In its third trip to the Eleventh Circuit attempting to enforce an arbitration agreement in a would-be class action involving bank debit card overdraft practices, the bank’s motion to compel arbitration was again denied, this time because of what the court concluded was a failure to agree on arbitration. Dasher v. RBC Bank (USA), 2018…
Author: Wendy Spiro
En Banc Reminder: Even Self-Serving and Uncorroborated Affidavits Can Preclude Summary Judgment
On January 31, 2018, the full Eleventh Circuit held “that an affidavit which satisfies Rule 56 of the Federal Rules of Civil Procedure may create an issue of material fact and preclude summary judgment even if it is self-serving and uncorroborated.” United States v. Stein, 2018 WL 635960 (11th Cir. Jan 31, 2018) (en banc)….
Presumption Against Extraterritoriality Applied to Alien Tort Statute in Jurisdictional Dispute over Folk Singer’s Death
A popular Chilean folk singer named Víctor Jara was tortured and killed in the wake of the 1973 military coup that toppled Salvador Allende’s government and brought Augusto Pinochet to power. Nearly 40 years later, Jara’s family discovered that his suspected killer, a former Chilean military officer named Pedro Pablo Barrientos Núñez, had moved to…
Be Careful What You Wish For—Eleventh Circuit Rejects Argument That Appellant’s Own Requested Jury Charge Requires Reversal
In Smith v. R.J. Reynolds Tobacco Co., 2018 WL 549141 (11th Cir. Jan. 25, 2018), an Engle progeny tobacco case, the Eleventh Circuit rejected the defendant’s argument that the jury’s compensatory damages award should be reduced based on comparative fault. The relevant legal question was settled last month, when the Florida Supreme Court clarified in…
All That Glitters Isn’t Gold—Eleventh Circuit Affirms Injunction and Restitution Award Against Unregistered Traders in Metals Futures
In U.S. Commodity Futures Trading Commission v. Southern Trust Metals, Inc., 2018 WL 493116 (11th Cir. Jan. 22, 2018), the Eleventh Circuit affirmed an injunction and (most of) a restitution award against two companies and their principal for unregistered trading in metals futures. Southern Trust told its customers that it would invest their money in…
Formality Needed to Secure Post-Dismissal Amendment Right
Last week, in Cita Trust Co. AG v. Fifth Third Bank, 2018 WL 416253 (11th Cir. Jan 16, 2018), the Eleventh Circuit affirmed the dismissal of a $400-million contract dispute over an unauthorized bond transfer, demonstrating that the court will strictly enforce both procedural rules and contracts negotiated by sophisticated entities. This dispute concerned a…
Supreme Court Grants Cert. in Bankruptcy Discharge Case
The Supreme Court granted cert. on January 12, 2018, to review Appling v. Lamar, Archer & Cofrin, LLP (In re Appling), 848 F.3d 953 (11th Cir. 2017), which we reported on below. The case, which involves the bankruptcy discharge exception for fraud, will be heard this term. Posted by Tom Byrne.
Court Limits Right to Cure Improper “Shotgun” Pleadings
The term “shotgun pleading” refers to a complaint that, for one reason or other, fails to give the defendants adequate notice of the claims against them. In the Eleventh Circuit, courts have identified roughly four categories of shotgun pleadings: (1) a pleading with multiple counts where each count adopts the allegations of all preceding counts;…
Eleventh Circuit Declines to Revisit Dreadlocks Discrimination Case En Banc
Nearly a full year after issuing a revised opinion supporting an initial holding that hairstyles and other “cultural characteristics”—like dreadlocks—cannot form the basis for a Title VII claim of intentional racial discrimination, the Eleventh Circuit denied the Equal Employment Opportunity Commission’s petition for rehearing en banc in EEOC v. Catastrophe Management Solutions (CMS), 2017 WL…
Bankruptcy Debtors Can Recover Attorneys’ Fees Spent in Enforcing Stay and Seeking Damages, Including for Appeals
Richard and Patricia Horne filed for bankruptcy protection under Chapter 7 of the Bankruptcy Code. After the bankruptcy was filed and the automatic stay imposed by Section 362(a)(1) went into effect, Mary Mantiply, an attorney, filed a state court action against the Hornes on behalf of Mantiply’s client. Mantiply repeatedly refused to dismiss the case,…