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…
Year: 2019
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…
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…
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…
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…
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…
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…
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…
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…
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. …