Eversheds Sutherland 11th Circuit Business Blog
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Third Time No Charm for Bank in Arbitration Bid

In its third trip to the Eleventh Circuit attempting to enforce an arbitration agreement in a would-be class action involving bank debit card overdraft practices, the bank’s motion to compel arbitration was again denied, this time because of what the court concluded was a failure to agree on arbitration. Dasher v. RBC Bank (USA), 2018 WL 832855 (11th Cir. Feb. 13, 2018). The saga began with an attempt by the bank, at the outset of the litigation, to enforce an arbitration provision in a 2008 customer account agreement. The district court denied that motion, but the denial was vacated on...
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En Banc Reminder: Even Self-Serving and Uncorroborated Affidavits Can Preclude Summary Judgment

On January 31, 2018, the full Eleventh Circuit held “that an affidavit which satisfies Rule 56 of the Federal Rules of Civil Procedure may create an issue of material fact and preclude summary judgment even if it is self-serving and uncorroborated.” United States v. Stein, 2018 WL 635960 (11th Cir. Jan 31, 2018) (en banc). The court treated the case as an opportunity to bring its tax precedent back into line, but the broader holding applies to all summary-judgment cases. The Stein case involved federal tax assessments. The Government had obtained a summary judgment for back taxes, interest,...
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Presumption Against Extraterritoriality Applied to Alien Tort Statute in Jurisdictional Dispute over Folk Singer’s Death

A popular Chilean folk singer named Víctor Jara was tortured and killed in the wake of the 1973 military coup that toppled Salvador Allende’s government and brought Augusto Pinochet to power. Nearly 40 years later, Jara’s family discovered that his suspected killer, a former Chilean military officer named Pedro Pablo Barrientos Núñez, had moved to Florida and become a U.S. citizen. Barrientos refused to leave the country to face murder charges in Chile, so Jara’s family sued him in federal district court under the Alien Tort Statute, 28 U.S.C. § 1350, and the Torture Victim Protection Act of...
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Be Careful What You Wish For—Eleventh Circuit Rejects Argument That Appellant’s Own Requested Jury Charge Requires Reversal

In Smith v. R.J. Reynolds Tobacco Co., 2018 WL 549141 (11th Cir. Jan. 25, 2018), an Engle progeny tobacco case, the Eleventh Circuit rejected the defendant’s argument that the jury’s compensatory damages award should be reduced based on comparative fault. The relevant legal question was settled last month, when the Florida Supreme Court clarified in Schoeff v. R.J. Reynolds Tobacco Co., 2017 WL 6379591 (Fla. Dec. 14, 2017), that a defendant found liable for both intentional and non-intentional tort claims is not entitled to a reduction in compensatory damages. But the parties’ proposed jury...
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All That Glitters Isn’t Gold—Eleventh Circuit Affirms Injunction and Restitution Award Against Unregistered Traders in Metals Futures

In U.S. Commodity Futures Trading Commission v. Southern Trust Metals, Inc., 2018 WL 493116 (11th Cir. Jan. 22, 2018), the Eleventh Circuit affirmed an injunction and (most of) a restitution award against two companies and their principal for unregistered trading in metals futures. Southern Trust told its customers that it would invest their money in precious metals, and could also lend them money for the investments. But Southern Trust did not actually trade in metals. Instead, Southern Trust’s CEO, Robert Escobio, opened accounts in two foreign futures brokerages under the name of Southern...
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Formality Needed to Secure Post-Dismissal Amendment Right

Last week, in Cita Trust Co. AG v. Fifth Third Bank, 2018 WL 416253 (11th Cir. Jan 16, 2018), the Eleventh Circuit affirmed the dismissal of a $400-million contract dispute over an unauthorized bond transfer, demonstrating that the court will strictly enforce both procedural rules and contracts negotiated by sophisticated entities. This dispute concerned a transfer of bonds. Cita, a Swiss trust, had contracted with Fifth Third, a U.S. bank, for Fifth Third to take custody of certain bonds purportedly valued at $428 million. For reasons that neither party saw fit to inform the court, Fifth...
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Supreme Court Grants Cert. in Bankruptcy Discharge Case

The Supreme Court granted cert. on January 12, 2018, to review Appling v. Lamar, Archer & Cofrin, LLP (In re Appling), 848 F.3d 953 (11th Cir. 2017), which we reported on below.  The case, which involves the bankruptcy discharge exception for fraud, will be heard this term. Posted by Tom Byrne.
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Court Limits Right to Cure Improper “Shotgun” Pleadings

