Eversheds Sutherland 11th Circuit Business Blog
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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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Jury Verdict for FDIC vs. Failed Bank Directors, Officers Upheld

The Eleventh Circuit may have closed the final chapter in the long-running litigation over the failure of the Buckhead Community Bank by affirming a $5 million jury verdict against a group of the bank’s former directors and officers.  FDIC v. Loudermilk, 2109 WL 3282609 (11th Cir. July 22, 2019).  A previous, related court decision during the controversy had disrupted settled assumptions about the liabilities of directors and officers under Georgia law.  FDIC v. Loudermilk, 761 S.E.2d 332 (Ga. 2014). In a typically lengthy opinion from Judge Tjoflat, the court rejected arguments seeking to...
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COURT LIMITS REVIEW OF REMAND ORDER BASED ON ONE DEFENDANT’S FORUM SELECTION CLAUSE

The Eleventh Circuit waded into a procedural thicket in Overlook Gardens Properties, LLC v. ORIX USA, L.P., 2019 WL 2590869 (11th Cir. June 25, 2019), ultimately concluding that it had no appellate jurisdiction to review an order remanding a removed case to state court .  At issue was the effect of a forum selection clause that bound one, but not all, of the defendants to litigate, in state court only, any dispute relating to the mortgage loan in issue. The district court held that defendant to have waived its right to removal, which precluded the required unanimous consent needed to remove...
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Florida Exemption Does Not Shield Improperly Maintained IRA from Creditors

An IRA owner could not rely on a Florida exemption to shield his IRA account from creditors after engaging in prohibited acts of self-dealing with his IRA funds, the Eleventh Circuit held in Yerian v. Webber, 2019 WL 2610751 (11th Cir. June 26, 2019). The IRA owner, Keith Yerian, opened a self-directed IRA. The IRA was governed by two contracts. One of the contracts required Yerian to refrain from engaging in prohibited acts, which included using IRA income or assets for his own interest or transferring IRA income or assets to himself or his spouse. Under § 408 of the federal tax code, an...
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Supreme Court Will Review Eleventh Circuit’s Decision that Official Code of Georgia Annotated Cannot Be Copyrighted

The Supreme Court yesterday granted certiorari to review the Eleventh Circuit’s decision in Code Revision Commission v. Public.Resource.Org, Inc., 906 F.3d 1229 (11th Cir. 2018), cert. granted, 2019 WL 1047486 (U.S. June 24, 2019). The question presented for review in Georgia v. Public.Resource.Org, Inc. is whether the principle that “government edicts,” such as statutes and judicial opinions, are not copyrightable extends to works that lack the force of law, such as the annotations in the Official Code of Georgia Annotated. The Eleventh Circuit, in an opinion authored by Judge Marcus, had...
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How Accountable Are You for Your Accountant’s Tax Fraud? The Eleventh Circuit Decides Not to Answer.

In Finnegan v. Commissioner, 2019 WL 2428109 (11th Cir. June 11, 2019), the Eleventh Circuit was asked to review whether a taxpayer may be indefinitely held responsible for the fraud of its paid tax return preparer. It is a question of special interest to small business owners that rely on an outside accountant to help with their taxes. Ultimately, the court chose not to answer the question because the taxpayer had not properly preserved the question at the lower court. The court’s decision not to review the issue leaves uncertainty for taxpayers in the Eleventh Circuit. Section 6501 of the...
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Court Grants En Banc Rehearing in Employment Retaliation Case

The Eleventh Circuit today granted the defendant employer’s petition for rehearing en banc in Gogel v. Kia Motors Manufacturing of Georgia, Inc., 904 F.3d 1226 (11th Cir. 2018). The now-vacated panel opinion, authored by Judge Martin, had affirmed summary judgment for the defendant on the plaintiff’s discrimination claims but revived her claim for retaliation. Judge Julie Carnes wrote a separate opinion dissenting as to the retaliation claim only, and the employer moved for en banc rehearing on that issue. Based on Judge Carnes’s dissent, the en banc decision may focus on the question of...
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CASH FROM CORN: PLAINTIFF INJURED AT CORN HARVESTING FACILITY ADVANCES TO TRIAL

The Eleventh Circuit reversed the district court’s grant of summary judgment to the employer of a forklift driver who injured a truck driver picking up a shipment of corn in Newcomb v. Spring Creek Cooler Inc., 2019 WL 2364498 (11th Cir. June 5, 2019). Because the plaintiff picking up a load of corn at the defendant’s facility was responsible for the count and condition of the load, he stood on the loading dock near the trailer so that he could take the corn’s temperature as it was being loaded. Over the course of an hour, the harvester’s employee drove the forklift to transfer corn pallets...
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Eleventh Circuit Takes the Middle of the Road in Evaluating a Foreign Tribunal’s “Receptivity” to Judicial Assistance from U.S. Courts

In Department of Caldas v. Diageo PLC, 2019 WL 2333910 (11th Cir. June 3, 2019), the Eleventh Circuit held that a district court evaluating a foreign court’s receptivity to judicial assistance from a U.S. Court in the context of an application for discovery under 28 U.S.C. § 1782 need not apply a rigid burden of proof.  Section 1782 permits, under certain circumstances, discovery in the United States for use in aid of a foreign proceeding.  In 2016, four Colombian Departments—the Department of Caldas, the Department of Cundinamarca, the Department of Valle del Cauca, and the Department of...
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