Wednesday, November 17, 2021

FYI: 11th Cir "Letter Vendor" FDCPA Ruling Vacated, Court to Rehear Case En Banc

On their own initiative, the active judges of the U.S. Court of Appeals for the Eleventh Circuit have taken a vote and will hear the appeal, en banc, in Hunstein v. Preferred Collection and Management Services, Inc.


In addition, the Circuit issued an order vacating the Oct. 28, 2021 substituted opinion in Hunstein.  As an en banc appeal, the matter is now considered by all of the active judges of the Eleventh Circuit Court of Appeals.


The Oct. 28 opinion found that the debt collector's use of a letter vendor to print and send a dunning letter to a consumer sufficiently alleged a violation of section 1692c(b) of the federal Fair Debt Collection Practices Act and that the complaint's allegation that the information was disclosed to employees of the letter vendor was sufficient to allow the plaintiff to proceed in federal court. We discuss that opinion in detail here. 


The effect of today's order is that the Oct. 28 opinion is no longer "law" and all the active judges of the Eleventh Circuit will consider the appeal anew.


We expect Chief Judge William H. Pryor, Jr. will appoint three appeal managers. The appeal managers will decide what issues will be considered on rehearing and then prepare a proposed notice to the parties listing the issues to be briefed. Before the notice is issued, the appeal managers circulate it to the en banc court. Other judges can suggest changes, but the appeal managers have significant influence over the scope of the appeal.


We anticipate one appeal manager will be Judge Kevin C. Newsom, the author of the vacated Oct. 28 opinion. Typically, a dissenter would also be appointed as an appeal manager, in this case that would be Judge Gerald Tjoflat. However, Judge Tjoflat is on senior status and is not an "active judge" of the Circuit. Thus, we expect another judge may fill his role. Finally, the judge who requested the poll will probably be the third appeal manager.




Ralph T. Wutscher
Maurice Wutscher LLP
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