Eversheds Sutherland 11th Circuit Business Blog
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Eleventh Circuit Holds That TCPA’s Definition of “Automatic Telephone Dialing System” Requires Use of Random or Sequential Number Generator

Addressing a question that has divided courts in a decision that will substantially affect the scope of liability under the Telephone Consumer Protection Act (“TCPA”), the Eleventh Circuit has held that equipment is not an “automatic telephone dialing system” under the TCPA unless the equipment employs random or sequential number generation and requires no human intervention.  Glasser v. Hilton Grand Vacation Co., 2020 WL 415811 (11th Cir. Jan. 27, 2020). The TCPA was enacted in 1991 and prohibits, among other things, unconsented-to calls to cellular telephones made using an “automatic...
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Eleventh Circuit Emphasizes Importance of Striking Shotgun Pleadings

In a consolidated appeal of two cases filed against banking institutions, the Eleventh Circuit expressed frustration over being “forced to review a judgment that should never have been entered.”  Estate of Bass v. Regions Bank, Inc., 2020 WL 284094 (11th Cir. Jan. 21, 2020).  Rather than striking the complaints as impermissible shotgun pleadings and allowing the plaintiff an opportunity to amend, the district court had entered judgment and dismissed the case under Rules 12(b)(1) and 12(b)(6).  Ultimately, this resulted in partial vacatur of the district court’s decision. Plaintiff Bass...
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Eleventh Circuit Affirms Dismissal With Prejudice of Auto Shops’ RICO Complaint Against Insurers

The Eleventh Circuit has affirmed the dismissal with prejudice of a putative class action brought by auto body collision repair shops against dozens of insurers and alleging RICO violations, fraud, and unjust enrichment.  Crawford’s Auto Center, Inc. v. State Farm Mutual Automobile Insurance Co., 2019 WL 6974428 (Dec. 20, 2019). The plaintiffs alleged that the defendant insurers entered into “direct repair program,” or “DRP,” agreements with some repair shops, and that those “DRP shops” agreed to “certain uniform standards and procedures” in making covered repairs to autos insured by the...
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Automobile Insurer’s “Lessor Liability Endorsement” Is Not Illusory

An automobile insurer’s “Lessor Liability Endorsement” is not illusory, notwithstanding the fact that federal law bars claims of vicarious liability against vehicle lessors, because the endorsement imposes upon the insurer a duty to defend lessors against vicarious liability claims.  Hallums v. Infinity Ins. Co., 2019 WL 6872507 (11th Cir. Dec. 17, 2019). The plaintiffs entered into vehicle leases that required them to maintain liability insurance with specified limits.  They purchased automobile insurance policies with lower limits for themselves, but including a “Lessor Liability...
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Robert Luck and Barbara Lagoa Sworn In as Eleventh Circuit Judges

Two Miami-born, Florida Supreme Court justices have been sworn in to the Eleventh Circuit. Both judges served on Florida’s high court for less than a year before being nominated to the Eleventh Circuit by President Trump in September. Judge Luck, 40, was confirmed by the U.S. Senate by a vote of 64 to 31 in November and sworn in on November 19, 2019. Judge Lagoa, 52, was confirmed with a vote of 80 to 15 and was sworn in on December 6, 2019. Judge Lagoa was the first Cuban-American woman on the Florida Supreme Court and is the first Hispanic-American nominated by President Trump for...
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Class Action Seeking Reinstatement of Life Insurance Policies Was Properly Removed to Federal Court

In Anderson v. Wilco Life Ins. Co., 2019 WL 6242199 (11th Cir. Nov. 22, 2019), the Eleventh Circuit reversed the district court’s order remanding to state court a putative class action against a life insurance company. The case had been properly removed under the Class Action Fairness Act (“CAFA”), the appeals court held, because the plaintiff’s request for an order requiring reinstatement of life insurance policies put in controversy the face value of those policies, which far exceeded $5 million. Anderson filed the action in state court, alleging that Wilco had improperly raised premiums...
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Courts Must Evaluate Unnamed Class Members‘ Standing before Class Certification

Courts coping with overbroad class definitions that include uninjured class members have produced a cacophony of opinions. A first question often addressed in these opinions is whether the problem is one of Article III standing or of meeting Rule 23’s class certification requirements, or both. Senior Judge Stanley Marcus’ opinion for the Eleventh Circuit in Cordoba v. DirecTV, LLC, 2019 WL 6044305 (Nov. 15, 2019), represents the court’s first in-depth attempt to tackle the issues. Cordoba was a Telephone Consumer Protection Act action brought by plaintiff claiming that he had received...
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Alleged Economic Loss from Purchasing Illegal Dietary Supplements Is Sufficient to Establish Standing

