Eversheds Sutherland 11th Circuit Business Blog
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Judge Frank M. Hull Taking Senior Status

The media are reporting that Judge Hull has informed President Trump that she intends to take senior status.  She has been on the Eleventh Circuit for almost twenty years, after being elevated from the Northern District of Georgia by President Bill Clinton in 1997.  This vacancy will give President Trump his second opportunity to appoint a member of the Eleventh Circuit, after Kevin Newsom was confirmed as the court’s newest judge earlier this August. Judge Hull started her legal career as a law clerk to Eversheds Sutherland founding partner Judge Elbert P. Tuttle. Posted by Margaret...
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Don’t Call Me Maybe—TCPA Consent Can Be Partially Revoked

The Eleventh Circuit has held that the TCPA permits a consumer to partially revoke her consent to be called. Schweitzer v. Comenity Bank, 2017 WL 3429381 (11th Cir. Aug. 10, 2017). Emily Schweitzer had a past-due credit card account with Comenity Bank. The bank called her cell phone (the number which she had provided in her application) using an autodialer.  In October 2013, during a conversation with a bank representative, Schweitzer said, “if you guys cannot call me, like, in the morning and during the work day, because I’m working, and I can’t really be talking about these things while...
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Court Rejects Plaintiff’s Claims for FLSA and Rehabilitation Act Violations

This week the Eleventh Circuit affirmed the lower court’s (N.D. Ala.) decision to reject a city employee’s claims for violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-219, and the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 794. Boyle v. City of Pell City, 2017 WL 3429383 (11th Cir. Aug. 10, 2017). Judge Fay, writing for the three- judge panel, held that “the law simply does not require an employer to demote or discharge an employee” or create a new position “to accommodate another employee who is disabled.” The City of Pell City (the “City”) employed...
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“Gateway” Issue Delegation to an Arbitrator is Enforceable, Without Qualifications; Circuit Split Noted

The Eleventh Circuit enforced an employment-related arbitration agreement’s provision delegating to the arbitrator “gateway” questions of arbitrability in Jones v. Waffle House, Inc., 2017 WL 3381100 (11th Cir. Aug. 7, 2017).  The opinion, written by Judge Marcus and joined by Judge Hull and Judge Clevenger visiting from the Federal Circuit, also rejects the notion, adopted by the Fifth, Sixth, and Federal Circuits, that a court may except from the delegation analysis claims the court considers “wholly groundless.” Jones unsuccessfully applied for a job at a Florida Waffle House in 2014. He...
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Appeal time runs from stipulation of dismissal filing—not subsequent order

Fed. R. Civ. P. 41(a)(1)(A)(ii) provides that an action may be dismissed, without a court order, by filing “a stipulation of dismissal signed by all parties who have appeared.” Almost invariably, however, district courts respond to the filing of a stipulation of dismissal with their own order of dismissal, as if to make the dismissal official.  In Love v. Wal-Mart Stores, Inc., 2017 WL 3301353 (11th Cir. Aug. 3, 2017), the Eleventh Circuit analyzed which of these two filings—the stipulation or the order—commences the time running for the filing of a notice of appeal. In an opinion for the...
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Kevin Newsom Confirmed as Eleventh Circuit’s Newest Judge

The Senate has confirmed Kevin Newsom as the Eleventh Circuit’s newest judge.  Newsom, 44, is currently the chair of Bradley Arent Boult Cummings’s appellate group.  He graduated summa cum laude from Samford University and magna cum laude from Harvard Law School, and clerked for Judge O’Scannlain on the Ninth Circuit and for Justice Souter.  He will fill the seat previously held by Judge Dubina.  Posted by Valerie Sanders....
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Court Rules Question of Arbitral Venue Presumptively for Arbitrator to Decide

In an international arbitration dispute between an Israeli company (“Profimex”) and an American business (“OAD”) incorporated in the state of Georgia, the Eleventh Circuit ruled this week “that questions of arbitral venue, even those arising in international arbitration, are presumptively for the arbitrator to decide.” Bamberger Rosenheim, Ltd., (Israel) (“Profimex”) v. OA Development, Inc., (United States), 2017 WL 3014354 (11th Cir. July 17, 2017).  Profimex is in the business of raising capital for real estate investments and, in 2008, entered into a solicitation agreement with OAD that...
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Employee Waived Jury Trial on Formation of Arbitration Agreement

