Eversheds Sutherland 11th Circuit Business Blog
content top

SCOTUS Business Cases This Term (Part 2 – Arbitration)

The Court has several arbitration-related cases before it this term.  Lamps Plus, Inc. v. Varela concerns whether the FAA permits a state-law interpretation of an arbitration agreement that finds a contractual basis for class arbitration without class arbitration’s being specifically mentioned.  New Prime, Inc. v. Oliveira involves the FAA’s exception for “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.”  And Henry Schein, Inc. v. Archer and White Sales, Inc. asks whether a court may...
Continue Reading

Court Revives Challenge to Stranger-Originated Life Insurance Policies (STOLIs)

In Sun Life Assurance Co. of Canada v. Imperial Premium Finance, LLC, 2018 WL 4443054 (11th Cir. Sept. 18, 2018), the Eleventh Circuit reversed the dismissal of fraud and breach of contract claims related to the sale of life insurance policies to strangers to the insureds.  Sun Life Assurance Company sold life insurance to senior citizens, who, in some cases, obtained premium financing with Imperial Premium Finance.  The life insurance policies served as collateral to the financing, so, if an insured defaulted on the loan, Imperial could foreclose on the loan and obtain ownership of the...
Continue Reading

SCOTUS Business Cases This Term (Part 1 – Class Actions)

The Supreme Court’s October term is underway, and the Court has before it several class-action cases.  Frank v. Gaos concerns the permissibility of cy pres relief in class action settlements; Home Depot v. Jackson the ability of a defendant in the original action to remove the action under CAFA; and Nutraceutical Corp. v. Lambert the availability of equitable exceptions to the 14-day time limit for filing a petition under Fed. R. Civ. P....
Continue Reading

Disclosure of Additional Digits on a Credit Card Receipt Sufficient to Confer Article III Standing to Bring a FACTA Claim

The Eleventh Circuit has held that a plaintiff has standing to pursue a claim under the Fair and Accurate Credit Transactions Act (“FACTA”) if a merchant discloses too many digits of a credit card number on a receipt, even without subsequent misuse of the plaintiff’s identity or credit card.  Muransky v. Godiva Chocolatier, Inc., 2018 WL 4762434 (11th Cir. Oct. 3, 2018). Muransky filed a putative class action against Godiva, alleging that Godiva had willfully violated FACTA by including on customers’ receipts more than the last five digits of their credit card numbers.  The inclusion of...
Continue Reading

Denial of Daubert Motion and Dismissal of Fraudulent Transfer Claim Affirmed

In O’Halloran v. Harris Corp. (In re Teltronics, Inc.), 2018 WL 4700578 (11th Cir. Oct. 2, 2018), the Eleventh Circuit affirmed a district court judgment affirming a bankruptcy court order dismissing a fraudulent conveyance claim.  The alleged fraudulent conveyance was the debtor’s transfer of a “blocking right” and right of first refusal under a patent transfer agreement, but the narrow issue addressed on appeal was the bankruptcy court’s denial of the bankruptcy trustee’s Daubert motion to exclude certain expert testimony on the question whether the debtor was insolvent at the time the...
Continue Reading

SPLIT PANEL UPHOLDS DISMISSAL OF FORCE-PLACED INSURANCE CLAIMS UNDER FILED-RATE DOCTRINE

Last week, a split panel of the Eleventh Circuit upheld the dismissal of a class action over “force-placed insurance” under the filed-rate doctrine.  Patel v. Specialized Loan Servicing, LLC, 2018 WL 4559091 (11th Cir. Sept. 24, 2018). The “force-placed insurance” in question concerns the residential mortgage market.  A typical mortgage contract requires the borrower to obtain hazard insurance for the value of the remaining loan balance.  If the borrower fails to maintain such insurance, the lender is entitled to “force-place” insurance on the borrower’s behalf and charge the borrower for...
Continue Reading

Court Upholds Injunction Against FINRA Arbitration of Claims Against Member’s Affiliate

The Eleventh Circuit recently upheld a permanent injunction against arbitration of claims by investors against a FINRA member and its overseas affiliates on the basis that the arbitration did not concern the affiliates’ relevant business activities.  Pictet Overseas, Inc. v. Helvetia Trust, 2018 WL 4560685 (11th Cir. Sept. 24th, 2018). In Pictet, two trusts had opened custodial accounts at Banque Pictet, a Swiss bank, through an asset manager who was unaffiliated with the bank.  The asset manager then stole the trusts’ money.  The trusts commenced a FINRA arbitration to recover the money...
Continue Reading

