The Fair Labor Standards Act’s statute of limitations is not tolled when a plaintiff files an FLSA action that is later dismissed and then files a new, untimely, action. This was the court’s holding in Wright v. Waste Pro USA, Inc., 696 F.4th 1332 (June 13, 2023), which also rejected the plaintiff’s request for equitable…
Author: Stacey Mohr
Individualized Issues May Predominate Standing Inquiry in Data-Breach Class Action
As data-breach class actions have become increasingly frequent in recent years, courts continue to grapple with whether, and to what extent, these cases meet the requirements for certification of a damages class under Rule 23(b)(3). In its latest such case, Green-Cooper v. Brinker Int’l, Inc., No. 21-13146, 73 F. 4th 883 (July 11, 2023), the…
Class Certification in Consumer-Fraud Case Depends on What Evidence—if Any—Is Required to Establish Reliance Under State Law
The Eleventh Circuit reversed and remanded class certification of most claims brought by a group of consumers who alleged their Ford Mustang Shelby GT350s were not “track ready” as advertised. The court’s decision in Tershakovec v. Ford Motor Company, No. 22-10575, — F.4th —, 2023 WL 4377585 (11th Cir. July 7, 2023), focused on the…
CFPB’s “Egregious” Conduct Provides Roadmap for How Not to Defend a 30(b)(6) Deposition
The deposition of a party’s corporate representative under Rule 30(b)(6) often presents a tension between inquiry into the party’s knowledge of facts—which is fair game—and inquiry into the party’s legal positions—which can delve into protected attorney work-product. Lawyers representing the Consumer Financial Protection Bureau (“CFPB”) in a case about an allegedly fraudulent debt-collection scheme provided…
Language of Insurance Policy Governs Even When Flatly Contradicted by Clear and Overwhelming Proof of the Parties’ Intent
It is a truth universally acknowledged (by judges and lawyers, anyway), that unambiguous contract language must be interpreted according to its plain terms, without resort to extrinsic evidence. But what if that extrinsic evidence shows, without dispute, that both parties meant something else entirely? That court answered that question in Shiloh Christian Center v. Aspen…
Foreign Parent Company Not Subject to Personal Jurisdiction Based Solely on Actions of Subsidiary, and Expert Testimony Properly Excluded as Unreliable in Products-Liability Case
In the absence of facts supporting piercing the corporate veil or rendering affiliated companies alter egos, the actions of a subsidiary alone cannot subject a foreign parent company to personal jurisdiction in Florida, the Eleventh Circuit recently confirmed. The court’s decision in Knepfle v. J-Tech Corp., 2022 U.S. App. LEXIS 25781 (11th Cir. Sept. 14,…
Arbitration Agreement’s Delegation Clause Must Be Enforced Even If Arbitration of Underlying Claims Prohibited by Statute
In Attix v. Carrington Mortgage Services, LLC, 35 F.4th 1284 (11th Cir. May 26, 2022), the Eleventh Circuit reversed a district court’s denial of a motion to compel arbitration and enforced the parties’ agreement to delegate to the arbitrator questions of arbitrability, including whether arbitration itself was precluded by the Dodd-Frank Act. The decision not…
Paradise Found: Consumer Not Damaged by Purchasing (and Consuming) Gin Containing Prohibited “Grains of Paradise”
The Eleventh Circuit again had the opportunity to interpret the scope of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA), this time applying the Act’s safe-harbor provision for actions otherwise permitted by law. In Marrache v. Bacardi U.S.A., Inc., 17 F.4th 1084 (11th Cir. Nov. 8, 2021), the court affirmed dismissal of a putative…
Interlocutory Appeal Properly Taken from Declaratory Judgment on Insurer’s Duty to Defend; Ambiguous Exclusion Construed in Favor of Coverage
When a liability insurer seeks a declaratory judgment on whether it has a duty to defend and indemnify an insured, and the district court enters an order finding a duty to defend but putting off a decision on the duty to indemnify, is that nonfinal order subject to interlocutory appeal? In James River Insurance Co….
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…