Eversheds Sutherland 11th Circuit Business Blog
content top

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

Divided Court Holds Settlement Agreement Between Cable Provider and Installation Contractor Not the Result of Duress

A party negotiating an agreement may employ leverage or “arm-twisting” to consummate a transaction. At some point, however, tough business tactics may result in a claim of duress, jeopardizing the validity of the agreement.  In Cableview Communications of Jacksonville, Inc. v. Time Warner Cable Southeast, LLC, the Eleventh Circuit considered such a claim, ultimately finding in favor of the defendant and reaffirming that –under Florida law – duress cannot be predicated on “doing or threatening to do that which a party has a legal right to do.” Slip Op. 13. In 2004, Cableview Communications of...
Continue Reading

Court Declares Ratepayers’ Challenge to Jefferson County Bankruptcy Plan Equitably Moot

In Bennett v. Jefferson County, Alabama, 2018 WL 3892979 (11th Cir. Aug. 16, 2018), the Eleventh Circuit held that the doctrine of equitable mootness barred a challenge by ratepayers to Jefferson County’s bankruptcy plan, representing the first time the court has applied the doctrine to a Chapter 9 municipal bankruptcy. Jefferson County declared bankruptcy in 2011, having run up some $3.2 billion in debt in connection with the construction and refinancing of its sewer system.  In 2013, the County successfully negotiated a deal under which it would pay off its debt by issuing approximately...
Continue Reading

Spirited Court Widens Circuit Split Over Who Decides Class Arbitrability

In Spirit Airlines, Inc. v. Maizes, 2018 WL 3866335 (11th Cir. Aug. 15, 2018), the Eleventh Circuit concluded that an arbitration agreement providing that the rules of the American Arbitration Association (“AAA”) will cover all disputes constitutes clear and unmistakable evidence that the parties intended for an arbitrator to decide whether class arbitration is available. Members of a Spirit Airlines reward club had filed an arbitration claim against the airline on behalf of a putative class.  The dispute was governed by agreements between individual members and Spirit, under which “any...
Continue Reading

Eleventh Circuit Rejects Constitutional Challenge to Brookhaven Ordinance Regulating “Sexually Oriented Businesses”

In 2013, the City of Brookhaven enacted its code to “regulate sexually oriented businesses in order to promote the health, safety, and general welfare of the citizens of the City, and to establish reasonable and uniform regulations to prevent the deleterious secondary effects of sexually oriented businesses within the City.”  The new code did not ban establishments that “regularly feature[] sexual devices,” but did prohibit any such establishment from operating within 100 feet of another sexually oriented business or within 300 feet of a residential district, place of worship, park, or...
Continue Reading

Defendant Sails to Victory in Trade Secret Case

In Yellowfin Yachts, Inc. v. Barker Boatworks, LLC, 2018 WL 3734344 (11th Cir. Aug. 7, 2018), the Eleventh Circuit upheld the dismissal of trade-secret claims related to the manufacture and sale of fishing boats.  Yellowfin Yachts is a manufacturer of high-end fishing boats, allegedly known in the marketplace for the “swept sheer line” of their boats. Yellowfin hired Kevin Barker in 2006 as a vice president of sales. Although Yellowfin presented Barker with a proposed employment agreement including confidentiality clauses, Barker never executed the agreement.  Barker left Yellowfin in...
Continue Reading

Eleventh Circuit Reverses Sanctions Award Against FLSA Plaintiff

In Silva v. Pro Transp., Inc., __ F.3d __, 2018 WL 3801663 (11th Cir. Aug. 10, 2018) (per curiam), the Eleventh Circuit applied its prior decision in Slater v. U.S. Steel Corp., 871 F.3d 1174 (11th Cir. 2017 ) (en banc) (see our blog post here) to reverse a sanctions award against a FLSA plaintiff and his attorneys.  The plaintiff, Juan Antonio Silva, first consulted a lawyer about his FLSA claim in 2014, but that lawyer ended the representation after the case failed to settle.  Later, Silva filed for bankruptcy, using a different attorney.  He failed to list is FLSA claim as an asset in the...
Continue Reading

