Eversheds Sutherland 11th Circuit Business Blog
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Court Compels Individual Arbitration of Consumer Class Action

In Larsen v. Citibank FSB, 871 F.3d 1295 (11th Cir. Sept. 26, 2017), the Eleventh Circuit reversed the Southern District of Florida’s denial of a motion to compel arbitration of a consumer debt class action.  The plaintiff, David Johnson, filed a putative class action alleging that Defendant KeyBank had improperly changed the sequence of debit card transactions to maximize overdraft...

“Gateway” Issue Delegation to an Arbitrator is Enforceable, Without Qualifications; Circuit Split Noted

The Eleventh Circuit enforced an employment-related arbitration agreement’s provision delegating to the arbitrator “gateway” questions of arbitrability in Jones v. Waffle House, Inc., 866 F3d 1257 (11th Cir. Aug. 7, 2017).  The opinion, written by Judge Marcus and joined by Judge Hull and Judge Clevenger visiting from the Federal Circuit, also rejects the notion, adopted by the Fifth,...

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 the designated...

Statutory Non-Waiver Provision Does Not Prevent Severance of Unlawful Terms and Arbitration Enforcement

Where an arbitration provision includes substantive limitations on the relief otherwise available to a party under a federal statute, there are three possible judicial responses: sever the offending provisions and enforce the agreement; enforce the agreement and leave any invalidity questions to the arbitrator, as in PacifiCare Health Systems, Inc. v. Book, 538 U.S. 401 (2003); or...

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