Huber v. Simon’s Agency, Inc., 2023 U.S. App. LEXIS 27069 (3d Cir. October 12, 2023) (Krause, C.J.) Since it entered the scene in 1989, the informational injury doctrine of Article III standing has generated its share of confusion, and with each new case, its contours have come into sharper focus. In this case, Appellee Jamie Huber and the class of consumers she seeks to represent brought suit under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692-1692p, after receiving confusing collection letters from Appellant Simon’s Agency, Inc. (SAI). The District Court agreed the letters were “misleading and deceptive” in violation of the Act, certified the class, and granted summary judgment in its favor. App. 41. It also rejected SAI’s jurisdictional challenge to the plaintiffs’ standing under Article III, holding that while confusion from the letter, without more, would not suffice, Huber had standing under the informational injury doctrine because she suffered a concrete financial consequence as a result of her confusion, and the other class members had standing under “the same theory” because they “inevitably” could be expected to suffer the same harm. App. 48.
We agree with the District Court that Huber has standing, but not under the informational injury doctrine. After the District Court rendered its ruling, we decided Kelly v. RealPage Inc., which clarified that a plaintiff who seeks to establish standing based on an “informational injury” must identify “omitted information to which she has entitlement[.]” 47 F.4th 202, 213 (3d Cir. 2022). Huber did not do so and, therefore, did not suffer an informational injury.
But she does have standing on a different basis—that the financial harm she suffered in reliance on the letter bears a “close relationship” to the harm associated with the tort of fraudulent misrepresentation. Spokeo, Inc. v. Robins, 578 U.S. 330, 341, 136 S. Ct. 1540, 194 L. Ed. 2d 635 (2016). If the other proposed class members can also make that showing, they, too, will have standing, but confusion alone does not constitute concrete injury, and the present record does not reflect whether any of the class members suffered any consequences beyond confusion.
For these reasons, we will affirm the District Court’s determination that SAI’s letter violated the FDCPA, 15 U.S.C. § 1692e, and that Huber herself has standing, but we will remand for the District Court to consider the extent to which unnamed class members may have standing to “recover individual damages,” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2208, 210 L. Ed. 2d 568 (2021), and the implications of that determination for class certification under Federal Rule of Civil Procedure 23(b)(3).
Like the Eleventh Circuit in Cordoba, we conclude that remand is necessary here owing to the lack of evidence in the record indicating how many members of Huber’s class are likely to have standing and how burdensome that showing will be for both the District Court and the parties. Because the District Court decided that Huber and the unnamed members of her class suffered informational injuries, the Court had no occasion to consider how individualized evidence of unnamed class members’ standing would affect the balance of common [*41] versus individual issues for purposes of predominance, or what proportion of the class could be expected to establish standing. Thus, the District Court must assess the implications of those individualized showings for the predominance requirement of Federal Rule of Civil Procedure 23(b)(3). See Neale, 794 F.3d at 368.
On remand, Huber should submit evidence enabling the District Court to estimate “how many class members (or what proportion of them)” have standing. Cordoba, 942 F.3d at 1275. Additionally, the Court should evaluate the feasibility of receiving individualized evidence on class members’ standing. If the Court surmises that few class members will be able to show they undertook the kind of detrimental action or inaction required for standing or that “it will be extraordinarily difficult to identify those who did,” id. at 1275, then Huber’s proposed class is not “sufficiently cohesive to warrant adjudication by representation,” Reinig, 912 F.3d at 127 (quoting In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 311 (3d Cir. 2008)). By contrast, if many class members appear likely to satisfy standing “or if there is a plausible straightforward method to sort them out at the back end of the case, then the class might appropriately proceed as it is currently defined.” Cordoba, 942 F.3d at 1275.
