On June 25, 2021, in the case of TransUnion v. Ramirez, 594 U.S. ____ (2021), the Supreme Court of the United States issued an opinion that held, "No concrete harm, no standing." Central to the issue in the Ramirez case was an analysis regarding the effect of publishing certain materials to third parties, which may directly influence the 11th Circuit Court of Appeals decision to rehear the Hunstein matter.
As everyone in the Accounts receivable industry is likely aware by now, on April 23, 2021, in the matter of Hunstein vs. Preferred Collection & Management Services, Inc, 994 F.3d 1341 (11th Cir. 2021), the 11th Circuit Court of Appeals held that transmitting data to a mail house to generate and send demand letters to consumers violates the prohibition on third-party disclosure set forth in 15 USCA § 1692c(b). The defendant has since filed a petition for rehearing en banc, and over 20 groups filed amicus briefs supporting the petition.
In footnote 6 of the Ramirez opinion, the Supreme Court rejected the plaintiff’s theory that TransUnion “published” information internally to employees within TransUnion and to vendors that printed and sent the mailings that the class members received. Within this footnote, the Court specifically held that American courts “have [not] necessarily recognized disclosures to printing vendors as actionable publications.” It concluded by stating, “In short, 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.”
On Friday, June 25, 2021, based on the Supreme Court’s language in Footnote 6 of Ramirez, the debt collector in Hunstein, Preferred Collection and Management Services, Inc. (Preferred), filed a notice of supplemental authority with the 11th Circuit Court of Appeals. Within the Notice of Supplemental Authority, Preferred stated that in footnote 6, the Supreme Court implicitly recognized that providing information to a letter vendor is not a “publication” and does not cause an injury-in-fact sufficient to provide standing. Preferred further noted, “the opinion of the Supreme Court is controlling and further compels the necessity to grant a rehearing or a rehearing en banc…. Just as the class members in Ramirez did not suffer an injury-in-fact from the processing of internal communications, nor has [Hunstein].”
Footnote 6 of the Ramirez opinion echoes the opinion of many in the accounts receivable industry. On its face, it seems to contradict the opinion of the 11th Circuit Court of Appeals in Hunstein. Hopefully, the 11th Circuit will take notice of footnote 6, and the Ramirez decision will help undo the disaster commonly referred to as Hunstein. We will continue to keep you informed as this progresses.