We’re keeping a close eye on the impact of the big Hunstein ruling from the Eleventh Circuit.

Yesterday a court in Illinois became the first to apply the case, albeit indirectly. But the intersection between debt collection and consumer privacy laws was on clear display.

In Giannini v. United Collection Bureau, No. 20 CV 5131, 2021 U.S. Dist. LEXIS 94150 (N.D. Ill.  May 18, 2021) the Plaintiff argued that supplying a debtor with a collector’s privacy policy constituted a violation of the TCPA for some reason.

While rejecting the Plaintiff’s odd theory, the Court paused to take note of Hunstein and also of the broader possibility that consumer information might be misused in the collection or servicing of a debt.

Specifically:

Giannini has not plausibly alleged that UCB’s inclusion of the privacy notice violated the FDCPA. Indeed, she concedes that the substance of the notice did not contain false, deceptive, misleading, unfair, or unconscionable information. She posits, however, that the notice was not required by law and “totally unnecessary,” so its inclusion was inherently confusing and intimidating. But “unnecessary” is hardly synonymous with “unfair,” and voluntarily including an accurate statement of a creditor’s privacy policy is not a practice that is false or deceptive, let alone unconscionable. And Giannini does not allege that UCB unlawfully collected or shared her information with anyone.

That last line should send shivers down a lot of spines. The idea that unlawful “collection” and “sharing” of information in the context of servicing/collection might violate the FDCPA (or other laws) is something that needs to be kept front of mind in an industry that commonly skip traces and investigates the whereabouts of persons and collateral alike.

As to Hunstein, the Court notes that Plaintiff did not allege facts consistent with the Eleventh Circuit’s big ruling:

Hunstein held that a debt collector violated 15 U.S.C. § 1692c(b) when it electronically transmitted the plaintiff’s data to its dunning-letter vendor without the plaintiff’s consent… Here, there is no allegation that UCB transmitted any of Giannini’s information unlawfully or without her consent. And contrary to Giannini’s arguments in her motion, the privacy notice’s suggestion that sharing personal information could, in some instances, comply with the FDCPA is not false or misleading. As Hunstein notes, § 1692c(b) alone includes several exceptions that demonstrate some transmission can be lawful under the FDCPA. 

Notice, then, that the Illinois Court cited Hunstein with approval–albeit on a slightly removed issue–when it could have outright ignored or rejected the decision.

But pay attention to the bolded portion of the reasoning set forth above. The Illinois court views Hunstein as a case about the “transmittal” of “information without consent” i.e. this is a pure data privacy issue divorced from the context of debt collection. That’s quite significant and suggests that future courts applying Hunstein will not be shy about applying it beyond its “dunning letter” roots.

While Giannini’s application of Hunstein arose in a somewhat unusual procedural posture, the case certainly counsels keeping data privacy issues on the front burner–especially when collecting or servicing debt.

We’ll keep an eye on Hunstein for you since I know there is a ton of interest in this non-TCPA case.