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11th Circuit Court of Appeals Withholds Issuance of Mandate in Hunstein


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The Hunstein opinion will not become final at this time, but it will remain precedential and binding in the 11th Circuit.

6/14/2021 15:00

On Monday, the 11th Circuit Court of Appeals issued an order withholding the issuance of the mandate as to the April 21, 2021, panel decision in Hunstein v. Preferred Collection & Mgmt. Servs. Inc.

The order withholding the issuance of the mandate means that the Hunstein opinion will not become final at this time. This order would appear to have been precipitated by the petition for en banc rehearing and numerous amicus briefs in support of that petition that the court received in late May and early June.

Note that despite the issuance of this order, the Hunstein panel opinion remains precedential and binding in the 11th Circuit.

The 11th Circuit’s opinion in Hunstein holds that an alleged violation of the third-party disclosure provision under 15 U.S.C. Section 1692c(b) results in an alleged concrete injury under Article III of the U.S. Constitution, ACA International previously reported.

ACA filed an amicus brief after Preferred Collection and Management Services Inc., the defendant-appellee in the Hunstein case, filed a petition for rehearing and for rehearing en banc, asking that the 11th Circuit grant a “panel rehearing or rehearing en banc of the panel’s decision issued on April 21, 2021.” 

In the petition, Preferred’s counsel—ACA Board Member Richard Perr, co-managing partner of Kaufman Dolowich and Voluck LLP, and Robert Vigh of Solomon, Vigh and Springer—argue that the panel opinion departed from U.S. Supreme Court and 11th Circuit precedent on the issue of Article III standing and specifically on whether an alleged statutory violation of 15 U.S.C. Section 1692c(b) constitutes a “concrete injury.”

The approval of a petition for an en banc rehearing would serve to vacate the panel opinion and thereby stay the mandate under 11th Circuit local rules, which additionally provide that amicus briefs may be filed as part of an en banc rehearing once granted.

In addition, ACA—with the support of the Industry Advancement Fund (IAF)—is already working on alternative options if the en banc process doesn’t work. In the event of a denial of the petition for an en banc rehearing, ACA and the IAF stand ready to provide support for a petition for writ of certiorari to the U.S. Supreme Court.

ACA will continue to provide updates for members on the Hunstein Resource Center. Resources include a primer on the case, the case status, an interactive case tracker map from WebRecon, amicus briefs and information on how to respond to lawsuits.

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