Eversheds Sutherland 11th Circuit Business Blog
content top

Eleventh Circuit Resets Title VII Retaliation Claim Standard

Undaunted by COVID-19, the Eleventh Circuit pressed forward with its work in Monaghan v. Worldpay US, Inc., 2020 WL 1608155 (11th Cir. Apr. 2, 2020), which reversed the district court’s grant of summary judgment for an employer, sending the plaintiff-employee’s Title VII race retaliation claim to a jury. The district court had both applied the wrong standard and failed to limit its analysis to the claims the plaintiff pled in her complaint. While the plaintiff and defendant each argued about retaliation claims under the Age Discrimination in Employment Act (“ADEA”) and 42 U.S.C. § 1981 in...
Continue Reading

Eleventh Circuit Affirms Individual’s $41 Million Verdict Against Tobacco Companies

In yet another opinion applying the Florida Supreme Court’s landmark decision in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006), the Eleventh Circuit affirmed denial of motions for judgment as a matter of law against R.J. Reynolds Tobacco Company and Philip Morris USA Inc. in a published opinion upholding multi-million dollar jury verdicts against both defendants. Kerrivan v. R.J. Reynolds Tobacco Co., 2020 WL 1429574 (11th Cir. Mar. 24, 2020). Plaintiff Kerrivan became an addicted serial smoker at an early age, suffered increasingly serious medical diagnoses as a result, and made...
Continue Reading

Oral Arguments to Be Live-Streamed

The Eleventh Circuit’s General Order No. 45 authorizes panels to hear argument by audio or teleconference, rather than in person, in light of the COVID-19 pandemic and resulting safety precautions. The arguments will be live-streamed to the public, at no charge, to the extent feasible (and not in cases that would not otherwise be argued publicly, including those involving national security).
Continue Reading

Foundry Employees’ Action is a “Mass Action” Subject to Removal Under the Class Action Fairness Act

The Eleventh Circuit has clarified the scope of the “local event exception” to the federal-court jurisdiction over “mass actions” conferred by the Class Action Fairness Act (“CAFA”), holding that claims by former foundry employees against manufacturers and distributors of products used at the foundry are not within the exception.  Spencer v. Specialty Foundry Prods. Inc., 2020 WL 1270276 (11th Cir. Mar. 17, 2020). The plaintiffs in the case are 230 former workers at a now-closed Alabama foundry.  They worked in different jobs at different times, but all claim that they were harmed by...
Continue Reading

Eleventh Circuit Restricts Physical Access to Courthouse, Provides Exemption from Paper Filing

The Eleventh Circuit’s General Order No. 44 (March 15, 2020) provides that: • Access to the Tuttle Courthouse and Godbold Building is restricted to judges, Court staff, members of the media, and visitors with official Court business; • Paper filings are to be made by delivery to the Court’s dropbox at the Godbold Building’s entrance on Poplar Street between 8:30 and 5:00 on business days; • Individuals who have been diagnosed with COVID-19, have had a known exposure to COVID-19, have been instructed to self-quarantine, and/or are experiencing flu-like symptoms may not enter Court buildings...
Continue Reading

Appellate Lapses Ding Body Shops’ Antitrust Appeal

In another appeal from the body shops vs. insurers antitrust MDL, Automotive Alignment & Body Service, Inc. v. State Farm Mutual Automobile Insurance Co., 2020 WL 1074420 (Mar. 6, 2020), the Eleventh Circuit first delved into two procedural questions arising from lapses by appealing plaintiffs, one concerning appealability; the other, reviewability.  The appellants were three groups of plaintiffs whose actions were dismissed by the district court.  Two of the groups failed to amend their complaints by the deadline set in the dismissal order.  That failure caused the judgments to become...
Continue Reading

Eleventh Circuit Considers Issue of First Impression Regarding Rule 41(d) Awards of Costs

Although parties generally bear their own costs upon voluntary dismissal of a federal case, there are, as with most rules, exceptions. For example, pursuant to Federal Rule of Civil Procedure 41(d), if a plaintiff voluntarily dismisses an action and then files a second action “based on or including the same claim,” the court may: (1) “order the plaintiff to pay all or part of the costs of that previous action”; and (2) “stay the proceedings until the plaintiff has complied” with the order awarding costs. But suppose a plaintiff voluntarily dismisses a case filed in federal court and...
Continue Reading

