So a number of folks have recently discussed the fact that the mandate in Hunstein was withheld, as if it was some sort of indicator that the Eleventh Circuit was likely to grant en banc review. While I am on record predicting that the Eleventh Circuit WILL grant a rehearing, the fact that the mandate was withheld does not necessarily portend that result. Indeed, the withholding of the mandate is more-or-less automatic under the rules of appellate procedure as I read them. So I didn’t even mention the issue on TCPAWorld since, you know, it didn’t seem to matter.
Well one Defendant’s counsel apparently disagreed and recently went “all in” on the mandate issue urging a district court to stay a Hunstein complaint because, inter alia, the mandate in Hunstein was withheld by virtue of the rules. Indeed the Defendant went so far as to imply Hunstein was not a published decision owing to the mandate being withheld.
It did not go well.
In Durling v Credit Corp Solutions, Case no. 21-61002-CIV-SMITH, Doc. no. 24 (S.D. Fl. Jul. 8, 2021) the court refused to stay a case pending the outcome of the Hunstein en banc petition. To read more click here. Ruling here: durling ruling