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 The doctrine was repealed by statute for cases removed under the general removal…
Author: Tom Byrne
Administrative Feasibility Not Separate Class Certification Requirement
The Eleventh Circuit aligned itself last week with the majority of circuits in holding that a threshold determination that identifying class members is administratively feasible is not a separate requirement for class certification. The ruling, in the closely-watched case of Cherry v. Dometic Corp., 2021 WL 346121 (11th Cir. Feb. 2, 2021), which attracted numerous…
No Heightened Duty Owed to Class Representatives by Class Counsel
Counsel for a proposed class do not owe the named class representatives a heightened fiduciary duty relative to other class members. So held the Eleventh Circuit in Medical & Chiropractic Clinic, Inc. v. Oppenheim, 981 F.3d 983 (11th Cir. 2020), a decision which marked the court’s return to an unseemly controversy stemming from litigation against…
Herbalife Top Distributors Lose Arbitration Bid
Top distributors of the sometimes controversial nutrition products marketer Herbalife lost their bid to compel arbitration of RICO and related claims made by lower-level distributors in Lavigne v. Herbalife, Ltd., 2020 WL 4342671 (11th Cir. July 29, 2020), which affirmed the order of a Florida district court. The top distributors, alleged to be part of…
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…
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”…
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…
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…
Appeal time runs from stipulation of dismissal filing—not subsequent order
Fed. R. Civ. P. 41(a)(1)(A)(ii) provides that an action may be dismissed, without a court order, by filing “a stipulation of dismissal signed by all parties who have appeared.” Almost invariably, however, district courts respond to the filing of a stipulation of dismissal with their own order of dismissal, as if to make the dismissal…
Asset Buyer Not Bound by Lanham Act Injunction Without Proof of Actual Notice
The buyer of most of the operating assets of a company subject to a Lanham Act injunction was held by the Eleventh Circuit not to be subject to the injunction, even though the seller’s CEO and owner became president and part-owner of the buyer as part of the sale. ADT LLC v. NorthStar Alarm Services,…