaintiff’s personal information.” Id. Meaning the “unlawful
disclosure of legally protected information” is itself a “de facto
injury.” In re Nickelodeon Consumer Priv. Litig., 827 F.3d
262, 274 (3d Cir. 2016); see also St. Pierre v. Retrieval-
Masters Creditors Bureau, Inc., 898 F.3d 351, 357–58 (3d Cir.
2018) (same); DiNaples v. MRS BPO, LLC, 934 F.3d 275, 279–
80 (3d Cir. 2019) (same).

The Supreme Court reached the same conclusion in
TransUnion. It specifically listed the “disclosure of private

(1849) 41 Eng. Rep. 1171, 1178; 1 Mac. & G. 25, 44; Corliss
v. E.W. Walker Co., 64 F. 280, 281 (C.C.D. Mass. 1894); see
also Samuel D. Warren & Louis D. Brandeis, The Right to
Privacy, 4 Harv. L. Rev. 193, 207 (1890) (“It should be stated
that, in some instances where protection has been afforded
against wrongful publication, the jurisdiction has been
asserted, not on the ground of property, or at least not wholly
on that ground, but upon the ground of an alleged breach of an
implied contract or of a trust or confidence.” (emphasis
added)); Pavesich v. New Eng. Life Ins. Co., 50 S.E. 68, 75
(Ga. 1905) (“It must be conceded that the numerous cases
decided before 1890 in which equity has interfered to restrain
the publication of letters, writings, papers, etc., have all been
based either upon the recognition of a right of property, or upon
the fact that the publication would be a breach of contract,
confidence, or trust. It is well settled that, if any contract or
property right or trust relation has been violated, damages are
recoverable. There are many cases which sustain such a
doctrine.” (emphasis added)). Its failure to gain popularity over
alternative privacy torts in the early twentieth century is not
fatal to this conclusion. The mere fact that, for a time, plaintiffs
chose to utilize alternative causes of action does not render the
underutilized cause of action unable to sustain a suit at
common law.
Barclift’s alleged harm bears a close relationship to the
harm arising from breach of confidence. The confidential
relationship is legally significant to the tort only because it
imposes a duty on the defendant to maintain the plaintiff’s
private information. See Vickery, supra, at 1456–57. Here that
duty is imposed by the FDCPA. See 15 U.S.C. § 1692c(b).
16
information” as an example of a “harm[] traditionally
recognized as providing a basis for lawsuits in American
courts.” 594 U.S. at 425.14 Because Barclift claims Keystone
concretely harmed her by unlawfully disclosing her private
information, she has done enough.

2. The majority sets a higher bar, requiring more fit
between Barclift’s asserted harm and the common-law
analogues. In the majority’s view, Barclift loses because her

14
A proposition the Court supported by citing Davis v.
Federal Election Commission, which held that a candidate had
standing to challenge a campaign finance law requiring him to
disclose personal contributions beyond a certain amount. See
554 U.S. 724, 733 (2008). At common law, the tort of public
disclosure requires “the matter publicized” to be “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). But neither of these elements
mattered to the Court in Davis, nor did the Court mention them
in TransUnion. See Clemens v. ExecuPharm Inc., 48 F.4th 146,
155 n.5 (3d Cir. 2022) (“[W]hether a plaintiff has successfully
made out claims under a particular cause of action is a separate
question.”). The “disclosure of private information” alone
constituted the classic example of a concrete intangible harm.
TransUnion, 594 U.S. at 425.
A conclusion with support dating back to at least 1905.
See Pavesich, 50 S.E. at 80–81 (“So thoroughly satisfied are
we that the law recognizes, within proper limits, as a legal
right, the right of privacy, and that the publication of one’s
picture without his consent by another as an advertisement, for
the mere purpose of increasing the profits and gains of the
advertiser, is an invasion of this right, that we venture to predict
that the day will come that the American bar will marvel that a
contrary view was ever entertained by judges of eminence and
ability.”); see also Cox Broad. Corp. v. Cohn, 420 U.S. 469,
488–89 (1975) (acknowledging that “the century has
experienced a strong tide running in favor of the so-called right
of privacy,” explaining that “a ‘right of privacy’ has been
recognized at common law” in much of the country, and
discussing “[t]he version of the privacy tort . . . termed . . . ‘the
tort of public disclosure’” (quoting Time, Inc. v. Hill, 385 U.S.
374, 383 n.7 (1967))).
17
Amended Complaint lacks allegations of publicity, removing
the kind of harm traditionally associated with public
disclosure. But Barclift alleges that she suffered
embarrassment, anxiety, and stress over the disclosure of her
information to RevSpring—harms that are “of the same
character” as privacy harms traditionally associated with
public disclosure. Susinno v. Work Out World Inc., 862 F.3d
346, 352 (3d Cir. 2017) (concluding that, although plaintiff’s
allegations “traditionally would provide no cause of action,”
Congress “sought to protect the same interests implicated in
the traditional common law cause of action” when it enacted
the statute at issue and thus plaintiff had standing under the
statute). Nothing in TransUnion endorses, let alone requires,
the majority’s contrary result.

