In Nyanhongo v. Credit Collections Servs., the Eastern District of Pennsylvania held that the display of “data symbols similar to a” quick response code (QR Code), without more, was insufficient to establish Article III standing.

In March 2020, Credit Collections Services mailed Tatenda Nyanhongo a collection letter. The outside of the envelope displayed the phrase “PERSONAL & CONFIDENTIAL” and data symbols, similar to a QR Code, on the letter were visible through a glassine window. Nyanhongo filed a class action alleging that hundreds of similar envelopes were mailed statewide in violation of Section 1692f(8) of the Fair Debt Collection Practices Act (FDCPA).

Article III of the Constitution limits the exercise of judicial power to cases and controversies. To establish Article III standing, a plaintiff must establish (1) she suffered injury-in-fact; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to speculative, that favorable decision will redress the injury.

In turn, Section1692f(8) of the FDCPA prohibits debt collectors from using “any language or symbol, other than the debt collector’s address, on any envelope when communicating with a consumer by use of the mails.”

The Third Circuit has previously analyzed whether a consumer alleging a violation of Section 1692f(8) pled a concrete injury sufficient for Article III standing. In St. Pierre v. Retrieval-Masters Creditors Bureau, the court found that displaying a debtor’s account number on an envelope “implicates a core concern animating the FDCPA — the invasion of privacy,” which “is closely related to harm that has traditionally been regarded as providing a basis for a lawsuit in English and American courts.” In DiNaples v. MRS BPO, LLC, the Third Circuit in 2019 extended its rationale in St. Pierre by holding that QR Codes on the face of an envelope, that display account numbers when scanned, violate the FDCPA.

Fatally, Nyanhongo did not allege what, if anything, would be revealed if the data symbols on the envelope she received were scanned. In relying on DiNaples, the court stated that she “fail[ed] to establish standing because she does not clearly allege facts explaining how the information on the envelope conveyed ‘private information,’ ‘implicated core privacy concerns,’ or otherwise caused a concrete injury.”

The court dismissed Nyanhongo’s lawsuit without prejudice. It is unclear whether Nyanhongo will try to file an amended complaint or try to pursue these claims in state court. Watch this space for further developments.