An appeal concerning the meaning of coupon settlements under the Class Action Fairness Act instead produced an important opinion, Drazen v. Pinto, 2022 LEXIS 20766 (11th Cir. July 27, 2022), addressing the certification of classes that are defined to include members who have not been injured. Some background may be helpful in understanding the ruling….
Rule 11 Motion May Be Filed After Final Judgment, Provided 21-Day Safe Harbor Period Has Run
The Eleventh Circuit recently confirmed that a litigant may file a Rule 11 motion even after final judgment has been entered—notwithstanding arguably contrary language in some of the court’s prior decisions—as long as the 21-day safe harbor period required by the rule has run. Huggins v. Lueder, Larkin & Hunter, LLC, 39 F.4th 1342 (11th…
ERISA Beneficiary May Recover as “Appropriate Equitable Relief” Benefits Lost Due to Fiduciary’s Breach
The Eleventh Circuit has joined every other Court of Appeals to consider the issue by holding that an ERISA beneficiary may recover under ERISA’s Section 1132(a)(3), which permits an action for “appropriate equitable relief,” benefits lost as a result of a breach of fiduciary duty. Gimeno v. NCHMD, Inc., 38 F.4th 910 (11th Cir. June…
En Banc Court Stands by Ban on Class-Action Incentive Payments for Plaintiffs
Nearly two years after a divided three-three judge panel held that federal law prohibits “incentive payments” to named class representatives (see our previous blog post here), the Eleventh Circuit denied a petition to rehear that case en banc. Johnson v. NPAS Solutions, LLC, 2022 U.S. App. LEXIS 21455 (11th Cir. Aug. 3, 2022). The denial…
Receiver for Entity Involved in Fraud Lacked Standing to Bring Aiding and Abetting Claims against Bank
A divided Eleventh Circuit panel held in Perlman v. PNC Bank, N.A., 38 F.4th 899 (11th Cir. June 27, 2022), that a court-appointed receiver lacked standing to bring claims against the bank which, he alleged, aided and abetted the fraudulent scheme committed by the companies for which he was appointed receiver. The receiver’s action was…
Post-Petition Payment of Section 503(b)(9) Claims Does Not Reduce a Creditor’s New Value Preference Defense
The Eleventh Circuit has held that amounts paid post-petition for an administrative expense claim under Section 503(b)(9) of the Bankruptcy Code do not reduce the “new value” otherwise available to the creditor as a defense to a preference claim. Auriga Polymers Inc. v. PMCM2, LLC, 2022 U.S. App. LEXIS 19761 (11th Cir. July 18, 2022)….
No Tiebreaker Necessary: Breaking with the Federal Circuit, Court Holds That Litigation Can Result in No “Prevailing Party” for Cost and Fee Shifting
In Royal Palm Properties, LLC v. Pink Palm Properties, LLC, 2022 U.S. App. LEXIS 18682 (11th Cir. July 7, 2022), the Eleventh Circuit held that there may be no prevailing party for the purposes of post-verdict cost and fee shifting. A unanimous appellate panel affirmed a district court’s denial of a litigant’s motion for costs…
Panel Invites Full Court to Revisit Grounds on Which International Arbitration Awards Can Be Vacated
In Corporacion AIC, SA v. Hidroelectrica Santa Rita S.A., 34 F.4th 1290 (11th Cir. 2022), a panel of the Eleventh Circuit urged the full court to reconsider its holding in Inversiones y Procesadora Tropical INPROTSA, S.A. v. Del Monte International GmbH, 921 F.3d 1291 (11th Cir. 2019), and to add to the grounds on which…
Court Denies Coverage in Another Covid-19 Case, This Time Under Georgia Law
Recognizing that every federal and state appellate court has held that the presence of Covid-19 does not cause direct physical harm to a business’s property, the Eleventh Circuit has held again—this time under Georgia law—that Covid-related expenses and losses are not covered by a business insurance policy. In Henry’s Louisiana Grill, Inc. v. Allied Insurance…
Fair Debt Collection Laws May Apply to Mortgage Statements
Answering a question of first impression for the court, the Eleventh Circuit held in Daniels v. Select Portfolio Servicing, Inc., 2022 U.S. App. LEXIS 14013 (11th Cir. May 24, 2022), that a mortgage statement submitted to a borrower may, under certain circumstances, constitute a communication in connection with a debt that is subject to the…