  The Eleventh Circuit labored to disentangle a procedural morass in Burch v. P.J. Cheese, Inc., 2017 WL 2885095 (11th Cir. July 7, 2017), ultimately holding that the plaintiff, a former employee alleging violations of a raft of federal employment laws, failed to perfect his right to a jury trial on the existence of an arbitration agreement between him and the defendant employer.  The employer responded to his federal complaint by moving to compel arbitration and to stay the litigation pending the arbitration’s completion.  The district court (N.D. Ala.) denied the motion to compel...
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A Policy-Limits Demand Under Georgia Law May Require Timely Payment as a Condition of Settlement

In Grange Mutual Casualty Co. v. Woodard, 2017 WL 2819729 (11th Cir. June 30, 2017), the Eleventh Circuit applied the Georgia Supreme Court’s holding in Grange Mutual Casualty Co. v. Woodard, 797 S.E.2d 814 (Ga. 2017), to hold that an insurer’s failure to deliver payment within the time required by a policy-limits demand meant that there was no binding settlement between the parties. The dispute arose after a car accident. One of the parties, Woodard, made a policy-limits demand on the other’s insurer, Grange Mutual.  Woodard’s demand recited a list of items that “must be noted and fully and...
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Primary Defendants Tied to Liability for Damages in Class Actions Seeking Monetary Relief

In an opinion published June 14, 2017, Hunter v. City of Montgomery, 2017 WL 2634162, the Eleventh Circuit affirmed the lower court’s remand order under the home state exception to the Class Action Fairness Act (“CAFA”). The central issue was the classification of a party as one of the “primary defendants” within the meaning of CAFA. The case centered on a red-light camera program operated by Montgomery, Alabama and American Traffic Solutions, Inc. (“Traffic Solutions”). The original plaintiff, Charles Hunter, sued Montgomery and Traffic Solutions in Alabama state court, alleging violations...
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ACLU Gets Jurisdictional Discovery from Michael Jackson Because of Disputed Facts

When is a litigant entitled to jurisdictional discovery? The Eleventh Circuit addressed this issue in an opinion published June 20, 2017, ACLU of Florida, Inc. v. City of Sarasota, 2017 WL 2636542, holding that, when the jurisdictional facts are genuinely in dispute and a party does not unduly delay in seeking discovery, the court abuses its discretion if it completely denies jurisdictional discovery. The ACLU of Florida brought a mandamus petition in Florida state court against the City of Sarasota and Michael Jackson, a Florida law enforcement officer. The ACLU sought production of...
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The Federal Medical Device Amendments Do Not Preempt All State-Law Claims

  The Eleventh Circuit applied Florida law and the preemption provisions of the federal Medical Device Amendments of 1976, 21 U.S.C. § 360c et seq., to reverse the district court’s dismissal of some, but not all, of a plaintiff’s claims against the manufacturer of a hip-replacement device. Mink v. Smith & Nephew, Inc., 2017 WL 2723913 (11th Cir. June 26, 2017). The device at issue—a “metal-on-metal” hip replacement system—was a Class III medical device, subject to premarket approval by the FDA. Its approval, when granted, was conditional on the manufacturer’s meeting FDA-imposed...
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Eleventh Circuit Mourns Loss of Judge Phyllis Kravitch

The American legal community lost one of its pioneers yesterday, when the Honorable Phyllis Kravitch died after 38 years as a U.S. circuit judge. Judge Kravitch was born in 1920 in Savannah, Georgia, and she received an LL.B. from the University of Pennsylvania Law School in 1943. She returned to practice law in Savannah, where she became the first woman president of the Savannah Bar Association and later the first woman to be elected as a superior-court judge in the State of Georgia. President Jimmy Carter appointed Judge Kravitch to the U.S. Court of Appeals for the Fifth Circuit in...
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NO TCPA LIABILITY FOR FAXES THAT DO NOT MARKET A PRODUCT

“Unsolicited advertisements” prohibited by the Telephone Consumer Protection Act (TCPA) do not include faxes that merely facilitate the purchase of a product but do not promote the sale of products, the Eleventh Circuit confirmed in Florence Endocrine Clinic, PLLC v. Arriva Medical, LLC, 2017 WL 2415966 (11th Cir. June 5, 2017). The defendant was a supplier of medical equipment directly to consumers. When a consumer who purchased a product from the defendant sought reimbursement from his insurer, the consumer’s doctor had to communicate directly with the defendant. To facilitate this...
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