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…
Author: Tom Byrne
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 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,…
Fair Debt Collection Practices Act Venue for Garnishments Not Limited
Under the Fair Debt Collection Practices Act, a debt collector who sues a consumer on a debt may file the action only where the consumer signed the contract or where the consumer currently resides. The question presented in Ray v. McCullough Payne & Haan, LLC, 2016 WL 5436776 (11th Cir. Sept. 29 2016) was whether…
Tribal Arbitration Agreement in Payday Loan Not Enforced
An arbitration provision in a payday loan agreement was held unenforceable because the provision’s exclusive designated arbitrator, the Cheyenne River Sioux Tribal Nation, was unavailable and no substitute could be appointed. Parm v. Nat’l Bank of Cal., N.A., 2016 WL 4501661 (11th Cir. Aug. 29, 2016) (Dubina, J.). The lender, Western Sky Financial, conceded that…