Paulette Barclift sued Keystone Credit Services after Keystone shared certain personal information with a mailing vendor that it hired to mail her a collection notice. Barclift never authorized Keystone to share that information with third parties, and thus sued for violating the FDCPA’s provisions on unauthorized communications. The district court held that Barclift had not suffered a cognizable injury to establish Article III standing, and the Third Circuit affirmed last Friday in a divided opinion.
In reaching its conclusion, the panel majority considered the Supreme Court’s 2021 decision in TransUnion v. Ramirez and noted that courts of appeals had interpreted the decision in two 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…. Others compare the kind of harm a plaintiff alleges with the kind of harm caused by the comparator tort.” The court fund the second approach to be the correct one and found that any injury Ms. Barclift suffered was not like that recognized under any common-law tort, because there was no public disclosure of private facts, only a sharing of information from creditor to mailing vendor.
Concurring in part and dissenting in part, Judge Matey relied heavily on originalist sources and Justice Thomas’s TransUnion dissent to criticize modern standing doctrine more generally, before arguing that the mere transmission of private information was itself sufficiently similar to an injury at common law — those recognized under the torts of both public disclosure of private facts and breach of confidence — to confer standing.