a. TransUnion’s close-relationship test directs
courts to focus on harms (not causes of action) and look for
comparisons in kind (not degree). See Hunstein v. Preferred
Collection & Mgmt. Servs., Inc., 48 F.4th 1236, 1264 (11th Cir.
2022) (en banc) (Newsom, J., dissenting) (discussing the
“‘kind-degree’ framework”). And when comparing harms,
TransUnion expressly disavows an “exact duplicate”
requirement.15

15
See 594 U.S. at 433 (“[W]e do not require an exact
duplicate.”); id. at 424 (“Spokeo does not require an exact
duplicate in American history and tradition.”); see also id.
(“[C]ourts 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 425 (requiring “injuries with a close
relationship to harms traditionally recognized as providing a
basis for lawsuits in American courts”); id. at 432 (assessing
plaintiffs’ contention that their “injury bears a ‘close
relationship’ to a harm traditionally recognized as providing a
basis for a lawsuit in American courts”); id. (finding certain
class members “suffered a harm with a ‘close relationship’ to
the harm associated with the tort of defamation”); id. at 433
(stating courts should “look[] 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”).
18
 TransUnion’s reasoning follows this distinction to hold
that the mere transmission of misleading information—with no
further harms or consequences—constitutes a concrete injury.
See 594 U.S. at 433. TransUnion flagged thousands of
individuals with a “potential match” to names on the U.S.
Department of the Treasury Office of Foreign Assets Control
(OFAC) list of “‘specially designated nationals’ who threaten
America’s national security.” Id. at 419–20. The OFAC list
names “terrorists, drug traffickers, [and] other serious
criminals.” Id. at 419. TransUnion’s misleading labels imposed
different kinds of harm. For Sergio Ramirez (the class
representative), the label had real world consequences: he tried
to buy a car, but the dealership refused to do business with him
“because his name was on a ‘terrorist list.’” Id. at 420. For
1,853 class members (including Ramirez), “TransUnion
provided third parties with credit reports containing” the
misleading terrorist label. Id. at 432. We do not know if other
class members suffered harms beyond their credit reports; all
the opinion tells us is that these class members had misleading
information sent to third parties. See id. And for the Court, the
mere transmission of that misleading information (with
nothing further) constituted “a harm with a ‘close relationship’
to the harm associated with the tort of defamation.” Id.

The Court could have required a more stringent
connection to defamation. For one thing, the label was true: the
class members’ names were “potential” matches with those of
terrorists. See id. at 420. TransUnion argued that this undercut
the defamation analogy. See id. at 433. But the Court rejected
TransUnion’s push for “an exact duplicate,” finding instead
that “the harm from a misleading statement . . . bears a
sufficiently close relationship to the harm from a false and
defamatory statement.” Id.

The Court could have required more specificity. The
hornbook definition of defamation requires some sort of
“special harm.” See Restatement (Second) of Torts § 558
(1977) (requiring either “the existence of special harm” or a
statement actionable “irrespective of special harm” (i.e.,
defamation per se)). If the plaintiff lacks “special harm,” he
may only recover by showing that the statement constituted
“defamation per se.” Franklin Prescriptions, Inc. v. N.Y. Times
Co., 424 F.3d 336, 43 (3d Cir. 2005) (citation omitted). And

19
defamation per se historically applies to “words imputing (1)
criminal offense, (2) loathsome disease, (3) business
misconduct, or (4) serious sexual misconduct.” Synygy, Inc. v.
Scott-Levin, Inc., 51 F. Supp. 2d 570, 580 (E.D. Pa.
1999), aff’d sub nom. Synygy, Inc. v. Scott-Levin, 229 F.3d
1139 (3d Cir. 2000) (citation omitted). The misleading terrorist
label seems analogous to “words imputing . . . criminal
offense,” id., but the Court did not wade into, let alone rest on,
that level of granularity. It instead drew an analogy to the
general “reputational harm associated with the tort of
defamation,” and found that the mere transmission of a
misleading (though literally true) statement implicated this
kind of harm. TransUnion, 594 U.S. at 432 (emphasis added).

