Eversheds Sutherland 11th Circuit Business Blog
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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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Judge Stanley Marcus to Take Senior Status

After more than 20 years serving on the U.S. Court of Appeals for the Eleventh Circuit, Judge Stanley Marcus has announced his intention to retire in senior status. Judge Marcus is currently among the most senior active judges on the court, second only to Judge Gerald Tjoflat, who recently announced his own intention to take senior status. These retirements will pave the way for President Trump to make his fourth and fifth nominations to the Eleventh Circuit (having previously appointed judges Kevin Newsom, Elizabeth Branch, and Britt Grant). Judge Marcus served as a U.S. district judge for...
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Eleventh Circuit Weighs in on Circuit Split as to Whether Guarantors are “Applicants” under the Equal Credit Opportunity Act

The Eleventh Circuit in Regions Bank v. Legal Outsource PA, 2019 WL 4051703 (11th Cir. Aug. 28, 2019), was tasked with answering a question that has divided the circuits: whether a guarantor constitutes an “applicant” under the Equal Credit Opportunity Act. And the question divided the panel as well, with Judges William Pryor and visiting District Court Judge K. Michael Moore in the majority, agreeing that a guarantor is not an applicant, and Judge Rosenbaum concurring in part and dissenting in part. Legal Outsource PA, a law firm wholly owned by Charles Phoenix, defaulted on a loan from...
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Eleventh Circuit Splits with Ninth in Holding that Recipient of a Single Unsolicited Text Message Lacks Standing to Assert a TCPA Claim

John Salcedo received a single unsolicited text message from the firm of his former lawyer, offering a discount on future services.  Salcedo sued the lawyer and the law firm, seeking statutory and treble damages for alleged violation of the Telephone Consumer Protection Act (“TCPA”).  In his complaint, Salcedo alleged that the text message caused him “to waste his time answering or otherwise addressing the message,” which made him and his phone “unavailable for otherwise legitimate pursuits,” all of which, he claimed, “resulted in an invasion of Plaintiff’s privacy and right to enjoy the...
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Court Revives Claim Challenging Use of “Available Balance” Rather than “Ledger Balance” to Assess Overdraft Fees, Finding Contracts Ambiguous

Carol Tims filed a putative class action against LGE Community Credit Union, claiming that the bank breached its contract with her, and violated the federal Electronic Fund Transfer Act (“EFTA”), when it charged overdraft fees based on Tims’s “available balance”—which took into account pending debits—rather than her “ledger balance,” which did not.  The district court dismissed Tims’s complaint, holding that the parties’ agreements—an “Opt-In Agreement” and an “Account Agreement”—unambiguously permitted the bank to assess overdraft fees based on the account’s available balance, even if it...
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NO STATE ACTION ANTITRUST IMMUNITY FOR CITY’S ALLEGED TYING ARRANGEMENT

The City of LaGrange, Georgia was held not to be immune from antitrust liability based on its claim that its actions were authorized by the state, according to the Eleventh Circuit’s August 20, 2019 decision in Diverse Power, Inc. v. City of LaGrange, 2019 WL 3928624. The city provides exclusive water services to its residents and also provides water to users outside the city limits. The city also provides natural gas to customers both inside and outside the city limits. In 2004, the city enacted an ordinance affecting water customers outside the city limits. Water would be provided for new...
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POLICE DETECTIVE CAN’T BE FIRED FOR INABILITY TO RECEIVE TASER SHOCK, HOLDS DIVIDED PANEL ON REMAND FROM EN BANC COURT

On August 15, 2019, the Eleventh Circuit decided the employment discrimination case of Lewis v. City of Union City, 2019 WL 3821804, that had been remanded from the en banc court, having decided that the appropriate standard for comparator evidence is whether the proposed comparators are “similarly situated in all material respects.” The panel’s new opinion greatly resembles its first opinion, coming to the same conclusions, dividing in the same measure (Judge Rosenbaum and visiting Judge Kaplan in the majority with Judge Tjoflat dissenting), and finding a way to consider the comparator...
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Judge Tjoflat to Take Senior Status

Judge Gerald B. Tjoflat, the longest-serving federal judge in active service, has announced his intention to take senior status. Judge Tjoflat was appointed to the federal bench by President Nixon and to the then-Fifth Circuit by President Ford. In 1995, the Duke Law Journal published this tribute to Judge Tjoflat by Chief Justice Rehnquist, among others.
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HOTELS CAN’T COMPLAIN ABOUT SOLICITED FAXES, EVEN WHEN THEY DON’T REQUIRE AN OPT-OUT NOTICE

The Eleventh Circuit was asked in Gorss Motels, Inc. v. Safemark Systems, LP, 2019 WL 3384191 (11th Cir. July 26, 2019), to decide whether a fax recipient provided prior express permission to receive faxes from a sender under the TCPA and, if so, whether the faxes needed to contain opt-out notices under an agency regulation.  The plaintiffs were hotel operators who agreed in their franchise agreements that Wyndham affiliates could offer assistance with purchasing items for their hotels and provided their fax numbers.  The defendants were Wyndham affiliates who sent two faxes. The plaintiff...
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Denial of Coverage for Antitrust Claim Under Executive Liability Insurance Policy Upheld

In Crowley Maritime Corp. v. National Union Fire Insurance Co. of Pittsburgh, 2019 WL 3294003 (11th Cir. July 23, 2019), the Eleventh Circuit affirmed a denial of insurance coverage under an executive and organization liability insurance policy.  Crowley Maritime Corporation (“Crowley”) carries freight between the United States and Puerto Rico, and purchased liability insurance from National Union that provided coverage for an initial policy period running from November 1, 2007 through November 1, 2008 and an extended discovery period running through November 1, 2013.  The policy provided...
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Moving to Reschedule Foreclosure Sale Does Not Violate RESPA Regulations

Last month, in Landau v. RoundPoint Mortgage Servicing Corp., the Eleventh Circuit held that a mortgage loan servicer may move to reschedule a previously ordered foreclosure sale after a borrower submits a completed loss mitigation application.  925 F.3d 1365 (11th Cir. June 11, 2019).  The court rejected the plaintiff’s argument that moving to reschedule a foreclosure sale violates Regulation X, a regulation issued under the Real Estate Settlement Procedures Act (RESPA) that prohibits loan servicers from moving for a “foreclosure judgment or order of sale” after a borrower has submitted a...
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NO MULTIPLIER FOR HOME DEPOT CLASS ACTION LODESTAR FEE AWARD

In a class action settlement, one of the most difficult issues for negotiation is often how—and how much—class counsel will be paid.  In many cases, a cap on the fee is negotiated:  the defendant agrees not to object to a fee application within the cap, which can be a percentage of the so-called “common fund” received by the class in the settlement, or a fixed amount.  Less common is the arrangement agreed to in In re The Home Depot Inc., Customer Data Security Breach Litigation, 2019 WL 3330867, decided on July 25 by the Eleventh Circuit, in which Home Depot agreed to pay reasonable fees...
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