In Weisz v. Sarma Collections, Inc., No. 21-CV-06230 (PMH), 2022 U.S. Dist. LEXIS 72692, at *5-8 (S.D.N.Y. Apr. 20, 2022), Judge Halpern threw out a Hunstein case based on lack of standing.
Plaintiff seeks to recover statutory damages only and does not allege in the Amended Complaint that he was harmed in any way by the alleged FDCPA violations. Plaintiff argues, in his opposition, that the concrete harm requirement for purposes of Article III is satisfied because he alleges a “close historical or common-law analogue for [his] asserted injury,” TransUnion LLC, 141 S. Ct. at 2204. (See generally Pl. Opp.). Plaintiff finds support for this argument in the sincesuperseded Eleventh Circuit opinion of Hunstein v. Preferred Collection & Mgmt. Servs., Inc., 994 F.3d 1341 (11th Cir. 2021) (“Hunstein I”); and a decision that has since been vacated pending an en banc rehearing, Hunstein v. Preferred Collection & Mgmt. Servs., Inc., 17 F.4th 1016 (11th Cir. 2021) (“Hunstein II”). Specifically, Plaintiff contends that the mere disclosure of Plaintiff’s private information to a third party in violation of the plain language of the FDCPA is analogous to public disclosure of his private information (i.e., invasion of privacy) and therefore presents the same kind of harm as the common law analogue. Plaintiff explains that “‘improperly shar[ing] personal information with a third party’ closely resembles an invasion of privacy.” (Pl. Opp. at 5 (quoting Ward v. Nat’l Patient Acct. Servs. Sols., Inc., 9 F.4th 357, 362 (6th Cir. 2021))). Defendant points out, however, that Plaintiff does not even allege an invasion of privacy—Plaintiff does not plead that any employee of the letter vendor reviewed or otherwise saw his information (Reply at 3), and courts in this Circuit have concluded that Article III standing is lacking for this type of claim absent allegations of a concrete injury (see generally Def. Br.). Defendant argues that this case should be dismissed following the same rationale applied in Sputz v. Alltran Fin., LP, No. 21-CV-04663, 2021 U.S. Dist. LEXIS 233292, 2021 WL 5772033 (S.D.N.Y. Dec. 5, 2021). The Court agrees, and finds eminently sound the logic, reasoning, and conclusion of Judge Seibel’s decision in Sputz, which rejected that plaintiff’s reliance on the invasion of privacy tort and stated: “[t]his privacy tort, which is recognized under the common law of many states, see Restatement (Second) of Torts §§ 652A, 652D, although not New York, see Farrow v. Allstate Ins. Co., 53 A.D.3d 563, 862 N.Y.S.2d 92, 93 (App. Div. 2008), applies where the defendant “gives publicity to a matter concerning the private life of another” where the matter publicized involves facts that “(a) would be highly offensive to a reasonable person, and (b) [are] not of legitimate concern to the public,” Restatement (Second) of Torts § 652D. “‘Publicity,'” in this context, “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.” Id. cmt. a. Thus, “it is not an invasion of the right of privacy . . . to communicate a fact concerning the plaintiff’s private life to a single person or even to a small group of persons.” Id.” Defendant argues — and the Court agrees — that the “transmission of [Plaintiff’s] information to [Defendant’s] letter vendor does not remotely rise to the level of ‘publicizing’ private information to the public at large.” (D’s Mem. at 14.) Because publicity is essential to liability in a suit for public disclosure of private facts, it follows that Plaintiff lacks standing. See Restatement (Second) of Torts § 652D; id. cmt. a. Like the plaintiffs in TransUnion who did not have standing because their credit reports were not disseminated to a third party, which is “essential to liability in a suit for defamation,” id. at 2209 (cleaned up), here, plaintiff lacks standing because his private information was not disclosed to the public, which is essential to liability in a suit for public disclosure of private information, see Ciccone v. Cavalry Portfolio Servs., No. 21-CV-2428, 2021 U.S. Dist. LEXIS 228037, 2021 WL 5591725, at *3-4 (E.D.N.Y. Nov. 29, 2021). Sputz, 2021 U.S. Dist. LEXIS 233292, 2021 WL 5772033, at *3. Simply put, Plaintiff’s failure to plead a concrete harm sufficient to establish standing deprives this Court of jurisdiction over his claim. The Amended Complaint, therefore, must be dismissed.