Eversheds Sutherland 11th Circuit Business Blog
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“Once-Upon-A-Time” Injury Insufficient to Establish Article III Standing to Seek Declaratory and Injunctive Relief

The Eleventh Circuit has dismissed for lack of standing a trucking company’s suit for declaratory and injunctive relief against the Federal Motor Carrier Safety Administration (“FMCSA”). Flat Creek Trans., LLC v. Federal Motor Carrier Safety Admin., 2019 WL 2049770 (May 9, 2019). Flat Creek Transportation claimed that FMCSA had unfairly targeted the company for compliance reviews, which reviews could result in a “Conditional” or “Unsatisfactory” safety rating. Flat Creek alleged that in 2016, its regulatory consultant “received surreptitious reports from confidential informant(s)” that FMCSA...
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Eleventh Circuit Avoids Controversial Interpretative Question on S Corporation Taxation

In Meruelo v. Commissioner, 2019 WL 1986618 (11th Cir. May 6, 2019), the Eleventh Circuit was tasked with reviewing a controversial Tax Court decision regarding the basis created by a subchapter S corporation’s indebtedness to its shareholders. Meruelo v. Commissioner, T.C. Memo. 2018-16. In Judge William Pryor’s opinion, the court determined the case on its facts, never addressing the Tax Court’s decision that the common law “actual economic outlay” standard applied despite recent Treasury Regulations intended to override the doctrine. Meruelo was a shareholder in a real estate development...
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Party Seeking to Vacate International Arbitration Award Must Assert Ground Enumerated in Convention, Court Reaffirms

In Inversiones y Procesadora Tropical INPROTSA, S.A. v. Del Monte International GmbH, 2019 WL 1768911 (11th Cir. Apr. 23, 2019), the Eleventh Circuit affirmed the district court’s order that denied INPROTSA’s petition to vacate an international arbitration award and confirmed that award.  Concluding that INPROTSA was required to assert a valid defense under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“the Convention”), the court reaffirmed its holding in Industrial Risk Insurers v. M.A.N. Gutehoffnungshütte GmbH, 141 F.3d 1434, 1446 (11th Cir. 1998), and...
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Municipal Fair Housing Act Suit vs. Banks Is Again Green-Lighted

Capping off a busy week, the Eleventh Circuit took a second crack at whether a municipality can bring an action under the Fair Housing Act against banks to recover damages allegedly attributable to racially discriminatory lending practices. In the prior round, the court held that the City of Miami had alleged standing and causation sufficiently to survive a motion to dismiss. But the Supreme Court granted review and scaled back that decision, holding that although standing was adequately alleged, causation was not, because more than foreseeability was required to demonstrate proximate cause....
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Ponzi Scheme Victims Prevail over SEC Receiver on Due Process Grounds

In SEC v. Torchia, 2019 WL 1911823 (11th Cir. Apr. 30, 2019), the Eleventh Circuit held in favor of investors victimized by a Ponzi scheme, concluding that the investors were permitted to appeal the district court’s interlocutory orders regarding receivership proceedings and that they had been denied a meaningful day in court. The appeal arose from the SEC’s case against James Torchia charging that he orchestrated a Ponzi scheme. As part of Torchia’s alleged scheme, investors purchased life settlement policies. The district court froze the assets of one the entities used by Torchia to...
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Dollars from Donuts: Court Applies Georgia Civil Rule on Attorneys’ Fees

A plaintiff whose vehicle was struck by a Krispy Kreme driver appealed a $330,000 verdict in her favor and obtained a reversal, and a chance to win an even bigger verdict, in Showan v. Pressdee, 2019 WL 1891785 (11th Cir. Apr. 29, 2019). At issue primarily was a once fairly obscure provision of the Georgia Civil Practice Act, added in “tort reform” legislation enacted in 2005. The statute, O. C. G. A. § 9-11-68(e), provides as follows: Upon motion by the prevailing party at the time that the verdict or judgment is rendered, the moving party may request that the finder of fact...
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Eleventh Circuit Affirms Judgment for Employer in Paralegal’s FLSA Overtime Action

The Eleventh Circuit clarified the standards for relief under Rule 59 of the Federal Rules of Civil Procedure in Jenkins v. Anton, 2019 WL 1894415 (11th Cir. Apr. 29, 2019). After a paralegal sued her employer for overtime wages under the Fair Labor Standards Act and lost at a bench trial, she was denied relief under Rules 59 and 60. On appeal, she argued that the denials were abuses of discretion, that the district court misapplied the legal standard in finding she had not worked overtime, and that the district judge should have sua sponte recused himself. In an opinion by Judge Tjoflat and...
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Eleventh Circuit Holds Forum Non Conveniens Requires Consideration of Both Private and Public Interest Factors