The term “shotgun pleading” refers to a complaint that, for one reason or other, fails to give the defendants adequate notice of the claims against them. In the Eleventh Circuit, courts have identified roughly four categories of shotgun pleadings: (1) a pleading with multiple counts where each count adopts the allegations of all preceding counts; (2) a pleading that relies on conclusory and vague allegations not tied to any cause of action; (3) a pleading that fails to separate out its various causes of action and claims for relief; and (4) a pleading that asserts numerous claims against...
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Eleventh Circuit Declines to Revisit Dreadlocks Discrimination Case En Banc

Nearly a full year after issuing a revised opinion supporting an initial holding that hairstyles and other “cultural characteristics”—like dreadlocks—cannot form the basis for a Title VII claim of intentional racial discrimination, the Eleventh Circuit denied the Equal Employment Opportunity Commission’s petition for rehearing en banc in EEOC v. Catastrophe Management Solutions (CMS), 2017 WL 6015378 (11th Cir. Dec. 5, 2017). Judge Adalberto Jordan wrote the Eleventh Circuit’s original and revised opinions in the case, and he specially concurred in the denial of rehearing en banc. Doubling...
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Bankruptcy Debtors Can Recover Attorneys’ Fees Spent in Enforcing Stay and Seeking Damages, Including for Appeals

Richard and Patricia Horne filed for bankruptcy protection under Chapter 7 of the Bankruptcy Code. After the bankruptcy was filed and the automatic stay imposed by Section 362(a)(1) went into effect, Mary Mantiply, an attorney, filed a state court action against the Hornes on behalf of Mantiply’s client. Mantiply repeatedly refused to dismiss the case, even after being informed of the bankruptcy and the stay. The Hornes filed a motion in the bankruptcy court seeking damages for Mantiply’s violation of the automatic stay, relying on 11 U.S.C. § 362(k)(1), which provides (subject to an...
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A Private Plaintiff Cannot Sue FINRA for a Violation of Its Own Rules

In Turbeville v. FINRA, 2017 WL 4938821 (11th Cir. Nov. 1, 2017), a panel of the Eleventh Circuit held that a former registered representative’s purported state-law claims against FINRA were properly dismissed because there exists no private right of action against FINRA, a self-regulatory organization (“SRO”), for alleged violations of its own rules. In 2009, FINRA filed an administrative complaint against Turbeville, who was then a registered representative of a FINRA-affiliated firm, alleging that Turbeville had committed securities fraud in his recommendations to an elderly couple. A...
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RIVAL CLASS COUNSEL BATTLE OVER SETTLEMENT

An unseemly squabble between rival class-action firms drew the attention of the Eleventh Circuit in Technology Training Associates, Inc. v. Buccaneers Ltd. Partnership, 2017 WL 4819371 (11th Cir. Oct. 26, 2017).  The court remanded the case for further combat over approval of an approximately $20 million class action settlement in a Telephone Consumer Protection Act case against the Tampa Bay Buccaneers, who allegedly sent out over 180,000 unsolicited faxes concerning tickets.  A class action was brought by Anderson + Wanca (“A + W”).  No settlement could be reached, and cross-motions for...
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Court Compels Individual Arbitration of Consumer Class Action

In Larsen v. Citibank FSB, 871 F.3d 1295 (11th Cir. Sept. 26, 2017), the Eleventh Circuit reversed the Southern District of Florida’s denial of a motion to compel arbitration of a consumer debt class action.  The plaintiff, David Johnson, filed a putative class action alleging that Defendant KeyBank had improperly changed the sequence of debit card transactions to maximize overdraft fees charged to the account. Johnson was a longtime KeyBank customer, having opened his first checking account with the bank in 1991. In October 2001, he opened the 2001 Signature Card.  The 2001 Signature Card...
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Eleventh Circuit Digs Deep to Revive SCAD Trademark Suit

In an October 3, 2017, opinion, a panel of the Eleventh Circuit reversed the Northern District of Georgia’s grant of summary judgment for the defendant in a trademark-infringement suit brought by Savannah College of Art and Design (SCAD).  In Savannah College of Art and Design, Inc. v. Sportswear, Inc., 2017 WL 4369451, the court held that the district court erred in concluding that SCAD had failed to establish that it controlled the use of its name and acronym for use on clothing.  The Court reminded that, while “[i]mitation may be the sincerest form of flattery,” when that imitation...
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