December 9, 2021

Update on Hunstein Decision: Eleventh Circuit Vacates Original Panel Decision

Case Gets En Banc Rehearing Before the Entire Court
Holland & Knight Alert
Joshua C. Prever | Courtney Oakes Robertson

The U.S. Court of Appeals for the Eleventh Circuit issued its initial opinion on Hunstein v. Preferred Collection and Management Services, Inc., No. 8:19-cv-00983-TPB-TGW on April 21, 2021. As previously discussed in a Holland & Knight alert, the court held that when a debt collector provides an outside letter vendor with personal account information relating to the collection of a debt, it rises to the level of an impermissible communication with a third party to which there is no exception if there is no consumer consent. (See previous Holland & Knight alert, "Financial Services Industry Braces for Impact of Eleventh Circuit's Hunstein Decision, April 27, 2021.) A key issue in the case involved whether the plaintiff had standing to sue. Because of the potential wide-ranging impacts of the decision, including contexts outside of pure debt collection, multiple petitions were filed asking for an en banc rehearing before the entire Eleventh Circuit.

On Oct. 28, 2021, the Eleventh Circuit issued a substitute opinion in an attempt to address an intervening decision from the U.S. Supreme Court in TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021). In Ramirez, the Supreme Court held that the mere violation of a statute does not cause a concrete injury that gives a litigant standing to sue. In issuing the substitute opinion, a no longer unanimous court felt obligated to account for Ramirez and why the plaintiff in Hunstein still had standing. The now two-judge majority doubled down on its reasoning that standing was not just based on the mere violation of a statute, but rather that the statute stemmed in part on common law theories that sharing data with a third party was akin to an invasion of privacy. And that it was this common law heritage of the statute that provided the plaintiff with a potential concrete injury when the data was shared. Judge Gerald Tjoflat disagreed, noting in his dissent that the data shared with the letter vendor was not published to the public at large – a key element in an invasion of privacy claim – and that without this key element there could be no invasion of privacy and therefore no standing. In the end, Judge Tjoflat stated that in light of Ramirez, he could no longer support the majority opinion, as it "sweeps much more broadly" than the Supreme Court would allow.

Most recently, on Nov. 17, 2021, the Eleventh Circuit issued an opinion stating that the entire court will rehear this matter en banc based on a majority poll of the judges and vacated all prior orders issued by the Eleventh Circuit. Briefing before the entire court is set to commence on Dec. 23, 2021, and conclude on Feb. 22, 2022. Based on Judge Tjoflat's dissent and his analysis of the Supreme Court's Ramirez decision, it seems likely that the judges want to focus on the standing issue in Hunstein. Having the entire Eleventh Circuit take this case on may be a positive sign for the industry, however, caution is still recommended when sharing personal account information with vendors.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.

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