The Eleventh Circuit held this week that district courts must consider both private and public interest factors when contemplating dismissal for forum non conveniens, a doctrine relevant when “a foreign forum is better suited to adjudicate the dispute.” Fresh Results, LLC v. ASF Holland, B.V., 2019 WL 1758863 (11th Cir. Apr. 22, 2019). Private factors are those pertaining to the litigants, for instance, the relative ease of access to sources of proof. Public factors concern the interests of the two potential fora, including the administrative difficulties associated with court congestion....
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Supreme Court Grants Review of Eleventh Circuit Case, Among Others, to Decide Title VII’s Application to LGBT Discrimination

The Supreme Court today granted certiorari in a number of cases considering whether Title VII prohibits discrimination against LGBT employees, including a case decided by the Eleventh Circuit, Bostock v. Clayton County, Georgia, 723 F. App’x 964 (May 10, 2018). In Bostock, a panel of Judges Tjoflat, Wilson, and Newsom affirmed, in an unpublished per curiam opinion, the dismissal of the plaintiff’s Title VII claims, relying on circuit precedent—most recently Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017), cert. denied, 138 S. Ct. 557 (2017)—holding that discrimination...
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Class-Action Plaintiff Lacks Standing to Challenge Policy Interpretation After Exhaustion of Personal Insurance Benefits

Citing a lack of standing, the Eleventh Circuit threw out an insurance class action that had been pending for several years in A&M Gerber Chiropractic LLC v. GEICO General Insurance Co., 2019 WL 1746869 (11th Cir. Apr. 19, 2019), leaving unsettled an “important issue” related to personal-injury-protection (PIP) benefits under Florida’s Motor Vehicle No-Fault Law. The named plaintiff, Gerber, purported to represent a class of healthcare providers that had been assigned PIP benefits under an “80/20 policy” subject to varying limits on reimbursement for beneficiaries with or without an...
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Rule 23(f) Petitions to Eleventh Circuit

One question that Eleventh Circuit litigants often ask is how likely the court is to grant a Rule 23(f) petition for interlocutory review of a class certification decision.  Litigants who have been on the wrong end of a class certification decision ask this question with particular urgency because an interlocutory appeal—before the trial on the merits—can often save a case.  Defendants who have received adverse certification decisions face pressure to settle rather than facing the uncertain prospects of a suit on the merits and a subsequent appeal of the certification decision.  For would-be...
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Offer to “Resolve” Time-Barred Debt States Fair Debt Collection Claim

The Eleventh Circuit took on a circuit-splitting issue under the Fair Debt Collection Practices Act in Holzman v. Malcolm S. Gerald & Associates, 2019 WL 1495642 (11th Cir. Apr. 5, 2019).  The case arose from the defendants’ efforts to collect a time-barred debt.  The plaintiff alleged that the collection letter he received was “false, deceptive, or misleading,” in violation of FDCPA’s § 1692e, and that the general practice of attempting to collect on time-barred debts violated FDCPA’s § 1692f’s prohibition of unfair or unconscionable practices.  The plaintiff also alleged the practices...
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Loan Servicer’s “Obvious” Willful Violation of the Fair Credit Reporting Act Warrants Revival of Plaintiffs’ Claims for Emotional-Distress and Punitive Damages

Last week, in Marchisio v. Carrington Mortgage Services, LLC, 2019 WL 1320522 (11th Cir. Mar. 25, 2019), the Eleventh Circuit, taking a somewhat exasperated tone, addressed claims against a mortgage servicer whose repeated misreporting of a consumer account—even after a history of litigation and two settlement agreements—was an “obvious” violation of the Fair Credit Reporting Act. The 60-page opinion, authored by Judge Julie Carnes, discusses the FCRA, the Florida Consumer Collection Practices Act, availability of emotional-distress and punitive damages, agency law, and contract...
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Full Eleventh Circuit Dismisses Car Shop Antitrust Claims against Insurers

In Quality Auto Painting Center of Roselle, Inc. v. State Farm Indemnity Co., 2019 WL 1006973, on March 4, 2019, the Eleventh Circuit, sitting en banc, addressed the sufficiency of five complaints brought under the Sherman Act for price-fixing and group boycotting and state law claims for unjust enrichment, quantum meruit, and tortious interference. The plaintiff auto body shops alleged that insurance companies, who supply the vast majority of the body shops’ revenue, had conspired to ultimately depress the amounts they pay to the body shops for repairs on behalf of their insureds. Roughly...
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