Judge Andrew Brasher Confirmed to the Eleventh Circuit

The U.S. Senate confirmed U.S. District Judge Andrew Brasher’s nomination to the Eleventh Circuit with a 52-43 vote on February 11, 2020.  Judge Brasher was previously sworn into office as a United States District Judge for the Middle District of Alabama on May 1, 2019.  Prior to taking the bench, Judge Brasher served as Alabama’s Solicitor General and as law clerk to Judge William Pryor, now his colleague.  Judge Brasher will fill the vacancy created when Chief Judge Ed Carnes announced that he will take senior status. A majority of the judges in regular active service on the court have...
Continue Reading

Eleventh Circuit Holds That TCPA’s Definition of “Automatic Telephone Dialing System” Requires Use of Random or Sequential Number Generator

Addressing a question that has divided courts in a decision that will substantially affect the scope of liability under the Telephone Consumer Protection Act (“TCPA”), the Eleventh Circuit has held that equipment is not an “automatic telephone dialing system” under the TCPA unless the equipment employs random or sequential number generation and requires no human intervention.  Glasser v. Hilton Grand Vacation Co., 2020 WL 415811 (11th Cir. Jan. 27, 2020). The TCPA was enacted in 1991 and prohibits, among other things, unconsented-to calls to cellular telephones made using an “automatic...
Continue Reading

Eleventh Circuit Emphasizes Importance of Striking Shotgun Pleadings

In a consolidated appeal of two cases filed against banking institutions, the Eleventh Circuit expressed frustration over being “forced to review a judgment that should never have been entered.”  Estate of Bass v. Regions Bank, Inc., 2020 WL 284094 (11th Cir. Jan. 21, 2020).  Rather than striking the complaints as impermissible shotgun pleadings and allowing the plaintiff an opportunity to amend, the district court had entered judgment and dismissed the case under Rules 12(b)(1) and 12(b)(6).  Ultimately, this resulted in partial vacatur of the district court’s decision. Plaintiff Bass...
Continue Reading

Eleventh Circuit Affirms Dismissal With Prejudice of Auto Shops’ RICO Complaint Against Insurers

The Eleventh Circuit has affirmed the dismissal with prejudice of a putative class action brought by auto body collision repair shops against dozens of insurers and alleging RICO violations, fraud, and unjust enrichment.  Crawford’s Auto Center, Inc. v. State Farm Mutual Automobile Insurance Co., 2019 WL 6974428 (Dec. 20, 2019). The plaintiffs alleged that the defendant insurers entered into “direct repair program,” or “DRP,” agreements with some repair shops, and that those “DRP shops” agreed to “certain uniform standards and procedures” in making covered repairs to autos insured by the...
Continue Reading

Automobile Insurer’s “Lessor Liability Endorsement” Is Not Illusory

An automobile insurer’s “Lessor Liability Endorsement” is not illusory, notwithstanding the fact that federal law bars claims of vicarious liability against vehicle lessors, because the endorsement imposes upon the insurer a duty to defend lessors against vicarious liability claims.  Hallums v. Infinity Ins. Co., 2019 WL 6872507 (11th Cir. Dec. 17, 2019). The plaintiffs entered into vehicle leases that required them to maintain liability insurance with specified limits.  They purchased automobile insurance policies with lower limits for themselves, but including a “Lessor Liability...
Continue Reading

Robert Luck and Barbara Lagoa Sworn In as Eleventh Circuit Judges

Two Miami-born, Florida Supreme Court justices have been sworn in to the Eleventh Circuit. Both judges served on Florida’s high court for less than a year before being nominated to the Eleventh Circuit by President Trump in September. Judge Luck, 40, was confirmed by the U.S. Senate by a vote of 64 to 31 in November and sworn in on November 19, 2019. Judge Lagoa, 52, was confirmed with a vote of 80 to 15 and was sworn in on December 6, 2019. Judge Lagoa was the first Cuban-American woman on the Florida Supreme Court and is the first Hispanic-American nominated by President Trump for...
Continue Reading

Class Action Seeking Reinstatement of Life Insurance Policies Was Properly Removed to Federal Court

In Anderson v. Wilco Life Ins. Co., 2019 WL 6242199 (11th Cir. Nov. 22, 2019), the Eleventh Circuit reversed the district court’s order remanding to state court a putative class action against a life insurance company. The case had been properly removed under the Class Action Fairness Act (“CAFA”), the appeals court held, because the plaintiff’s request for an order requiring reinstatement of life insurance policies put in controversy the face value of those policies, which far exceeded $5 million. Anderson filed the action in state court, alleging that Wilco had improperly raised premiums...
Continue Reading