Eversheds Sutherland 11th Circuit Business Blog
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En Banc Court Stands by Ban on Class-Action Incentive Payments for Plaintiffs

Nearly two years after a divided three-three judge panel held that federal law prohibits “incentive payments” to named class representatives (see our previous blog post here), the Eleventh Circuit denied a petition to rehear that case en banc. Johnson v. NPAS Solutions, LLC, 2022 U.S. App. LEXIS 21455 (11th Cir. Aug. 3, 2022). The denial effectively upholds that prohibition across...

Increased Risk of Identity Theft Cannot Establish Article III Standing in Data Breach Cases

The Eleventh Circuit has now taken a stand on whether a substantial risk of identity theft, fraud, and other future harm constitutes Article III standing in data breach cases.  Tsao v. Captiva MVP Rest. Partners, LLC, 2021 WL 381948 (11th Cir. Feb. 4, 2021).  In an opinion authored by Senior Judge Tjoflat, the Eleventh Circuit affirmed the lower court’s decision, holding that...

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 amicus briefs,...

Eleventh Circuit Bans Incentive Payments to Lead Plaintiffs in Class Actions

In what appears to be a first, the Eleventh Circuit recently held that federal law prohibits so-called “incentive payments” to class representatives, even as part of an agreed settlement. The court acknowledged that it was forging a new path in Johnson v. NPAS Solutions, LLC, 975 F.3d 1244, 1248–49 (11th Cir. 2020)—identifying errors that it said had “become commonplace in everyday...

Eleventh Circuit Joins Majority of Circuits in Holding That FAA Prohibits Pre-Hearing Discovery From Non-Parties

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 in 1999, medical...

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