So I’ll go ahead and initiate a slow clap here.
While I have no idea how the en banc effort will turn out–although my bet is that the full eleventh Circuit will hear this thing–the Mortgage Bankers Association has really put its bets foot forward in submitting an amicus brief supporting Defendant’s en banc review request in Hunstein.
Now I should note that the MBA was not alone in this effort–not by a long shot. The brief was joined by the ABA, AFSA, CBA, CUNA, and the US Chamber and Housing Policy Chamber. And these are all fine institutions whose input contributed meaningfully to the product (I assume) >:).
But I am giving the MBA the big nod here, mostly because they included me most closely in liaising on its creation. (And obviously the folks at Bradley did an outstanding job absorbing input and crafting something really special.)
What I most love to see is the heavy heavy focus on First Amendment issues. For so long the First Amendment has been an after thought for most civil litigators. I can only assume that’s because the law is dense and squishy at times. Or perhaps its that many lawyers don’t feel comfortable wielding the powerful sword of constitutional doctrine. Not all are worthy, I suppose.
But the TCPA has so democratically made a King Arthur of all of us recently and I love to see the free speech discussion front and center. (I note that I think the reliance on Central Hudson is… wrong after AAPC but hey if we win under CH I’ll take it.)
The brief is also outstanding in laying out the harm to folks in the financial services industry–a classic lock-solid and factually-supported record-building enterprise that the Eleventh Circuit is almost certain to hang its hat on should an en banc review be granted.
Simply stated–I don’t know whether en banc review will be granted but, if it is, THIS brief absolutely helped make the difference.
Brief here: MBA Amicus Brief–Hunstein