Eversheds Sutherland 11th Circuit Business Blog
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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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Preclusive Effect of Engle Findings Against Tobacco Cases Does Not Violate Due Process

In a 7-3 decision, the Eleventh Circuit sitting en banc declined to overrule Walker v. R.J. Reynolds Tobacco Co., 734 F.3d 1278 (11th Cir. 2013), and held (again) that a jury’s negligence and strict liability findings in the Engle class action against tobacco companies may be given preclusive effect in follow-on individual cases without violating the Due Process Clause. Graham v. R. J. Reynolds Tobacco Co., 2017 WL 2176488 (11th Cir. May 18, 2017).  The court also held that the jury’s findings were not preempted by federal law. The majority opinion, written by Judge William Pryor, began by...
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ELEVENTH CIRCUIT WEIGHS IN ON CIRCUIT SPLIT DEFINING COPYRIGHT REGISTRATION

Registration of a copyright is a precondition to a suit for copyright infringement. The Eleventh Circuit joined the minority of circuits to have addressed whether registration occurs when an owner files an application to register the copyright or when the Register of Copyrights registers the copyright in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 2017 WL 2191243 (11th Cir. May 18, 2017). The Ninth, Fifth, and Eight Circuits have chosen the more lenient “application” approach, which requires a copyright owner to plead that he has filed the deposit, application, and required...
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Improper Claim-Splitting Warrants Dismissal

In a case of first impression, the Eleventh Circuit has held that a plaintiff’s second case against a defendant, arising out of the same nucleus of operative facts, was properly dismissed as the product of improper claim-splitting. Vanover v. NCO Fin. Servs., Inc., 2017 WL 2129557 (11th Cir. May 17, 2017). In 2014, Karen Vanover sued NCO Financial Systems in federal court, claiming that NCO violated the Telephone Consumer Protection Act (“TCPA”) in its attempts to collect medical debts from her. Her complaint referred to alleged telephone calls between April 2013 and April 2014.  NCO moved...
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When Choosing a Policy with a “Prior Acts” Exclusion, Buyer Beware

Bank directors ended up with no insurance coverage in Zucker v. U.S. Specialty Insurance Co., 2017 WL 2115414 (11th Cir. May 16, 2017).  The Eleventh Circuit, applying Florida law, applied a “prior acts” exclusion from D&O coverage to allegedly fraudulent transfers which were made after the policy’s inception date but which arose out of bank officers’ alleged misconduct before the policy inception date. The transfers in question were made in January 2009, when BankUnited, a holding company, transferred two tax refunds, totaling $46 million, to its wholly-owned subsidiary. A year earlier,...
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NO ERISA CLAIMS FOR MULTI-EMPLOYER PENSION FUND CONTRIBUTOR

Responding to a pension fund’s dire financial condition, its board passed an amendment requiring employers withdrawing from the fund to pay a portion of the fund’s deficiency. One contributing employer, WestRock, then sought a declaratory judgment that the amendment violated ERISA, arguing on appeal that it had a claim under 29 U.S.C. §§ 1132(a)(10) or 1451(a). Whether these provisions granted a statutory cause of action was the issue of first impression in WestRock RKT Co., v. Pace Industry Union-Management Pension Fund, 2017 WL 2111114 (11th Cir. May 16, 2017). Subsection B of...
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ADA and RA Protect Hospital Patients’ Ability to Exchange Medically Relevant Information

In Silva v. Baptist Health South Florida, Inc., 2017 WL 1830158 (11th Cir. May 8, 2017), the Eleventh Circuit clarified the standard for liability for ADA and RA effective-communication claims against hospitals. The court held that “the relevant inquiry is whether the hospitals’ failure to offer an appropriate auxiliary aid impaired the patient’s ability to exchange medically relevant information with hospital staff.” The plaintiffs brought an action against three hospitals under Title III of the Americans with Disabilities Act (“ADA”), and Section 504 of the Rehabilitation Act of 1973...
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