Eleventh Circuit

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The Eleventh Circuit upheld an arbitral award last month despite the arbitrators’ failure to make certain disclosures regarding potential sources of bias. The litigation involved a dispute between the Panama Canal Authority, the government agency responsible for the operation and management of the Panama Canal, and Grupo Unidos por el Canal, S.A., the contractor hired to construct the Panama Canal expansion. Complications with the project caused progress to be “severely delayed and disrupted,” resulting in liability disputes between the parties. 

The Eleventh Circuit’s opinion last month in FTC v. On Point Capital Partners LLC, et al., clarifies the ramifications of the Supreme Court’s ruling in AMG Capital Management regarding the prohibition of equitable monetary relief under Section 13(b) of the Federal Trade Commission Act (“FTCA”).

Section 13(b) of the FTCA authorizes the Federal Trade Commission to obtain a preliminary injunction and, in proper cases, a permanent injunction in federal court against any person, partnership, or corporation that the Commission believes is violating, or is about to violate, any provision of law enforced by the Commission.

On February 2, 2021, the Eleventh Circuit reversed the district court’s denial of class certification for failure to prove an administratively feasible method to identify absent class members. The Eleventh Circuit’s rejection of administrative feasibility as a prerequisite to certification under Federal Rule of Civil Procedure 23 has deepened a circuit split on the issue.

On February 4, 2021, the Eleventh Circuit affirmed the dismissal of a customer’s proposed class action lawsuit against a Florida-based fast-food chain, PDQ, over a data breach. The three-judge panel rejected the argument that an increased risk of identity theft was a concrete injury sufficient to confer Article III standing, deepening a circuit split on this issue.

Common practice dictates that plaintiffs often prefer to be in state court – and will sometimes go to great lengths to avoid federal court jurisdiction. That was the case in Deroy v. Carnival Corporation, a recent Eleventh Circuit decision, wherein the court rejected a plaintiff’s “creative effort” to escape a forum-selection clause requiring her to litigate in federal court.

Imagine this scenario: after years of litigation in federal court, your client reaches a settlement agreement with the opposing party. The lawsuit is dismissed pursuant to the settlement agreement and Federal Rule of Civil Procedure 41(a)(1). When the opposing party breaches the settlement agreement, you promptly file a motion to compel enforcement – only to have your motion denied for lack of jurisdiction.

In today’s litigation practice, a defendant often receives a copy of a filed complaint before it is formally served with the pleading. Sometimes, plaintiff’s counsel emails a copy to the defendant’s counsel after filing. If it is a particularly newsworthy lawsuit, an employee or officer of a corporate defendant may download a copy of the filed complaint from a news website. Or someone may post a copy of the complaint on social media.

In Hartford Accident and Indemnity v. Crum & Forster Specialty Insurance et al., the Eleventh Circuit recently reversed a District Court’s decision refusing to vacate its prior judgments even though vacatur was a condition of a settlement agreement negotiated between two litigating parties. The Eleventh Circuit found the District Court abused its discretion and misapplied the Supreme Court’s decision in U.S. Bancorp Mortgage Company v. Bonner Mall Partnership, which sets out an equitable approach that generally counsels against granting requests for vacatur made after the parties settle, absent exceptional circumstances. The Eleventh Circuit decision is consistent with analyses out of the First and Second Circuits.