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)
2

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
3

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.
4

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 
5

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 
6

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 
7

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 ‘mailingvendor’ 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.
8

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 
9

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 intracompany 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 
10

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.
11

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 
12

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 elementbased 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 
13

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-elementstest”(citingBlockburger

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”).
14

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”).
15

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 
16

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. 
17

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)
18

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)
19

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. 
20

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).
21

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. 
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, Foundingera 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. 
2

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.2I 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)).
3

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 
4

“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). 
5

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 Foundingera 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 
6

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.
7

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.”).
8

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.
9

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-infact 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))). 
10

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 publicprivate 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)). 
11

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, 
12

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 
13

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.
14

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 
15

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
16

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. RetrievalMasters 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). 
17

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))).
18

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”).
19

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 
20

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-forjot 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.
21

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 
22

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 
23

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”); CartwrightCaps 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”).
24

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. 
25

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.
26

* * * 

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.