James H. Wilson III sued Hearos, LLC in Georgia state court, alleging he suffered permanent hearing loss at a shooting range because of Hearos’s faulty earplugs. Wilson v. Hearos, LLC, No. 23-12550 (11th Cir. Feb. 18, 2025). A non-party, Protective Industrial Products, Inc. (PIP), removed that suit to federal court, where it was dismissed as…
Tag: Judge Barbara Lagoa
Federal Communications Commission’s 2023 Rule Interpreting “Prior Express Consent” Under the TCPA Violates the Administrative Procedure Act
The Eleventh Circuit vacated the Federal Communication Commission’s (“FCC”) 2023 rule interpreting the meaning of “prior express consent” under the Telephone Consumer Protection Act (“TCPA”) because the rule impermissibly conflicted with the ordinary statutory meaning of “prior express consent.” Insurance Marketing Coalition Limited v. FCC, 127 F.4th 303 (11th Cir. 2025). Insurance Marketing Coalition Limited…
Non-signatory Spouse Not Subject to Mandatory Arbitration
In Lubin v. Starbucks Corp., 2024 WL 5113125 (11th Cir. Dec. 16, 2024), the Eleventh Circuit rejected an employer’s attempt to compel arbitration of claims brought by a former employee’s husband, where he had not signed an agreement with the employer and his claims were not sufficiently related to his wife’s employment agreement. The decision…
Divided Panel Affirms Remand of COVID-Related Claims to State Court
A resident of a Florida assisted living facility died shortly after contracting COVID-19. The representatives of her estate brought an action in state court against the owners and operators of the facility, alleging that the defendants failed to prevent the spread of the virus at the facility and asserting only state-law claims. The defendants removed…
But-For Causation Required for Employees to Succeed on FMLA Retaliation Claims
An employee bringing a retaliation claim under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601-54 must prove that the retaliation was the but-for cause of termination. Lapham v. Walgreen Co., 2023 WL 8609244 (11th Cir. 2023). Doris Lapham, an employee of Walgreens for almost ten years, sought leave under FMLA so that…
Failure of Loss Causation Does Not Negate Standing in § 10(b) Securities Fraud Action
The Eleventh Circuit recently held that Article III standing is not negated by a failure to state a claim on loss causation grounds. Carpenters Pension Fund of Ill. v. MiMedx Grp., Inc., 73 F.4th 1220 (11th Cir. 2023). Carpenters, the lead plaintiff in this consolidated securities class action, purchased and sold stock in MiMedx, a…
Plaintiff Has Standing to Assert Agency-Based TILA Claim Against Home-Improvement Financing Company
A plaintiff had Article III standing to bring a Truth in Lending Act (“TILA”) claim against a home improvement financer, based on a theory that a heating and air conditioning contractor company acted as agent for the financer. Walters v. Fast AC, Ltd. Liab. Co., 60 F.4th 642 (11th Cir. 2023) Gary Walters, a 70-year-old…
No Right to Interlocutory Appeal of Order Compelling Insurance Appraisal
A divided Eleventh Circuit panel held that an order compelling an appraisal under an insurance policy provision and staying the litigation pending the appraisal’s outcome is not appealable of right. Positano Place at Naples I Condo Ass’n, Inc. v. Empire Indemnity Insurance Co., 2023 WL 3730876 (11th Cir. May 31, 2023)…
No Safe Harbor in Florida If Financing Statement Misnames the Debtor
As we reported here, the Eleventh Circuit recently certified to the Florida Supreme Court a series of questions about the consequences under Florida law of a misnamed debtor in a UCC-1 financing statement. Florida law provides that a financing statement is “seriously misleading” if it does not include the debtor’s correct name, but provides a…
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)….