Summed up, TransUnion’s text and reasoning support
performing a general, kind-of-harm comparison that rejects
exact duplication. I concur in the majority’s adoption of this
approach. But its application veers into an unnecessary jot-for-
jot exactness to some common-law cause of action.16

b. Footnote six in TransUnion does not require a
different outcome. I start by unpacking what the Court wrote.

16
In an attempt to fit its analysis under the kind-of-harm
approach, the majority distinguishes between the harms arising
from public dissemination and private dissemination. But as
the Supreme Court recognized, the degree of dissemination
only affects the “extent of the protection accorded a privacy
right.” Dep’t of Just. v. Reps. Comm. for Freedom of Press, 489
U.S. 749, 763 (1989) (emphasis added). Meaning Barclift
might be unable to recover on a claim for public disclosure at
common law. But she has still suffered some intrusion on her
right to privacy through the unauthorized disclosure. While
that harm may be a mere “trifle of injury,” that is all we require
for her to stand in court. Danvers Motor Co., Inc. v. Ford
Motor Co., 432 F.3d 286, 294 (3d Cir. 2005) (citation omitted).
Recall that Barclift need not establish the elements of a
common-law analogue to have standing to assert her FDCPA
claim. See TransUnion, 594 U.S. at 433 (“[W]e do not require
an exact duplicate.”). She only needs to assert a harm with a
“‘close relationship’ to a harm traditionally recognized as
providing a basis for a lawsuit in American courts.” Id. She has
done so.
20
Recall that TransUnion sent the OFAC list to third-party
vendors who printed and mailed the information to the class
members. The class argued that “TransUnion ‘published’ the
class members’ information internally—for example, to
employees within TransUnion and to the vendors that printed
and sent the mailings that the class members received.” Id. at
434 n.6. The Court reasoned that communication requires
“evidence that the defendant actually ‘brought an idea to the
perception of another,’ and thus generally require[s] evidence
that the document was actually read and not merely
processed.” Id. (quoting Restatement (First) of Torts § 559,
cmt. a (1938)) (citing Ostrowe v. Lee, 256 N.Y. 36, 38–39
(1931) (Cardozo, J.)). The Court then concluded that “the
plaintiffs’ internal publication 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.

Barclift still has standing despite TransUnion’s footnote
six. To begin, the Court explained these class members failed
to produce evidence at trial “that the [misleading credit reports
were] actually read and not merely processed.” Id. That makes
sense: it is possible in our automated world that nobody even
saw the data flowing from TransUnion’s servers to the
computers in the vendors’ back offices. But the inverse does
not follow—that, even if the challenged disclosures were read
by a processor, they could not be actionable. I cannot read the
lack of evidence to also mean that no evidence could suffice
because all disclosures to intermediaries are beyond the
ordinary meaning of publication. Not only would that defy
logic, it would undermine Ostrowe v. Lee, the case cited by the
Court to illustrate the meaning of publication. The plaintiff
there sued a defendant for libel, alleging “that the defendant
composed a letter accusing the plaintiff of the crime of larceny;
that he dictated this letter to his stenographer; that the
stenographer, in obedience to his orders, read the notes and
transcribed them; and that the letter so transcribed was received
by the plaintiff through the mails.” 256 N.Y. at 38.

The defendant responded that no publication occurred
because “[a] defamatory writing is not published if it is read by
no one but the defamed.” Id. But the New York Court of

21
Appeals, per Chief Judge Cardozo, held that the “complaint
[was] good upon its face” because someone else had read the
defamatory writing: the stenographer. Id. at 38, 41. Indeed,
publication occurs “as soon as read by any one else.” Id. at 38.
Cardozo takes care to show his homework, and the result is
worth reprinting in full:

