Eversheds Sutherland 11th Circuit Business Blog
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Toxicology Expert’s Opinions Properly Excluded for Failure to Consider Dose-Response Relationship or Potential Alternative Causes of Plaintiff’s Disease

In Williams v. Mosaic Fertilizer, LLC, 2018 WL 2191426 (11th Cir. May 14, 2018), the Eleventh Circuit affirmed the District Court’s exclusion of proffered expert testimony by a toxicologist, and of the plaintiff’s proposed lay testimony that her home had “no present value” because of emissions from a nearby fertilizer plant, and affirmed the resulting grant of summary judgment to the defendant. Plaintiff Rhonda Williams has always lived in Tampa, Florida, about three miles away from the defendant’s fertilizer plant. She suffers from pulmonary hypertension, diabetes, and other health...
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Venezuela’s Attempt to Purchase Bolívar Artifacts from Florida Resident Was “Commercial Activity” Not Subject to Sovereign Immunity

In Devengoechea v. Bolivarian Republic of Venezuela, No. 16-16816 (11th Cir. May 10, 2018), the Eleventh Circuit held that the Foreign Sovereign Immunities Act’s “commercial activity” exception to sovereign immunity applied to Venezuela’s alleged failure to return or pay for a collection of artifacts owned by a Florida resident. Plaintiff Ricardo Devengoechea, a citizen of the United States and Florida resident, inherited a collection of documents and artifacts which had belonged to Simón Bolívar. According to the plaintiff’s complaint against Venezuela, Venezuelan officials, including the...
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Bank Did Not Waive Arbitration Rights Against Unnamed Class Members

In the latest appeal emanating from the Checking Account Overdraft Litigation MDL proceeding pending in the Southern District of Florida, the Eleventh Circuit returned to a question that it dodged in a previous appeal: whether Wells Fargo waived its arbitration rights as to unnamed members of a certified class. Gutierrez v. Wells Fargo Bank, NA, No. 16-16820 (11th Cir. May 10, 2018). Early on in the underlying litigation, consolidated class-action challenges to overdraft fees, Wells Fargo had decided not to file a motion to compel arbitration as to the named class representatives. Instead,...
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FLSA Opt-Ins Become Party Plaintiffs Upon Filing Written Consents

In Mickles v. Country Club Inc., 2018 WL 1835316 (11th Cir. Apr. 18, 2018), the Eleventh Circuit held, considering a question of first impression in any circuit, that filing a written consent to proceed as a party plaintiff in an FLSA collective action confers party plaintiff status on the filer, even if no collective action is certified. Mickles filed her complaint in April 2014, alleging that Country Club had improperly classified her and other similarly situated employees as independent contractors. Over the next few months, three other employees, Houston, McAllister, and Lemon, filed...
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False Claims Act Statute of Limitations Extended

An extended limitations period—up to ten years, in some circumstances—is applicable to actions by private plaintiffs under the False Claims Act (FCA) even when the government declines to intervene, according to a recent Eleventh Circuit decision, United States ex rel. Hunt v. Cochise Consultancy, Inc., 2018 WL 1736788 (11th Cir. Apr. 11, 2018). In so holding, the court staked out a position on a contentious statutory provision that embodies a more expansive view of FCA liability than other circuits that have considered the issue. A little background is in order. The FCA is intended to root...
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COURT GRANTS EN BANC REHEARING IN BODY SHOPS’ INSURANCE ANTITRUST ACTION

The Eleventh Circuit voted to accept en banc rehearing in Quality Auto Painting Center of Roselle, Inc. v. State Farm Indemnity Co., 870 F.3d 1262 (11th Cir. 2017), a decision we covered here last September. The now-vacated panel decision, authored by Judge Wilson, had reversed the dismissal of antitrust and state-law claims asserted by auto-body-shop owners against a number of automobile insurers. The grant of rehearing is not surprising given the lengthy dissent (and partial concurrence) authored by Senior Judge Anderson. Judges Marcus, Rosenbaum, Julie Carnes, and Jill Pryor have all...
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GEORGIA SUPREME COURT JUSTICE BRITT GRANT NOMINATED TO ELEVENTH CIRCUIT

The White House announced yesterday the nomination of Georgia Supreme Court Justice Britt Grant to fill the seat on the Eleventh Circuit opened by the pending retirement of Judge Julie Carnes. Justice Grant has served on the Supreme Court for a year and three months. She was appointed to the Court by Governor Nathan Deal after serving as Georgia’s Solicitor General for a year. She previously worked in various positions in the George W. Bush administration. If confirmed, she would be the Eleventh Circuit’s youngest judge. Justice Grant would be President Trump’s third appointment to the...
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Judge Julie Carnes to take Senior Status, Opening Seat on Eleventh Circuit

