Hunstein Isn't Over: 4 Things You Need to Know

The 11th Circuit’s September 8, 2022 Opinion dismissed Hunstein (Opinion)[1]. That's good news, right? It is, but debt collectors cannot assume all of the industry’s Hunstein-related problems are gone. The opinion did not completely address the underlying issue nor serve as a permanent bar to these types of actions in all courts, which means Hunstein can absolutely continue to affect the industry. Read on for a practical breakdown of the Hunstein dismissal, what it says, what it doesn't say, and what it all means.

Confused? You're not alone. If the dismissal was unequivocally good for the industry, how can the Hunstein problems still exist? The answer is in the legalese of the 80-page Opinion.

Here are the top four things you need to know about the dismissal:

1. The case was dismissed because Mr. Hunstein lacked the standing to bring it.

While it may seem like a procedural nuance or irrelevant legalese, to understand the future of Hunstein-type cases, it is crucial for debt collectors to pay attention to why the case was dismissed.

“[F]ederal courts have limited jurisdiction” (Opinion- page 7). Part of this limitation requires the party bringing an action in federal court to have what is called “standing” to bring the action. “Standing” requires a legal analysis which includes, in part, a determination regarding whether a litigant bringing a suit has suffered an “injury in fact.” Not every statutory wrong causes an injury capable of supporting standing (Opinion- page 9), and “a pure statutory violation is not enough to establish harm” (Opinion- page 21).

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Citing the U.S. Supreme Court’s 2021 Transunion decision, which held, “no concrete harm, no standing,” the Court explained that to show he suffered an “injury in fact,” Mr. Hunstein would need to tie his alleged harm to an analogous cause of action at common law[2]. The Supreme Court was clear in Transunion that without a comparable common law cause of action, there is no injury, and a standing analysis fails.

Mr. Hunstein claimed the harm he suffered by the debt collector sending data to a third-party letter vendor was analogous to the common law tort of 'public disclosure of private facts.' The majority of the 11th Circuit Court of Appeals judges disagreed, finding that even if the letter vendor’s employees saw Mr. Hunstein’s information, disclosing information to private individuals is not the same as publicly disclosing facts. Therefore, in the Court’s opinion, Mr. Hunstein failed to show any actual harm and lacked the requisite standing to bring an action in federal court. Because Mr. Hunstein’s complaint failed to show he had sufficient standing to bring the action in federal court, his lawsuit was dismissed without prejudice[3].

2. The Opinion doesn't expressly address whether sending data to a letter vendor violates the FDCPA.

You might ask how it can be that the Court dismissed the case but didn’t actually address whether sending data to a letter vendor violates the Fair Debt Collection Practices Act (FDCPA)[4]. The answer to this question lies in the legal reason the case was dismissed.

There are several different reasons why a federal court might dismiss a lawsuit. In addition to dismissing a case for lack of Article III standing (as was done here), courts can also dismiss claims for the failure to state a claim upon which relief can be granted [5]. Conceptually these dismissals are not alike and they have distinctly different impacts on future cases.

A dismissal for the failure to state a claim for which relief can be granted means that even on their proverbial “best day in court,” a plaintiff has not alleged anything for which a court can grant relief. In other words, something may have happened, but so what? Conversely, a dismissal based on a lack of Article III standing means that the federal court cannot hear the case. A dismissal granted on this basis does not delve into the allegations and whether a litigant will be successful. Instead, as explained above, it asks, “should this action be brought before this court?”

In 2019, the Middle District of Florida dismissed Mr. Hunstein’s complaint for the failure to state a claim for which relief can be granted, explicitly holding, “Hunstein is unable to state a claim for relief under the FDCPA because the communication from [the debt collector] to [the letter vendor] was not made in connection with the collection of a debt.” In April 2021, the Eleventh Circuit Court of Appeals’ opinion addressed both issues, holding both that Mr. Hunstein had the standing to bring the action in federal court and that he stated a claim for which relief could be granted (i.e., sending data to a letter vendor could be an FDCPA violation).

