The Eleventh Circuit has held that the TCPA permits a consumer to partially revoke her consent to be called. Schweitzer v. Comenity Bank, 2017 WL 3429381 (11th Cir. Aug. 10, 2017). Emily Schweitzer had a past-due credit card account with Comenity Bank. The bank called her cell phone (the number which she had provided in…
Author: Wendy Spiro
Court Rejects Plaintiff’s Claims for FLSA and Rehabilitation Act Violations
This week the Eleventh Circuit affirmed the lower court’s (N.D. Ala.) decision to reject a city employee’s claims for violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-219, and the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 794. Boyle v. City of Pell City, 2017 WL 3429383 (11th Cir. Aug. 10,…
“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…
Kevin Newsom Confirmed as Eleventh Circuit’s Newest Judge
The Senate has confirmed Kevin Newsom as the Eleventh Circuit’s newest judge. Newsom, 44, is currently the chair of Bradley Arent Boult Cummings’s appellate group. He graduated summa cum laude from Samford University and magna cum laude from Harvard Law School, and clerked for Judge O’Scannlain on the Ninth Circuit and for Justice Souter. He…
Court Rules Question of Arbitral Venue Presumptively for Arbitrator to Decide
In an international arbitration dispute between an Israeli company (“Profimex”) and an American business (“OAD”) incorporated in the state of Georgia, the Eleventh Circuit ruled this week “that questions of arbitral venue, even those arising in international arbitration, are presumptively for the arbitrator to decide.” Bamberger Rosenheim, Ltd., (Israel) (“Profimex”) v. OA Development, Inc., (United…
Employee Waived Jury Trial on Formation of Arbitration Agreement
The Eleventh Circuit labored to disentangle a procedural morass in Burch v. P.J. Cheese, Inc., 2017 WL 2885095 (11th Cir. July 7, 2017), ultimately holding that the plaintiff, a former employee alleging violations of a raft of federal employment laws, failed to perfect his right to a jury trial on the existence of an…
A Policy-Limits Demand Under Georgia Law May Require Timely Payment as a Condition of Settlement
In Grange Mutual Casualty Co. v. Woodard, 2017 WL 2819729 (11th Cir. June 30, 2017), the Eleventh Circuit applied the Georgia Supreme Court’s holding in Grange Mutual Casualty Co. v. Woodard, 797 S.E.2d 814 (Ga. 2017), to hold that an insurer’s failure to deliver payment within the time required by a policy-limits demand meant that…
Primary Defendants Tied to Liability for Damages in Class Actions Seeking Monetary Relief
In an opinion published June 14, 2017, Hunter v. City of Montgomery, 2017 WL 2634162, the Eleventh Circuit affirmed the lower court’s remand order under the home state exception to the Class Action Fairness Act (“CAFA”). The central issue was the classification of a party as one of the “primary defendants” within the meaning of CAFA….
ACLU Gets Jurisdictional Discovery from Michael Jackson Because of Disputed Facts
When is a litigant entitled to jurisdictional discovery? The Eleventh Circuit addressed this issue in an opinion published June 20, 2017, ACLU of Florida, Inc. v. City of Sarasota, 2017 WL 2636542, holding that, when the jurisdictional facts are genuinely in dispute and a party does not unduly delay in seeking discovery, the court abuses its…
No TCPA Liability for Faxes That Do Not Market a Product
“Unsolicited advertisements” prohibited by the Telephone Consumer Protection Act (TCPA) do not include faxes that merely facilitate the purchase of a product but do not promote the sale of products, the Eleventh Circuit confirmed in Florence Endocrine Clinic, PLLC v. Arriva Medical, LLC, 2017 WL 2415966 (11th Cir. June 5, 2017). The defendant was a…