When a mortgage lender offers a borrower a forbearance plan—agreeing to accept lowered monthly payments in exchange for refraining from foreclosure—is it accurate for the lender to report that the borrower’s account is “past due” and “delinquent” even when the borrower complies with the plan? “Yes” was the Eleventh Circuit’s answer in Felts v. Wells…
Eleventh Circuit Invalidates Liquidated Damages Provision As Impermissible Penalty
In Autauga Quality Cotton Association v. Crosby, 2018 WL 3097948 (June 25, 2018), the Eleventh Circuit invalidated a liquidated damages provision, holding it to be an impermissible penalty under Alabama law. Appellant Autauga Quality Cotton Association is a not-for-profit cotton-marketing association based in Central Alabama whose mission is to provide price stability to both farmers and…
Eleventh Circuit Invalidates FTC Cease and Desist Order
In LabMD, Inc. v. Federal Trade Commission, 2018 WL 3056794 (11th Cir. June 6, 2018), the Eleventh Circuit vacated an FTC cease and desist order, finding that the order was unenforceable because it lacked the required specificity that would enable the order to be enforced by a court. LabMD is a now-defunct medical laboratory. Given the…
Remediation Plans Don’t Necessarily Moot Independent Claims for Similar Injunctive Relief Under the ADA
Can a remediation plan designed to settle one lawsuit moot claims for similar injunctive relief in another case? Maybe in some contexts, but the Eleventh Circuit rejected that argument on the facts presented in Haynes v. Hooters of America, LLC, 2018 WL 3030840 (11th Cir. June 19, 2018), an ADA dispute over website accessibility for…
Court Revives Suit Against Employer that Allegedly Denied Woman Promotion for Not Being Korean
The Eleventh Circuit recently gave new life to a plaintiff’s claims of employment discrimination in Jefferson v. Sewon America, Inc., 2018 WL 2449228 (11th Cir. June 1, 2018). Jerberee Jefferson, an African-American woman, filed suit against her former employer, Sewon America, Inc., for racial discrimination and retaliatory termination. Although Jefferson began her career at Sewon…
Rule 41 Not Proper Method to Dismiss Particular Claims
What is the proper procedure for voluntarily dismissing a count in a civil action? This question is not explicitly answered by the text of the Federal Rules of Civil Procedure. The Eleventh Circuit offered a tutorial in Perry v. Schumacher Group of Louisiana, 2018 WL 2473721 (11th Cir. June 4, 2018), making clear that Fed….
Toxicology Expert’s Opinions Properly Excluded for Failure to Consider Dose-Response Relationship or Potential Alternative Causes of Plaintiff’s Disease
In Williams v. Mosaic Fertilizer, LLC, 2018 WL 2191426 (11th Cir. May 14, 2018), the Eleventh Circuit affirmed the District Court’s exclusion of proffered expert testimony by a toxicologist, and of the plaintiff’s proposed lay testimony that her home had “no present value” because of emissions from a nearby fertilizer plant, and affirmed the resulting…
Venezuela’s Attempt to Purchase Bolívar Artifacts from Florida Resident Was “Commercial Activity” Not Subject to Sovereign Immunity
In Devengoechea v. Bolivarian Republic of Venezuela, No. 16-16816 (11th Cir. May 10, 2018), the Eleventh Circuit held that the Foreign Sovereign Immunities Act’s “commercial activity” exception to sovereign immunity applied to Venezuela’s alleged failure to return or pay for a collection of artifacts owned by a Florida resident. Plaintiff Ricardo Devengoechea, a citizen of…
Bank Did Not Waive Arbitration Rights Against Unnamed Class Members
In the latest appeal emanating from the Checking Account Overdraft Litigation MDL proceeding pending in the Southern District of Florida, the Eleventh Circuit returned to a question that it dodged in a previous appeal: whether Wells Fargo waived its arbitration rights as to unnamed members of a certified class. Gutierrez v. Wells Fargo Bank, NA,…
FLSA Opt-Ins Become Party Plaintiffs Upon Filing Written Consents
In Mickles v. Country Club Inc., 2018 WL 1835316 (11th Cir. Apr. 18, 2018), the Eleventh Circuit held, considering a question of first impression in any circuit, that filing a written consent to proceed as a party plaintiff in an FLSA collective action confers party plaintiff status on the filer, even if no collective action…