Although the October 2021 substitute opinion focused heavily on the Article III standing issue, it did not deviate from the position that Mr. Hunstein stated a claim for which relief could be granted. In February 2022, after vacating the substitute opinion and deciding a full panel of the Eleventh Circuit would rehear the matter, the court limited the parties’ legal briefs to the standing issue, essentially limiting the argument to whether Mr. Hunstein could file suit in federal court (i.e., standing), not whether the claim itself (sending data to a mail vendor) is a viable cause of action under the FDCPA.

Consistent with this directive, the September 8, 2022, Opinion and directive to dismiss the case did not address whether sending data to a mail vendor in and of itself is an FDCPA violation. To be clear: they did not say it was a violation of the FDCPA, but they also didn't say it was not. Instead, as discussed above, the Court parsed through the Transunion decision and the definition of “publicity” to evaluate where Mr. Hunstein had the requisite standing to bring the lawsuit in federal court. That said, the Court opined that they do not believe Congress intended the FDCPA to target debt collectors’ vendor usage (Opinion- page 22).

3. Hunstein copycat suits can still be filed in state courts.

Since the Hunstein Opinion did not resolve whether sending data to a letter vendor violates the FDCPA, it does not preclude consumers from filing Hunstein-style cases in state courts. As explained by Manny Newburger of Barron & Newburger, PC, in this article regarding the dichotomy between state and federal courts, “When a case is dismissed from a federal court for lack of Article III standing, that is not a decision ‘on the merits,’ and the defendant has not ‘won.’ The plaintiff may be able to re-file in state court, depending on the state’s own standing jurisprudence.” In that same article, Mr. Newburger discussed why it might be more beneficial for consumers to file suits in their local state courts. Illustrating this point, there have already been instances where consumers sought to move their Hunstein copycat cases to state courts instead of litigating them in federal court.

4. Pay attention to the pleadings- others may succeed where Mr. Hunstein failed.

In the Opinion, the Court explained that, as plead, Mr. Hunstein did not meet the threshold requirements for standing. Further, the Court pointed out the ruling is relative only to this plaintiff in this action stating, “[t]he fact that one plaintiff, Hunstein, has not pleaded injury under this statute does not show that no one else can or will” (Opinion- page 23). “Standing inquiry centers on whether a given plaintiff has pleaded an injury, not whether a cause of action is generally proper” (Opinion- page 23). Combine that with the Court noting that “Hunstein did not allege that a single employee read or understood the information about his debt, leaves him with a statutory violation only” (Opinion- page 22), and a case can be made that a different plaintiff pleading differently, might be more successful.

A few other notable points:

The case was dismissed without prejudice, meaning the allegations can be updated, and Mr. Hunstein can file again. He may also choose to appeal.
Judge Newsom, who wrote both the original Hunstein opinion and the substitute opinion, vehemently disagreed with the majority opinion and attempted to illustrate a circuit split on the standing issue.

The complete September 8, 2022 Opinion dismissing the lawsuit can be found here.

insideARM Perspective:

The September 8, 2022, Hunstein Opinion was a monumental win, and the above points are not meant to rain on the parade of the ARM industry. That said, dismissing Mr. Hunstein’s lawsuit did not wipe the last 18 months away, and it may not have put the debt collection world back where it was in early April of 2021. Debt collectors should celebrate the long-awaited return to common sense of the Eleventh Circuit but should be careful not to think the race is entirely over like this guy. There might be a few things yet to resolve.

The ultimate success of any lingering Hunstein issues is another story whose ending is still to be written. As always, debt collectors should proceed cautiously when changing policies, processes, and procedures and keep in mind the defensibility of their actions.

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[1] Case No: 19-14434 (11th Cir. 2022)

[2] For a concise definition of “common law,” see this article from Cornell Law School’s Legal Information Institute.

[3] “Without prejudice” means Mr. Hunstein has a limited time frame in which he may file the lawsuit again if he so chooses.

[4] The statute at issue is 15 USCA 1692c(b).

[5] For more detail on these types of dismissals, see this Thomson Reuters article.

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Want to make sure you understand the Hunstein ruling? In The Hunstein Ruling Explained: A Guide for Non-Lawyers, a new, short webinar from insideARM and Research Assistant, we'll translate this dense, 80-page ruling from legalese into plain English and provide a tight set of coherent, practical takeaways on this critical issue, including: