Citing the Supreme Court’s recent opinion in TransUnion v. Ramirez, the defendant in Hunstein v. Preferred Collection & Mgmt. Servs. Inc. and ACA International have submitted letters of supplemental authority to the 11th Circuit, arguing that Ramirez all but requires the court to take up the en banc petition on issues of standing and on the merits.
The defendant debt collection agency in Hunstein v. Preferred Collection & Mgmt. Servs. Inc. and ACA International both recently filed letters of supplemental authority with the 11th Circuit Court of Appeals under Federal Rule of Appellate Procedure 28(j).
The letters bring to the 11th Circuit’s attention relevant portions of the U.S. Supreme Court’s June 25 decision in TransUnion LLC v. Ramirez and argue that the high court’s clarification of standing principles, as well as a footnoted discussion of agency principles, should be enough to compel the 11th Circuit to reconsider the April 21 panel opinion issued in Hunstein.
Preferred Collection’s 28(j) Letter
In its letter, Preferred Collection and Management’s counsel, ACA Board Member Richard Perr, co-managing partner of Kaufman Dolowich & Voluck, LLP, argues that in Ramirez, “[t]he Supreme Court implicitly recognized that providing information to a letter vendor is not a ‘publication’ and does not cause an injury-in-fact sufficient to provide standing.”
Preferred’s letter further notes that just as the class members in Ramirez had not suffered an injury-in-fact from the processing of internal communications, neither had Hunstein.
Perr tells the 11th Circuit that the TransUnion decision “compels the necessity to grant a rehearing or a rehearing en banc” in Hunstein.
ACA’s 28(j) Letter
ACA’s letter, prepared and filed by amicus counsel Shay Dvoretzky, head of the Supreme Court and Appellate Litigation Group of Skadden, Arps, Slate, Meagher & Flom LLP, states that the Supreme Court’s opinion in Ramirez “undercuts the panel’s analyses on both Article III standing and statutory interpretation and makes clear that rehearing is warranted.”
The letter continues: “The Supreme Court’s analysis establishes that disclosures to letter vendors to assist with mailings are not to ‘third parties.’ Instead, such disclosures are ‘internal’ communications. That analysis reinforces ACA’s explanation of how background agency-law principles exempt communications with vendors from the FDCPA’s third-party communications bar.” (Citations omitted.)
Hunstein Case Recap
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) may plausibly result in a concrete injury under Article III of the U.S. Constitution, as 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 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.”
Were the 11th Circuit to grant Preferred’s petition for an en banc rehearing, it would vacate the April 21 panel opinion. The court has already issued an order withholding the issuance of the mandate in Hunstein, although the panel decision remains precedential within the 11th Circuit.
In addition, ACA—with the support of the Industry Advancement Fund (IAF)—has already begun working on alternative options should the en banc effort fail. For example, ACA and IAF stakeholders have already begun to evaluate the viability of a petition for certiorari seeking a possible Supreme Court review of the Hunstein panel opinion.
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.