Eversheds Sutherland 11th Circuit Business Blog
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Appeal on the Merits Untimely, and Costs Award to Defendant Under Rule 68 Affirmed, in FLSA Case

In a hectic end to 2020, we almost overlooked an interesting appellate procedure opinion affecting FLSA cases, Vasconcelo v. Miami Auto Max, Inc., 981 F.3d 934 (11th Cir. 2020). In Vasconcelo, the Eleventh Circuit dismissed an FLSA plaintiff’s appeal on the merits as untimely; affirmed the district court’s attorneys’ fees award, which awarded less than the plaintiff had sought; and affirmed the district court’s application of Rule 68 to tax costs against the plaintiff. Vasconcelo worked as a sales associate at a car dealership. He brought an action against the dealership and its owner,...
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Increased Risk of Identity Theft Cannot Establish Article III Standing in Data Breach Cases

The Eleventh Circuit has now taken a stand on whether a substantial risk of identity theft, fraud, and other future harm constitutes Article III standing in data breach cases.  Tsao v. Captiva MVP Rest. Partners, LLC, 2021 WL 381948 (11th Cir. Feb. 4, 2021).  In an opinion authored by Senior Judge Tjoflat, the Eleventh Circuit affirmed the lower court’s decision, holding that plaintiff Tsao lacked Article III standing because he could not demonstrate a substantial risk of identity theft and because he cannot manufacture standing.  The court dismissed the case without...
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Administrative Feasibility Not Separate Class Certification Requirement

The Eleventh Circuit aligned itself last week with the majority of circuits in holding that a threshold determination that identifying class members is administratively feasible is not a separate requirement for class certification. The ruling, in the closely-watched case of Cherry v. Dometic Corp., 2021 WL 346121 (11th Cir. Feb. 2, 2021), which attracted numerous amicus briefs, represents a minor victory for the plaintiffs’ class-action bar. The issue before the court was framed in terms of the “ascertainability” requirement for membership in a class action. The specific issue was whether...
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Court Rejects Challenges to SEC Subpoenas

The Eleventh Circuit rejected jurisdictional and relevance challenges to SEC subpoenas in SEC v. Marin, 982 F.3d 1341 (11th Cir. 2020). The SEC issued subpoenas to Carla Marin and MinTrade Technologies pursuant to a formal order of investigation (“FOI”) authorizing the Commission to investigate whether a Tampa-based limited liability company called Traders Café, and its “officers, directors, employees, partners, subsidiaries, and/or affiliates, or other persons or entities,” had engaged, or were about to be engaged in, unregistered broker-dealer conduct in violation of Section 15(a) of the...
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Court Upholds (Again) $20 Million Punitive-Damages Verdict Against Phillip Morris

In what may be one of the last Engle progeny cases to reach the Eleventh Circuit, the court again upheld an award of punitive damages against the tobacco company defendant, rejecting Phillip Morris’s argument that the award—which was over 3 times the amount of compensatory damages awarded to the individual plaintiff—was unconstitutionally excessive in violation of due process. Cote I The latest decision, in Cote v. Philip Morris USA, Inc., No. 19-14074 (Jan. 19, 2021) (Cote II), comes more than six years after a jury awarded the individual plaintiff $6.25 million in compensatory damages and...
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No Heightened Duty Owed to Class Representatives by Class Counsel

Counsel for a proposed class do not owe the named class representatives a heightened fiduciary duty relative to other class members. So held the Eleventh Circuit in Medical & Chiropractic Clinic, Inc. v. Oppenheim, 981 F.3d 983 (11th Cir. 2020), a decision which marked the court’s return to an unseemly controversy stemming from litigation against the Tampa Bay Buccaneers alleging violations of the federal Telephone Consumer Protection Act (TCPA). A previous decision [posted here] reversed a district court’s decision not to allow a class member to intervene in a class action in which a...
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End of Engle Cigarette Litigation in Eleventh Circuit?