After serving as an active federal judge for more than a quarter-century, Eleventh Circuit Judge Julie Carnes announced last week that she will take senior status effective June 18, 2018. Judge Carnes has spent her entire career in public service. Following graduation from the University of Georgia Law School in 1975, Judge Carnes clerked for Judge Lewis R. Morgan on the United States Court of Appeals for the Fifth Circuit. Thereafter, she worked as Assistant United States Attorney, eventually becoming the Appellate Chief of the Criminal Division. In 1992, President George H.W. Bush...
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Forfeited Deposit Not Capital Gain in Real Estate Deal

In a case of first impression, the Eleventh Circuit affirmed that a taxpayer could not treat as long-term capital gain its retention of a nonrefundable deposit after a would-be buyer defaulted on an agreement to purchase real property used in the taxpayer’s trade or business. CRI-Leslie, LLC v. Comm’r, 882 F.3d 1026 (11th Cir. 2018). Under the facts of the case, the taxpayer, CRI-Leslie LLC, entered into an agreement to sell real property used in CRI-Leslie’s trade or business for $39.2 million, $9.7 million of which was paid immediately to CRI-Leslie as a nonrefundable deposit. The deal...
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Judge Branch Confirmed to Court

The U.S. Senate on Tuesday confirmed Georgia Court of Appeals Judge Elizabeth “Lisa” Branch to sit on the Eleventh Circuit, with a vote of 73 to 23. Judge Branch was nominated to the court by President Trump in September 2017, and has served on the Georgia Court of Appeals since 2012. Posted by Stacey Mohr.
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Third Time No Charm for Bank in Arbitration Bid

In its third trip to the Eleventh Circuit attempting to enforce an arbitration agreement in a would-be class action involving bank debit card overdraft practices, the bank’s motion to compel arbitration was again denied, this time because of what the court concluded was a failure to agree on arbitration. Dasher v. RBC Bank (USA), 2018 WL 832855 (11th Cir. Feb. 13, 2018). The saga began with an attempt by the bank, at the outset of the litigation, to enforce an arbitration provision in a 2008 customer account agreement. The district court denied that motion, but the denial was vacated on...
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En Banc Reminder: Even Self-Serving and Uncorroborated Affidavits Can Preclude Summary Judgment

On January 31, 2018, the full Eleventh Circuit held “that an affidavit which satisfies Rule 56 of the Federal Rules of Civil Procedure may create an issue of material fact and preclude summary judgment even if it is self-serving and uncorroborated.” United States v. Stein, 2018 WL 635960 (11th Cir. Jan 31, 2018) (en banc). The court treated the case as an opportunity to bring its tax precedent back into line, but the broader holding applies to all summary-judgment cases. The Stein case involved federal tax assessments. The Government had obtained a summary judgment for back taxes, interest,...
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Presumption Against Extraterritoriality Applied to Alien Tort Statute in Jurisdictional Dispute over Folk Singer’s Death

A popular Chilean folk singer named Víctor Jara was tortured and killed in the wake of the 1973 military coup that toppled Salvador Allende’s government and brought Augusto Pinochet to power. Nearly 40 years later, Jara’s family discovered that his suspected killer, a former Chilean military officer named Pedro Pablo Barrientos Núñez, had moved to Florida and become a U.S. citizen. Barrientos refused to leave the country to face murder charges in Chile, so Jara’s family sued him in federal district court under the Alien Tort Statute, 28 U.S.C. § 1350, and the Torture Victim Protection Act of...
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Be Careful What You Wish For—Eleventh Circuit Rejects Argument That Appellant’s Own Requested Jury Charge Requires Reversal

In Smith v. R.J. Reynolds Tobacco Co., 2018 WL 549141 (11th Cir. Jan. 25, 2018), an Engle progeny tobacco case, the Eleventh Circuit rejected the defendant’s argument that the jury’s compensatory damages award should be reduced based on comparative fault. The relevant legal question was settled last month, when the Florida Supreme Court clarified in Schoeff v. R.J. Reynolds Tobacco Co., 2017 WL 6379591 (Fla. Dec. 14, 2017), that a defendant found liable for both intentional and non-intentional tort claims is not entitled to a reduction in compensatory damages. But the parties’ proposed jury...
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