On October 28, 2021, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit vacated its original opinion on the matter of Hunstein v. Preferred Collection and Management Services, Inc. and replaced it with a new ones. New ones that reaffirm the central arguments of the original decision and defends it based upon the United States Supreme Court decision in TransUnion v. Ramirez. While only one judge dissented, the outcome is rather murky and ripe for various legal interpretations.
Back on April 21, 2021, the U.S. Court of Appeals for the Eleventh Circuit issued a decision on Hunstein v. Preferred Collection and Management Services, Inc., in which on first impression, found that a debt collector’s transmittal of a consumer’s personal information to its letter vendor constituted a prohibited third-party communication “in connection with the collection of any debt” within the meaning of section 1692c(b) of the Fair Debt Collection Practices Act (“FDCPA”). This ruling had broad ramifications for the accounts receivable management industry and has spawned a new wave of FDCPA litigation.
Within ten days of the Eleventh Circuit Hunstein FDCPA decision, 70 new FDCPA lawsuits were filed in federal courts across the nation. These lawsuits, so far, have targeted the use of vendor-based mailing according to data compiled by the FDCPA, FCRA and TCPA lawsuit monitoring company of WebRecon LLC and Barron & Newburger PC.
Since then, the numbers of Hunstein related cases has only increased. Many of these cases were dismissed as Judges questioned the veracity of allegations as lacking in standing of concrete injury as prescribed by the United States Supreme Court decision in TransUnion v. Ramirez.
Now that the 11th Circuit has issued new opinions on the matter, it will be interesting to see how these are embraced from a strategic legal standpoint. With this being a Circuit court decision and the only one of its kind, this is the law of the land, that is until dissenting circuit rulings are made.
In the 11th Circuits Appeals vacating of and substitution of opinion, they restated new opinions on under what terms that the ruling would bear standing;
Article III standing entails three elements: injury in fact, causation, and redressability.
A plaintiff can meet the concreteness requirement in any of three ways. First, he can allege a tangible harm—a category that is “the most obvious and easiest to understand” and that includes, among other things, physical injury, financial loss, and emotional distress.
Second, a plaintiff can allege a “risk of real harm.”
Third, in the absence of a tangible injury or a risk of real harm, a plaintiff can allege an intangible-but-nonetheless-concrete injury, including one resulting from a statutory violation.
Hunstein can’t demonstrate a “risk of real harm.” “[W]hile very nearly any level of direct injury is sufficient to show a concrete harm, the risk-of-harm analysis entails a more demanding standard courts are charged with considering the magnitude of the risk.”
Although this decision was an eagerly awaited FDCPA ruling, it isn’t very likely that the new opinion will be the final word on the matter.
11th Circuit Court of Appeals vacates Hunstein decision – Issues a new one
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