Judge Kevin Newsom begins his opinion for the court in Harris v. R.J. Reynolds Tobacco Co., 2020 WL 6816965 (11th Cir. Nov. 20, 2020), with the auspicious observation that this Engle case is “one of the last that we’re likely to see.” Correct or not, the comment evokes the long history in the Eleventh Circuit of the progeny of the Florida Supreme Court’s landmark decision in Engle v. Liggett Group, Inc.,945 So. 2d 1246 (Fla. 2006). In Harris, the court considered whether Gerald Harris was a member of the Engle class, a group of plaintiffs who brought suit against several tobacco companies...
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Summary Judgment for Defendants Affirmed in Securities Fraud Case

In Whitehead v. BBVA Compass Bank, 2020 WL 6536897 (11th Cir. Nov. 6, 2020), the Eleventh Circuit affirmed summary judgment in favor of the defendant bank and bank officer on the plaintiff’s claims for securities fraud.  The plaintiff, an investor, claimed that the defendants wrongfully failed to inform him of the risks involved in acquiring a certain CD for his investment portfolio. The investor sought as damages the amount he lost when he surrendered the CD some 19 months after acquiring it. The district court granted the defendants’ motion for summary judgment, and the Eleventh...
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Eleventh Circuit Bans Incentive Payments to Lead Plaintiffs in Class Actions

In what appears to be a first, the Eleventh Circuit recently held that federal law prohibits so-called “incentive payments” to class representatives, even as part of an agreed settlement. The court acknowledged that it was forging a new path in Johnson v. NPAS Solutions, LLC, 975 F.3d 1244, 1248–49 (11th Cir. 2020)—identifying errors that it said had “become commonplace in everyday class-action practice” and noting that the district court had “handled the class-action settlement here in pretty much exactly the same way that hundreds of courts before it have handled similar settlements.” But...
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Divided En Banc Court Dismisses FACTA Claims for Lack of Article III Standing

In Muransky v. Godiva Chocolatier, Inc., 2020 WL 6305084 (11th Cir. Oct. 28, 2020), a divided en banc court vacated the district court’s order approving a class-action settlement and directed that the case be dismissed because the plaintiff lacked standing sufficient to establish subject-matter jurisdiction. Muransky filed a putative class action against Godiva, alleging that the chocolatier had willfully violated the Fair and Accurate Credit Transactions Act (“FACTA”) by including on customers’ receipts more than the last five digits of their credit card numbers.  The inclusion of...
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Conservation Easements with a Limited Reservation of Development Rights Are Potentially Deductible

In Pine Mountain Preserve LLLP v. Commissioner, 2020 WL 6193897 (11th Cir. Oct. 22, 2020), the Eleventh Circuit was asked whether a grantor’s reservation of limited development rights prevents a conservation easement from satisfying the requirements to claim a charitable deduction under the qualified conservation contribution rules of section 170(h) of the Internal Revenue Code. In an opinion by Judge Newsom, the court reasoned that a limited reservation of development rights is not per se fatal to a conservation easement, but may result in the easement failing to “adequately protect[]” its...
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A Sticky Situation: Epoxy Company Is Stuck With Evidence of Intent to Copy, and Evidence of Actual Confusion

The interplay between circumstantial evidence under the Lanham Act’s substantive law of trade dress infringement and the rules for summary judgment was at issue in J-B Weld Co. v. Gorilla Glue Co., 2020 WL 6144561 (11th Cir. Oct. 20, 2020).  In J-B Weld,all three judges agreed that the district court erred in entering summary judgment for the defendant.  In an opinion authored by Senior Judge Tjoflat, the Eleventh Circuit reversed the summary judgment dismissing the Lanham Act trade dress infringement claim, and remanded to the district court for trial.  In analyzing the likelihood of...
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Employee Arbitration Award Stands Despite Arbitrators’ Alleged Misinterpretation of the Contract

The Eleventh Circuit refused to vacate an employee’s arbitration award for nearly $4 million for wrongful termination based on the employer’s claim that the arbitration panel misinterpreted the parties’ employment and arbitration agreements in Gherardi v. Citigroup Global Markets Inc., 2020 WL 5553255 (11th Cir. Sept. 17, 2020). The employee brought several claims in arbitration, including a claim for wrongful termination, when his employer fired him three days after he sent his employer a letter threatening to challenge in arbitration a “final warning” letter, which he received from his...
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Eleventh Circuit Sets the Bar for Bar Orders

In SEC v. Quiros, 966 F.3d 1195 (July 20, 2020), the Eleventh Circuit held that the district court abused its discretion when it entered a bar order extinguishing non-parties’ claims, because entry of the order was not necessary to resolve the parties’ dispute. In 2016, the SEC filed a civil enforcement action against Ariel Quiros, and the district court appointed a receiver to take control of Quiros’s corporations.  Other actions against Quiros followed, and he hired two law firms to defend them.  Quiros couldn’t pay the lawyers, though, because the district court in the SEC action had...
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