Summarizing Yesterday’s Hunstein Hearing

Now, the waiting begins.

The entire panel of judges on the Eleventh Circuit Court of Appeals heard oral arguments yesterday in Hunstein v. Preferred Collection & Management Services, the latest legal skirmish in a case that has been the most closely watched and scrutinized Fair Debt Collection Practices Act lawsuit in years.

If you have not yet listened to the arguments — no video is available — you can do so by clicking here. The hearing lasts about 47 minutes and while it delves into many hypothetical situations and legal theories that would make most non-lawyers’ eyes glaze over, it is fascinating to hear some of the country’s top legal experts debate the ins and outs of one tiny section of the FDCPA. If you don’t have time or can’t listen to the ruling, I took the liberty of creating a transcript. It’s not 100% accurate, but should work if you would prefer to read what happened instead of listening to it. The transcript can be accessed by clicking here.

The arguments yesterday focused on whether the plaintiff — who accused a collection agency of violating Section 1692c(b) of the FDCPA by sending information about himself, his child, and a medical debt that he allegedly owed to a vendor that printed and mailed collection letters — suffered a concrete injury and had standing to sue. The plaintiff did not specifically allege that an employee or employees of the vendor saw the information as the letter was being printed and mailed, but did infer that such an event could have happened.

There are any number of possible outcomes that the Eleventh Circuit could choose when it issues its ruling in the case. Suffice to say that whatever the Eleventh Circuit does say, it likely will not be the last that the accounts receivable management industry hears of Hunstein v. Preferred Collection & Management Services. reached out to legal experts within the ARM industry for their reaction and perspectives of yesterday’s hearing. Here is what some of them had to say:

MANNY NEWBURGER, BARRON & NEWBURGER: I think the argument highlights the problems with attacking this type of claim with a motion under Rule 12. The court gets caught up in hypotheticals that are likely to have nothing to do with the actual facts. A factual record (such as would be present with a summary judgment motion) would have allowed for a discussion of how the law applies to what actually happened, rather than to what might theoretically have happened. I suspect that a factual record would have lent great strength to the excellent arguments made by Shay Dvoretsky.

LAUREN VALENZUELA, ACTUATE LAW: What I found interesting about the 11th Circuit’s line of questioning for the plaintiff was the Court trying to clarify when the plaintiff was alleging the purported unauthorized disclosure (i.e., “publicity”) occurred (i.e., at the time the defendant sent details of the plaintiff’s debt to the letter vendor for printing or if/when the vendor’s employees actually read or perceived such information). There was a lot of discussion about the Supreme Court’s footnote in TransUnion v. Ramirez and the Circuit’s questioning for the defendant focused a lot on agency. If there is one thing this oral argument confirmed for me it is this – don’t overlook footnotes, and certainly don’t underestimate the power of a Supreme Court footnote!

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