The reader may be a telegraph operator
(Williamson v. Frere, [(1874)] L. R. 9 C. P. 393),
or the compositor in a printing house (Baldwin v.
Elphinston, [(1775)] 2 W. Bl. 1037), or the
copyist who reproduces a long hand draft
(Puterbaugh v. Gold Medal F. M. Co., [(1904)]
7 Ont. L. R. 582, 586). The legal consequence is
not altered where the symbols reproduced or
interpreted are the notes of a stenographer.
Publication there still is as a result of the
dictation, at least where the notes have been
examined or transcribed (Pullman v. Hill & Co.,
[1891] 1 Q. B. 524; Boxsius v. Goblet Freres,
[1894] 1 Q. B. 842; Gambrill v. Schooley, 93 Md.
48 [(1901)]; Ferdon v. Dickens, 161 Ala. 181
[(1909)]; Berry v. City of New York Ins. Co., 210
Ala. 369, 371 [(1923)]; Nelson v. Whitten, 272
F.[] 135 [(E.D.N.Y. 1921)]; Puterbaugh v. Gold
Medal F. M. Co., supra; Gatley, Libel & Slander,
p. 91; cf. Kennedy v. Butler, Inc., 245 N. Y. 204
[(1927)]). Enough that a writing defamatory in
content has been read and understood at the
behest of the defamer (1 Street, Foundations of
Legal Liability, p. 297).

Id. (fourth and fifth alterations in original). It is a strong line of
cases traversing the continent, crossing the pond, and dating
back dozens of decades directly undercutting the notion that no
harm ever follows communication to intermediaries.17 Under

17
The majority “agree[s] that Barclift’s allegations
plausibly support an inference that Keystone caused someone
at RevSpring to read (and not merely process) information
about Barflict’s alleged debt,” but is “not convinced that this
inference or the Supreme Court’s citation to Ostrowe means

22
that Barclift’s harm bears a close relationship to one that was
actionable at common law.” Majority Op. at 19 n.5. A
conclusion the majority supports with cites to cases showing
that “communications to an associate in the ordinary course of
business did not support an action at common law.” Majority
Op. at 17 n.5. But those cases deal with privileged
communications. See, e.g., Chalkley v. Atl. Coast Line R. Co.,
150 Va. 301, 334 (1928) (“Here, however, the communication
was privileged and the typist had a duty to discharge in the
ordinary course of business in connection with the
transcription of the communication.”); Globe Furniture Co. v.
Wright, 265 F. 873, 876 (D.C. Cir. 1920) (“But we prefer to
put our decision upon the ground that the occasion was
conditionally privileged, that the letter was within the
privilege, that there was no malice, and therefore that the letter
is not actionable.”); Rodgers v. Wise, 7 S.E.2d 517, 517–19
(S.C. 1940) (finding satisfactory the conclusions of the lower
court, which held that the letter was “privileged and that the
writing and mailing of it [was] not a publication”); Cartwright-
Caps Co. v. Fischel & Kaufman, 74 So. 278, 279 (Miss. 1917)
(concluding that “the letters were privileged, and that there was
not, in a legal sense, a publication of the letters in question”);
Owen v. Ogilvie Publ’g Co., 32 A.D. 465, 466–67 (N.Y. App.
Div. 1898) (explaining that “[i]t may be that the dictation to the
stenographer and her reading of the letter would constitute a
publication of the same by the person dictating it, if the relation
existing between the manager and the copyist was that of
master and servant, and the letter be held not to be privileged.
Such, however, was not the relation of these persons. They
were both employed by a common master, and were engaged
in the performance of duties which their respective
employments required. Under such circumstances we do not
think that the stenographer is to be regarded as a third person
in the sense that either the dictation or the subsequent reading
can be regarded as a publication by the corporation”); Cent. of
Ga. Ry. Co. v. Jones, 89 S.E. 429, 429 (Ga. Ct. App. 1916)
(reversing judgment and following rule in Owen); Nichols v.
Eaton, 81 N.W. 792, 793 (Iowa 1900) (“One may make a
publication to his servant or agent, without liability, which, if
made to a stranger, would be actionable,” if “[t]he occasion
was undoubtedly privileged”).

