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By Perry Cooper
Opinions accompanying the Eleventh Circuit’s decision not to rehear a mortgage dispute show that the lower courts continue to struggle with a recent U.S. Supreme Court ruling on standing ( Nicklaw v. Citimortgage Inc. , 2017 BL 145208, 11th Cir., No. 15-14216, en banc review denied 5/1/17 ).
“Frankly, we have never seen a published opinion regarding the denial of a rehearing en banc, let alone where the request for the en banc hearing was made by a sitting member of the circuit court,” defense attorney David Almeida told Bloomberg BNA.
Almeida is a partner at Benesch, Friedlander, Coplan & Aronoff LLP in Chicago and chairs the firm’s class actions group.
“I would certainly expect a more fulsome analysis from the Eleventh Circuit to be forthcoming,” Almeida said. “It is to be seen which side of the circuit will prevail here.”
The U.S. Court of Appeals for the Eleventh Circuit held in October 2016 that Roger Nicklaw didn’t have standing to bring class claims that CitiMortgage Inc. failed to make public a paid-off mortgage.
Judge Beverly B. Martin asked the full court to reconsider the ruling. But a majority of active judges voted against rehearing May 1. The accompanying opinions show “a significant break in how the Eleventh Circuit judges view Spokeo,” Almeida said.
Judge William Pryor, joined by Judge Stanley Marcus, wrote in favor of denial. Pryor said Nicklaw’s claims were exactly the type of statutory harms without concrete injury that the Supreme Court said were inappropriate in Spokeo Inc. v. Robins.
Beverly argued in a dissent to the denial that Spokeo actually worked in Nicklaw’s favor.
“These statutes were crafted in response to a real risk of harm,” she said. “And Mr. Nicklaw has alleged that he suffered that real risk of harm as a result of CitiMortgage’s inaction that violated these statutes.”
An attorney for the plaintiffs didn’t respond to an email request for comment.
Finkelstein Blankinship Frei-Pearson & Garber LLP; Shepherd Finkelman Miller & Shah, LLP; and Consovoy McCarthy represented Nicklaw.
Mayer Brown LLP; Bryan Cave LLP; K&L Gates LLP represented Citimortgage.
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