Allegations that plaintiffs suffered an economic loss when they bought dietary supplements prohibited by a federal statute are sufficient to establish standing to bring a class action against the supplement manufacturer and distributor, according to the Eleventh Circuit. In Debernardis v. IQ Formulations, LLC, 2019 WL 5996589 (11th Cir. Nov. 14, 2019), two individual plaintiffs brought a putative class action asserting violations of the Florida Deceptive and Unfair Trade Practices Act, the Illinois Consumer Fraud and Deceptive Business Practices Act, New York General Business Law § 349, and...
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Bankruptcy Preemption/Preclusion Defense Does Not Preclude Class Certification in FDCPA/FCCPA Case

In an opinion vacating a district court order denying class certification, the Eleventh Circuit held that whether the Bankruptcy Code precludes and/or preempts the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1962 et seq., and the Florida Consumer Collection Practices Act (“FCCPA”), Fla. Stat. § 559.55 et seq., raised issues common to all class members.  Sellers v. Rushmore Loan Mgmt. Servs., LLC, 2019 WL 5558082 (11th Cir. Oct. 29, 2019).  The district court (erroneously) held that the issue was “individualized,” such that the plaintiffs had failed to establish the predominance...
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Legal Challenge by Frustrated Supporters of 2016 Bernie Sanders Campaign Rejected

As the country approaches the next presidential election in 2020, the Eleventh Circuit closed the book on a putative class action filed by supporters of Bernie Sanders during his last bid for the Democratic Party’s nomination in 2016. Wilding v. DNC Services Corp., 2019 WL 5539021 (11th Cir. Oct. 28, 2019), “pit[ted] a political party against some of its supporters,” who alleged that “during the 2016 Democratic presidential primaries,” the Democratic National Committee and its former chair, Deborah Wasserman Schultz, “improperly tipped the scales in favor of former Secretary of State Hillary...
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Public Policy Defense to Enforcement of Foreign Arbitral Award Requires Showing That Award Violates the United States’ “Most Basic Notions of Morality and Justice”

The United States has acceded to The New York Convention (the “Convention”), which requires participating nations to enforce arbitration agreements and foreign arbitral awards. Federal district courts generally enforce foreign arbitral awards unless a party establishes one of seven defenses enumerated in Article V of the Convention. One such defense is that an award is contrary to the public policy of the United States. In Sladjana Cvoro v. Carnival Corporation, the Eleventh Circuit considered this defense, ultimately holding that it only applies “when confirmation or enforcement of a...
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FACTA Injury/Standing Case to Be Reheard En Banc

The Eleventh Circuit has vacated the panel opinion in Muransky v. Godiva Chocolatier, Inc., 2018 WL 4762434 (11th Cir. Oct. 3, 2018), which held that a merchant’s disclosure of too many digits of a credit card number was sufficient to confer Article III standing even without subsequent misuse of the credit card, and has ordered that the case be reheard en banc.  Our post about the panel’s opinion is here. Posted by Valerie...
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Eleventh Circuit Joins Majority of Circuits in Holding That FAA Prohibits Pre-Hearing Discovery From Non-Parties

After twenty years of litigation in Managed Care Advisory Group, LLC v. Cigna Healthcare, Inc., 2019 WL 4464301 (Sept. 18, 2019), the Eleventh Circuit issued a per curiam opinion reversing the enforcement of arbitral summonses and holding that the FAA implicitly withholds the power to compel documents from non-parties without summoning them to testify. Beginning in 1999, medical providers filed several class actions against managed care insurance companies, which were consolidated into a multidistrict litigation before the Southern District of Florida, which approved a settlement but...
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Lending Agreements’ Out-of-State Forum Selection Clauses and Class Action Waivers Violate Georgia Public Policy

Lenders were barred from enforcing out-of-state forum selection clauses and class action waivers in loan agreements because such provisions violate Georgia’s public policy, the Eleventh Circuit held in Davis v. Oasis Legal Finance Operating Co., 2019 WL 4051592 (11th Cir. Aug. 28, 2019). A class of borrowers who entered into identical loan agreements sued their lenders, alleging that the agreements violated Georgia’s Payday Lending Act, O.C.G.A. § 16-17-1 et seq., Industrial Loan Act, O.C.G.A. § 7-3-1 et seq., and usury laws, O.C.G.A. § 7-4-18. The lenders moved to dismiss the complaint and...
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