23
Barclift’s Amended Complaint, RevSpring is the modern
stenographer. Whether RevSpring “read and understood” the
information Keystone sent is a question for discovery and
another day. For today, it is enough that Barclift alleges
Keystone “communicated with RevSpring”—as well as “an
untold number of individuals affiliated with RevSpring”—and
“provided [them] information regarding [Barclift] and the Debt
. . . —including [her] name and address, the amount of the
Debt, the name of the current creditor, and other private details
regarding the Debt.” App. 56, 62. Accepting those factual

The presence of a privilege separates the claims in
Ostrowe, the cases it cites, and the decisions that reach the
same conclusions as Cardozo. See also, e.g., Rickbeil v.
Grafton Deaconess Hosp., 74 N.D. 525, 542 (1946); State v.
McIntire, 20 S.E. 721, 722 (N.C. 1894). Conclusions that
constitute no outlier or minority approach. See, e.g., Martin L.
Newell, The Law of Slander and Libel in Civil and Criminal
Cases § 195, 242–43 (4th ed. 1924) (describing the rule later
adopted by Ostrowe as the “leading” American approach);
Restatement (First) of Torts § 577, cmt. h (1938) (adopting
Ostrowe’s publication holding). Rather, Ostrowe’s rule that
disclosing private information to intermediaries constitutes
publication is the starting point, subject to attacks to the prima
facie case such as privilege. See Rickbeil, 74 N.D. at 542 (“A
defamatory writing, which on its face is libelous per se, is
presumed to be unprivileged and therefore when the plaintiff
proved the publication of this libel he made out a cause of
action showing an unprivileged publication.”); Kennedy, 245
N.Y. at 207 (“Whether such a publication were privileged—a
privileged communication—is another matter. Privilege
presupposes publicity. The plea of privilege is unnecessary if
there has been no publication.”). Ostrowe and the majority’s
cases both show that the disclosure of private information to an
intermediary was actionable at common law. Whether a
plaintiff may successfully recover is a different—and
premature—question in our standing inquiry.
In any event, that courts allowed both approaches—in
different jurisdictions at different times—does not mean that
disclosures to intermediaries were not actionable at common
law. TransUnion did not insist on harms traditionally
recognized in every American court. Nor harms that would
withstand every defense against them.
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allegations as true and extending all reasonable inferences in
her favor, Barclift has done enough to show that she has
standing. See St. Pierre, 898 F.3d at 354 n.1.

B. Judgment of Congress

The judgment of Congress confirms the concreteness of
Barclift’s asserted injury. See TransUnion, 594 U.S. at 425–
26. Courts consult “Congress’s views” to determine whether
Congress has “elevate[d] to the status of legally cognizable” a
concrete injury that was “previously inadequate in law.” Id. at
425 (quoting Spokeo, 578 U.S. at 341). Of course, “courts must
presume that a legislature says in a statute what it means and
means in a statute what it says there.” Conn. Nat’l Bank v.
Germain, 503 U.S. 249, 253–54 (1992).

Congress has expressed its judgment in two provisions.
First, Congress made it unlawful for a debt collector to
communicate about “the collection of any debt” with “any
person,” unless the collector first obtains “the prior consent of
the consumer.” 15 U.S.C. § 1692c(b). And second, in a
provision titled “Congressional findings and declarations of
purpose,” Congress listed the “invasion[] of individual
privacy” as one of the harms to which the FDCPA was
directed. Id. § 1692(a). Understood against the backdrop of
common law privacy protections, the “legislative aim,” OI Eur.
Grp. B.V., 73 F.4th at 170 (citing 1 Blackstone, Commentaries
*87), of these provisions is clear: to elevate a real-world harm
(the unauthorized disclosure of private information) to
“actionable legal status,” TransUnion, 594 U.S. at 426 (citation
omitted).

Maybe “Congress could have created . . . a [more]
cumbersome scheme” to protect debtor privacy. Krakauer v.
Dish Network, L.L.C., 925 F.3d 643, 654 (4th Cir. 2019). One
that requires the debtor to prove that her private information
became public in the common-law sense of the word. Or
maybe one that excepts third-party vendors from the general
bar on communications (like the exceptions for attorney
communications). Instead, Congress “opted for a more
straightforward and manageable way of protecting personal
privacy, and the Constitution in no way bars it from doing so.”
Id. That congressional judgment deserves the respect of the
courts.
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 ***

TransUnion warned that “the concrete-harm
requirement can be difficult to apply in some cases.” 594 U.S.
at 429. Few would argue otherwise. But under the path
TransUnion paved, Barclift’s asserted harm (the unauthorized
disclosure of private information) bears a close relationship to
the harm underlying claims for public disclosure of private
facts and breach of confidence. The majority starts down the
right road but loses footing on a footnote. I think TransUnion
is made of sturdier stuff and would not wander further from the
limited requirements of Article III. Barclift has shown standing
sufficient for a federal court to hear her claim, and so I
respectfully concur in part, dissent in part, and dissent in the
judgment.

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