Eversheds Sutherland 11th Circuit Business Blog
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Get Back to Where You Once Belonged? Court Affirms Dismissal for Lack of Personal Jurisdiction and in Light of Forum Selection Clause

In Don’t Look Media LLC v. Fly Victor Ltd., 999 F.3d 1284 (11th Cir. June 4, 2021), the Eleventh Circuit affirmed the dismissal of RICO and state-law claims against an English company and its directors and officers for lack of personal jurisdiction and in light of the forum selection clause included in the parties’ contract. Don’t Look Media (a Delaware LLC based in Florida) licensed its private jet booking website to Fly Victor (an English company based in London). The parties’ contract called for Fly Victor to invest in increasing traffic to the site, and for the parties to share booking...
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Eleventh Circuit Affirms Approval of (Almost) All of Equifax Data Breach Settlement

In In re: Equifax, Inc. Customer Data Sec. Breach Litig. (Huang v. Equifax, Inc.), 2021 WL 2250845 (11th Cir. June 3, 2021), the Eleventh Circuit upheld the district court’s approval of a class settlement arising out of the Equifax data breach – except for the incentive awards to the class representatives, as to which the court reversed the district court in light of Johnson v. NPAS Sols., LLC, 975 F.3d 1244 (11th Cir. 2020). The settlement in question arose from “scores of class actions” filed in the wake of a 2017 data breach affecting Equifax and its affiliates. The cases were...
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STOLI Invalidation Upheld, Issues Certified to Delaware Supreme Court

STOLI – Stranger-Originated Life Insurance – was the subject of the court’s decision in Estate of Malkin v. Wells Fargo Bank, NA, 2021 Westlaw 2149344  (11th Cir. May 27, 2021). Judge Beverly Martin authored the court’s opinion, which affirmed a Florida district court’s invalidation of the life insurance policy at issue but certified questions relating to defenses and a counterclaim to the Delaware Supreme Court.           Under Delaware law, applicable to the case, a life insurance policy that is procured or effected without an insurable interest...
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Judge Beverly Martin to Resign on September 30, 2021

Judge Beverly Martin, an Obama appointee who also served as a judge in the Northern District of Georgia and as United States Attorney for the Middle District of Georgia, has notified the White House that she intends to resign as a judge on the Eleventh Circuit effective September 30, 2021. Judge Martin is regarded as the court’s most consistently liberal member. She will not continue service as a senior judge. The opening on the court will be President Biden’s first opportunity for an appointment.
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FCRA Class Action Foiled by Comcast Arbitration Agreement

A Comcast arbitration agreement by which a former subscriber to the cable service agreed to arbitrate “any claim or controversy related to Comcast” was enforced by the court in Hearn v. Comcast Cable Communications, LLC, 992 F.3d 1209 (11th Cir. 2021), overturning a contrary decision by the Northern District of Georgia. The arbitration agreement was included in Comcast’s subscriber agreement with the plaintiff, but the plaintiff terminated his service. A year and a half later, however, the plaintiff approached Comcast about renewing service. In connection with that inquiry, Comcast made use...
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Credit Reporting Agency’s Procedures and Investigation to Ensure FCRA Accurate Reporting Not Reasonable Enough for Summary Judgment

In Losch v. Nationstar Mortgage LLC, 2021 WL 1653016 (11th Cir. Apr. 28, 2021), the Eleventh Circuit considered whether the defendant Experian violated the Fair Credit Reporting Act’s requirements that a credit-reporting agency employ “reasonable procedures to assure maximum possible accuracy of the information concerning the individual” when preparing credit reports, 15 U.S.C. § 1681e(b), and conduct a “reasonable reinvestigation” of disputed information upon notification of a claimed inaccuracy, id. § 1681i(a).  The plaintiff filed for Chapter 7 bankruptcy and discharged his debts,...
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Class Claims for Declaratory and Supplemental Relief Remanded to State Court

In Mack v. USAA Casualty Insurance Co., 2021 WL 1572709 (11th Cir. Apr. 22, 2021), the Eleventh Circuit dismissed for lack of an Article III “case or controversy” a putative class action in which the plaintiff sought a declaration that his insurer’s adjustment of total loss claims violates Florida law and money damages as corresponding “supplemental relief.”   Leroy Mack brought an action against USAA in Florida state court following adjustment of his insurance claim for a totaled vehicle, seeking a declaration that the methodology USAA used to adjust his claim violated Florida law; a...
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Public Accommodations Under ADA Limited to Actual, Physical Places, with Website Accessibility Claims Permitted Only for Intangible Barriers to Access