Court Rejects ADA Exhaustion Argument for Closed Captions

The court held this week that the Twenty-First Century Communications and Video Accessibility Act of 2010, which creates an administrative procedure to address videos lacking closed captions before the FCC, does not create an administrative exhaustion requirement for bringing similar issues under the ADA.  Sierra v. City of Hallandale Beach, Florida, (No. 18-10740 11th Cir. Sept. 27th, 2018).  The court also held that the district court need not abstain from hearing the case in deference to the FCC. TOPIC: Consumer Protection Submitted by Nick...
Continue Reading

Court Revives two Employment Discrimination Suits

The court this week published two employment discrimination opinions.  In one, the court affirmed summary judgment for the Korean-owned defendant on the plaintiff’s claims that she had been discriminated against because she was a woman and an American, but revived her claim that she had been fired in retaliation for complaining.  Gogel v. Kia Motors Manufacturing of Georgia, Inc., 2018 WL 4558300 (11th Cir. Sept. 24th, 2018).  In the other, the court affirmed summary judgment for the defendant on the plaintiff’s discriminatory firing and retaliation claims, but allowed the plaintiff’s...
Continue Reading

Supreme Court to hear Eleventh Circuit Tennessee Valley Authority Case

The Supreme Court granted certiorari over the Eleventh Circuit’s holding that the Tennessee Valley Authority enjoyed governmental immunity in a personal injury suit.  Thacker v. Tenn. Valley Auth., 2018 WL 1091117 (U.S. Sept. 27, 2018).  The Eleventh Circuit held that the TVA was immune from suit because it was engaged in a discretionary government function – a test borrowed from Federal Tort Claims Act jurisprudence.  Thacker v. Tenn. Valley Auth., 868 F.3d 979, 981 (11th Cir. 2017).  Petitioners claim that the FTCA-derived test is not appropriate for an entity such as the TVA, which...
Continue Reading

Availability of Class Arbitration Is a “Question of Arbitrability” to Be Decided by a Court Absent a “Clear and Unmistakable Intent” to Delegate Arbitrability Questions to an Arbitrator

For the second time in as many months, the Eleventh Circuit addressed the question of who—a court or an arbitrator—decides whether an arbitration agreement allows for class arbitration. The court faced this question just last month in Spirit Airlines, Inc. v. Maizes, 899 F.3d 1230 (11th Cir. 2018), but its more recent decision in JPay, Inc. v. Kobel, 2018 WL 4472207 (11th Cir. Sept. 19, 2018), goes further to decide what it terms a “matter of first impression” “that has been expressly left open by the Supreme Court”: Is the availability of class arbitration a “question of arbitrability” that...
Continue Reading

Supreme Court Grants Certiorari on Copyright Issue

The Supreme Court this morning granted certiorari on a circuit split involving the Eleventh Circuit.  The Eleventh Circuit (along with the Eighth) has previously held that the fee provisions of the Copyright Act, which allow recovery of the “full costs” of attendance, do not displace general statutes that limit awards to taxable costs.  Artisan Contractors Ass’n of America, Inc. v. Frontier Insurance Co., 275 F.3d 1038 (11th Cir. 2001) (per curiam).  The grant of certiorari will resolve a split with the Ninth Circuit, which held the opposite.  The case is Rimini Street, Inc. v. Oracle USA,...
Continue Reading

Eleventh Circuit Upholds Constitutionality of Giving Preclusive Effect to Engle Jury Findings on Intentional Torts

Recently, in Searcy v. R.J. Reynolds Tobacco Co., 2018 WL 4214594 (11th Cir. Sept. 5, 2018), the Eleventh Circuit held that giving preclusive effect to a Florida jury’s findings that tobacco companies had concealed the health impacts of smoking did not violate the Due Process Clause when the defendants had notice and an opportunity to be heard. This is the latest in a line of “Engle progeny” cases.  Engle was a Florida class action brought by smokers that culminated in jury findings establishing many elements of liability on various torts against tobacco companies.  The Florida Supreme Court...
Continue Reading

Federal Law Does Not Prevent Foreclosure Against Surviving Spouse of “Reverse-Mortgage” Borrower If Contractually-Authorized

The federal statute that prevents HUD from insuring a reverse mortgage that permits foreclosure while the borrower’s surviving spouse lives in the mortgaged property does not similarly prohibit the lender from foreclosing after the borrower’s death, as long as the foreclosure is otherwise permitted by the loan documents. Estate of Jones v. Live Well Fin., Inc., __ F.3d __, 2018 WL 4211452 (11th Cir. Sept. 5, 2018). In 2014, Caldwell Jones (of basketball fame, as detailed in footnote 3 of the Eleventh Circuit’s opinion) obtained a “reverse mortgage” secured by the house he shared with his...
Continue Reading