A Default in Proceeding with Arbitration Does Not Necessarily Authorize a Default Judgment in Federal Court

In Hernandez v. Acosta Tractors Inc., 2018 WL 3761126 (11th Cir. Aug. 8, 2018), the Eleventh Circuit held that a party’s default in proceeding with arbitration after requesting it did not necessarily warrant entry of default judgment against that party in federal court. Julio Hernandez sued his former employer, Acosta Tractors, and two of its officers under the Fair Labor Standards Act.  The employer moved pursuant to the parties’ arbitration agreement to compel arbitration of the claims.  The district court granted the motion, and arbitration proceedings began. A year later, the employer...
Continue Reading

Foreign Companies Can Acquire U.S. Trademark Rights without Direct Sales to Consumers

Direct Niche, LLC v. Via Varejo S/A, 2018 WL 3687868 (11th Cir. Aug. 3, 2018), emphasizes that foreign companies can acquire trademark and service mark rights in the United States even without selling products directly to consumers domestically.  Instead, contracts with third parties and publication of the mark are sufficient to confer rights.  The Eleventh Circuit recently reaffirmed that “use in commerce” is the standard to determine ownership rights for a mark. Via Varejo is a Brazilian corporation and the parent company of the Casas Bahia chain of retail stores.  Casas Bahia is a...
Continue Reading

Failure to Comply with Rule 9(b)’s Particularity Requirement Dooms Claims under the False Claims Act

Payments by the AIDS Healthcare Foundation to an employee responsible for referring HIV-positive patients to healthcare services offered by the Foundation fall within the employee exemption to the Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b)(3)(B), according to the Eleventh Circuit’s decision in Carrel v. AIDS Healthcare Foundation, Inc., 2018 WL 3734278 (11th Cir. Aug. 7, 2018).  The court also confirmed the applicability of Fed. R. Civ. P. 9(b)’s particularity requirement to qui tam actions under the False Claims Act. The plaintiffs were three former employees of the Foundation.  One had...
Continue Reading

Keep the Change: Eleventh Circuit Rejects Cab Companies’ Constitutional Challenge to Rideshare Ordinance

The Eleventh Circuit has affirmed the dismissal of taxi companies’ claims that a Miami-Dade County ordinance permitting rideshare services to participate in the for-hire transportation market constituted a taking of the cab companies’ property and/or a denial to them of equal protection.  Checker Cab Operators, Inc. v. Miami-Dade County, 2018 WL 3721227 (11th Cir. Aug. 6, 2018). Before 2016, provision of for-hire transportation in Miami-Dade County required a county-issued “medallion,” the use and alienability of which was heavily regulated.  The county generally limited the number of...
Continue Reading

London or New York? Beware Inconsistent Dispute Resolution Provisions

Internaves de Mexico s.a. de C.V. v. Andromeda Steamship Corp., 2018 WL 3636427 (11th Cir. Aug. 1, 2018), demonstrates the perils (and costs) of inconsistency in an agreement’s dispute resolution provisions.  Internaves and Andromeda were parties to a “charter party” agreement for the transportation of an electric transformer from Brazil to Mexico.  The agreement, completed using a form with fillable blanks in Part I and pre-printed language (some struck through) in Part II, included the following text at Box 25 in Part I:  .  Thus Box 25 specified “London arbitration, English Law.”  But in...
Continue Reading

Survey of 2017 Eleventh Circuit Decisions Published

The Mercer Law Review recently published its annual survey of noteworthy Eleventh Circuit decisions. The Class Actions article, authored by our own Tom Byrne and Stacey Mohr, analyzes the court’s 2017 decisions on CAFA jurisdiction, the impact of arbitration agreements on class actions, the preclusive effect of prior actions, class action settlements, and class certification disputes. This is the thirteenth year we have authored the Class Actions review for Mercer’s annual survey.  Previous articles are available through Hein Online for the years 2016, 2015, 2014, 2012, 2011,...
Continue Reading