In today’s world nearly everyone’s name, address and various other pieces of arguably personal information reside on many companies’ computer servers. Sharing of such information between companies has resulted in countless class action suits, in many of which the alleged harm is negligible at best. The Supreme Court’s decision on Article III standing in TransUnion LLC v. Ramirez, 594 U.S. 413 (2021) (my blog post), set some ground rules for these types of suits. It has led to extensive debate in the lower courts regarding how to apply the Court’s test in cases alleging invasion of privacy. The Third Circuit recently weighed in, with the majority of the panel concluding that the fact that information was passed on to a single third-party vendor for a ministerial purpose was insufficient to establish standing.

In Barclift v. Keystone Credit Services, LLC, No. 22-1925, – F.4th –, 2024 WL 655479 (3d Cir. Feb. 16, 2024), the plaintiff sued under the Fair Debt Collection Practices Act (FDCPA), alleging that the defendant debt collector violated the FDCPA by providing certain information to a third-party mailing vendor for the purpose of sending the plaintiff a debt collection letter. The plaintiff alleged that this purportedly “caused her embarrassment and stress, invaded her privacy, and inflicted reputational harm.” The plaintiff further alleged that the vendor maintained such data electronically for years, and had once had a data breach (unrelated to her information). The district court held that this was insufficient to establish standing, and the Third Circuit affirmed in a 2-1 decision.

The only issue in dispute was whether, for purposes of standing, the plaintiff had alleged an “injury in fact,” which must be “concrete and particularized.” The Third Circuit 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.’” In applying this rule, the courts of appeals have applied one of two approaches: (1) an ”element-based approach,” focused on whether the plaintiff alleged all of the elements of a common law tort; or (2) a harm-based approach, focused on “compar[ing] the kind of harm a plaintiff alleges with the kind of harm caused by the comparator tort.” The Third Circuit adopted the harm-based approach as more closely in line with TransUnion.

Applying the harm-based approach, the Third Circuit held that “[i]nformation 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.” The court further concluded that “the mere assertion that [the vendor’s] employees could access and broadcast [plaintiff’s] personal information to the public is far too speculative to support standing.”

This decision will be helpful to defendants faced with the wave of privacy suits. The debate about where to draw the line, however, will undoubtedly persist. Judge Matey dissented in large part, first criticizing TransUnion, then agreeing with the majority that the harm-based approach was the correct standard, but applying it differently in this case. The dissent would have held that the common law tort of disclosure of private information historically would have found a violation even if the disclosure was to a third party performing a ministerial role, such as a stenographer.

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Photo of Wystan Ackerman Wystan Ackerman

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you…

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you have something to say.  For those looking for my detailed law firm bio, click here.  If you want a more light-hearted and hopefully more interesting summary, read on:

People often ask about my unusual first name, Wystan.  It’s pronounced WISS-ten.  It’s not Winston.  There is no “n” in the middle.  It comes from my father’s favorite poet, W.H. (Wystan Hugh) Auden.  I’ve grown to like the fact that because my name is unusual people tend to remember it better, even if they don’t pronounce it right (and there is no need for anyone to use my last name because I’m always the only Wystan).

I grew up in Deep River, Connecticut, a small town on the west side of the Connecticut River in the south central part of the state.  I’ve always had strong interests in history, politics and baseball.  My heroes growing up were Abraham Lincoln and Wade Boggs (at that time the third baseman for the Boston Red Sox).  I think it was my early fascination with Lincoln that drove me to practice law.  I went to high school at The Williams School in New London, Connecticut, where I edited the school newspaper, played baseball, and was primarily responsible for the installation of a flag pole near the school entrance (it seemed like every other school had one but until my class raised the money and bought one at my urging, Williams had no flag pole).  As a high school senior, my interest in history and politics led me to score high enough on a test of those subjects to be chosen as one of Connecticut’s two delegates to the U.S. Senate Youth Program, which further solidified my interest in law and government.  One of my mentors at Williams was of the view that there were far too many lawyers and I should find something more useful to do, but if I really had to be a lawyer there was always room for one more.  I eventually decided to be that “one more.”  I went on to Bowdoin College, where I wrote for the Bowdoin Orient and majored in government, but took a lot of math classes because I found college math interesting and challenging.  I then went to Columbia Law School, where I was lucky enough to be selected as one of the minions who spent their time fastidiously cite-checking and Blue booking hundred-plus-page articles in the Columbia Law Review.  I also interned in the chambers of then-Judge Sonia Sotomayor when she was a relatively new judge on the Second Circuit, my only connection to someone who now has one-ninth of the last word on what constitutes the law of our land.  I graduated from Columbia in 2001, then worked at Skadden Arps in Boston before returning to Connecticut and joining Robinson+Cole, one of the largest Connecticut-based law firms.  At the end of 2008, I was elected a partner at Robinson+Cole.

I’ve worked on class actions since the start of my career at Skadden.  Being in the insurance capital of Hartford, we have a national insurance litigation practice and I was fortunate to have the opportunity to work on some prominent class actions arising from the 2004 hurricanes in Florida and later Hurricane Katrina, including cases involving the applicability of the flood exclusion, statutes known as valued policy laws, and various other issues.  My interest and experience in class actions gradually led me to focus on that area.

In Connecticut courts I’ve defended various kinds of class actions that go beyond insurance, including cases involving products liability, securities, financial services and consumer contracts.

My insurance class action practice usually takes me outside of Connecticut.  I’ve had the pleasure of working on cases in various federal and state courts and collaborating with great lawyers across the country.  While class actions are an increasingly large part of my practice, I don’t do exclusively class action work.  The rest of my practice involves litigating insurance coverage cases, often at the appellate level.  That also frequently takes me outside of Connecticut.  A highlight of my career thus far was working on Standard Fire Ins. Co. v. Knowles, the U.S. Supreme Court’s first Class Action Fairness Act case.  I was Counsel of Record for Standard Fire on the cert petition, and had the pleasure of working with Ted Boutrous on the merits briefing and oral argument.

I started this blog because writing is one of my favorite things to do and I enjoy following developments in class action law, writing about them and engaging in discussion with others who have an in interest in this area.  It’s a welcome break from day-to-day practice, keeps me current, broadens my network and results in some new business.

When I’m not at my desk or flying around the country trying to save insurance companies from the plaintiffs’ bar, or attending a conference on class actions or insurance litigation (for more on those, see the Seminars/Programs page of this blog), I often can be found playing or reading with my young daughter, helping my wife with her real estate and mortgage businesses, reading a book about history or politics, or watching the Boston Red Sox (I managed to find bleacher seats for Game 2 of the 2004 World Series when Curt Schilling pitched with the bloody sock).  When the weather is good I also love to take the ferry to Block Island, Rhode Island and ride a bike or walk the trails there. If you go, I highly recommend the Clay Head Trail.