Does ERISA’s fee-shifting provision, 29 U.S.C. § 1132(g)(1), permit a court to award fees against a party’s counsel? Deciding this issue of first impression that has divided district courts within and without the Eleventh Circuit, the court in Peer v. Liberty Life Assurance Co. of Boston, 2021 WL 1257440 (11th Cir. Apr. 6, 2021), held…
Author: Wendy Spiro
Email Service of Motion to Vacate Arbitration Award Not Sufficient Without Prior Express Consent, and Agreement to Arbitrate Under AAA Rules Does Not Provide Such Consent
The Eleventh Circuit rejected an argument from a party seeking to vacate an arbitration award that an email courtesy copy of a “notice of motion” was effective service under the Federal Arbitration Act. In O’Neal Constructors, LLC v. DRT America, LLC, 2021 WL 1220710 (11th Cir. Apr. 1, 2021), the appellant, DRT, sought to vacate…
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…
Court Upholds (Again) $20 Million Punitive-Damages Verdict Against Phillip Morris
In what may be one of the last Engle progeny cases to reach the Eleventh Circuit, the court again upheld an award of punitive damages against the tobacco company defendant, rejecting Phillip Morris’s argument that the award—which was over 3 times the amount of compensatory damages awarded to the individual plaintiff—was unconstitutionally excessive in violation…
End of Engle Cigarette Litigation in Eleventh Circuit?
Judge Kevin Newsom begins his opinion for the court in Harris v. R.J. Reynolds Tobacco Co., 2020 WL 6816965 (11th Cir. Nov. 20, 2020), with the auspicious observation that this Engle case is “one of the last that we’re likely to see.” Correct or not, the comment evokes the long history in the Eleventh Circuit…
Conservation Easements with a Limited Reservation of Development Rights Are Potentially Deductible
In Pine Mountain Preserve LLLP v. Commissioner, 2020 WL 6193897 (11th Cir. Oct. 22, 2020), the Eleventh Circuit was asked whether a grantor’s reservation of limited development rights prevents a conservation easement from satisfying the requirements to claim a charitable deduction under the qualified conservation contribution rules of section 170(h) of the Internal Revenue Code….
A Sticky Situation: Epoxy Company Is Stuck With Evidence of Intent to Copy, and Evidence of Actual Confusion
The interplay between circumstantial evidence under the Lanham Act’s substantive law of trade dress infringement and the rules for summary judgment was at issue in J-B Weld Co. v. Gorilla Glue Co., 2020 WL 6144561 (11th Cir. Oct. 20, 2020). In J-B Weld,all three judges agreed that the district court erred in entering summary judgment…
Employee Arbitration Award Stands Despite Arbitrators’ Alleged Misinterpretation of the Contract
The Eleventh Circuit refused to vacate an employee’s arbitration award for nearly $4 million for wrongful termination based on the employer’s claim that the arbitration panel misinterpreted the parties’ employment and arbitration agreements in Gherardi v. Citigroup Global Markets Inc., 2020 WL 5553255 (11th Cir. Sept. 17, 2020). The employee brought several claims in arbitration,…
En Banc Court Affirms Summary Judgment in Sharply Divided Decision
In Gogel v. Kia Motors Manufacturing of Georgia, Inc., 2020 WL 4342677 (11th Cir. July 29, 2020), a divided en banc court affirmed the grant of summary judgment to an employer on retaliation claims under Title VII and § 1981, reversing the original panel opinion and producing some testy exchanges among members of the court. …
Eleventh Circuit Decision Highlights Difficulty of Invoking Federal-Question Jurisdiction Over Claim for Declaratory Relief
The United States Constitution created federal courts of limited subject-matter jurisdiction. Thus, a party filing suit in federal court must assert a claim arising under federal law or demonstrate that the litigants are citizens of different states. Generally, a claim brought pursuant to the federal Declaratory Judgment Act is alone insufficient to invoke federal-question jurisdiction….