The fact that a website was incompatible with screen-reader software for visually impaired users was held insufficient (without more) to state a claim for public-accommodation discrimination under Title III of the Americans with Disabilities Act, in Gil v. Winn-Dixie Stores. Inc., 2021 WL 1289906 (11th Cir. Apr. 7, 2021). The Eleventh Circuit held in a majority opinion by Judge Lisa Branch that the statutory definition of “public accommodation” in Title III, which prohibits discrimination “on the basis of disability” in any “place of public accommodation,” 42 U.S.C. § 12182(a), applies...
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Debt Collector’s Provision of Consumer Information to Mail Service Is Actionable Under FDCPA

In Hunstein v. Preferred Collection & Management Services, Inc., 2021 WL 1556069 (11th Cir. Apr. 21, 2021), the Eleventh Circuit held that a consumer had standing to challenge a debt collector’s provision of the consumer’s information to a third-party mail service and that the consumer’s allegations stated a cognizable claim under 15 U.S.C. § 1692c(b) of the Fair Debt Collection Practices Act (“FDCPA”). The decision has garnered a good deal of attention within the industry. Richard Hunstein incurred a debt for his son’s medical treatment, and the hospital assigned the debt to Preferred...
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ERISA’s Fee-Shifting Provision Permits Awards Against Parties, Not Attorneys

Does ERISA’s fee-shifting provision, 29 U.S.C. § 1132(g)(1), permit a court to award fees against a party’s counsel?  Deciding this issue of first impression that has divided district courts within and without the Eleventh Circuit, the court in Peer v. Liberty Life Assurance Co. of Boston, 2021 WL 1257440 (11th Cir. Apr. 6, 2021), held that it does not.  Although the fee-shifting statute provides that “the court in its discretion may allow a reasonable attorney’s fee and costs of action to either party,” the Eleventh Circuit determined that the statute is best understood to...
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Email Service of Motion to Vacate Arbitration Award Not Sufficient Without Prior Express Consent, and Agreement to Arbitrate Under AAA Rules Does Not Provide Such Consent

The Eleventh Circuit rejected an argument from a party seeking to vacate an arbitration award that an email courtesy copy of a “notice of motion” was effective service under the Federal Arbitration Act.  In O’Neal Constructors, LLC v. DRT America, LLC, 2021 WL 1220710 (11th Cir. Apr. 1, 2021), the appellant, DRT, sought to vacate an arbitration award in O’Neal’s favor. Section 12 of the Federal Arbitration Act (“FAA”) requires a party seeking to vacate an arbitration award to serve notice of a motion to vacate within three months after the award is delivered.  9 U.S.C. § 12. ...
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General Statistical Evidence of “Local Controversy” Held Insufficient for Jurisdiction Under Class Action Fairness Act

Can class-action plaintiffs avoid federal court by relying on general economic studies and  population statistics to prove that their case should be in state court? Not in the Eleventh Circuit. In Smith v. Marcus & Millichap, Inc., 2021 WL 939184 (11th Cir. Mar. 12, 2021), the court held that “studies, surveys, and census data—which do not directly involve the plaintiffs”—are not “sufficient to establish that a certain percentage of the plaintiff class are citizens of a particular state for the purposes of CAFA’s local controversy and discretionary exceptions.” Smith concerned the...
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Equipment Distributor Can’t Defeat Summary Judgment on Claims that Competitor Conspired with Manufacturer to Terminate Business with Distributor

The Eleventh Circuit affirmed summary judgment for a defendant facing claims under the Sherman Antitrust Act, concluding that the plaintiff’s evidence was “at least ‘as equally consistent with permissible competition as it is with an illegal conspiracy.’” The court’s decision in American Contractors Supply, LLC v. HD Supply Construction Supply, Ltd., 2021 WL 822194 (11th Cir. Mar. 4. 2021), underscores the high bar for plaintiffs alleging an unlawful vertical conspiracy. To defeat summary judgment, a plaintiff must affirmatively present evidence “tending to exclude the inference” that the...
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Derivative Jurisdiction Doctrine Does Not Apply to Personal Jurisdiction

In the category of legal doctrines that have outlived whatever usefulness that they once had falls the doctrine of “derivative jurisdiction”—that a federal district court must dismiss a removed case if the state court from which it was removed lacked subject-matter jurisdiction. The doctrine was repealed by statute for cases removed under the general removal provision, 28 U.S.C. § 1441(f), but the question remains whether it has any viability with respect to cases removed under other provisions. In Reynolds v. Behrman Capital IV L.P., 2021 WL 683997 (11th Cir. Feb. 23, 2021), the court...
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