By Ian Ross
(Originally featured by Law360 at: https://www.law360.com/articles/1223069)
Last month, the Washington Supreme Court held in Federal Home Loan Bank of Seattle v. Credit Suisse Securities USA LLC that a plaintiff suing for securities fraud under the Securities Act of Washington does not need to prove reliance.
Although the court acknowledged that its decision did not align with decisions in federal courts or other states, it found that the plain language of Washington’s blue sky law does not require an investor to show that he or she relied on a misstatement when buying the security. Instead, the court held that a plaintiff seeking rescission for a misstatement made in connection with the purchase of a security only needs to show that the misstatement was material.
Two years ago, an appellate court in Florida reached the opposite conclusion with respect to Florida’s blue sky law, the Florida Securities and Investor Protection Act. In J.P. Morgan Securities LLC v. Geveran Investments Ltd., the appellate court found that a plaintiff seeking rescission under FSIPA was required to show not only that a misstatement was material, but also that the plaintiff actually relied on the misstatement when purchasing a security.
The appellate court found that its interpretation of the statute’s plain language was supported by a 1989 Florida Supreme Court decision holding that FSIPA’s anti-fraud provisions, because they provide for rescission as a remedy, should be analogized to a common law rescission claim.
Florida common law rescission claims, the Florida Supreme Court had found, require proof of reliance. Thus, the Geveran court held that rescission under FSIPA likewise requires an investor to show that it relied on a material misrepresentation.
These two different outcomes underscore that the scope of seller liability under many state blue sky laws remains uncertain. This uncertainty arises principally from the fact that although many states have adopted the Uniform Securities Act, some have also enacted remedial provisions that appear to track provisions from the federal securities regulations, specifically, Rule 10b-5.
(Originally featured by Law360 at: https://www.law360.com/articles/1199426/)
A recent opinion from the U.S. Court of Appeals for the Eleventh Circuit could transform statutory consumer protection class actions in the court’s jurisdiction. In Salcedo v. Hanna, the Eleventh Circuit considered an interlocutory appeal of a putative class action brought under the Telephone Consumer Protection Act and held that receipt of a single unsolicited text message sent in violation of the TCPA does not, in and of itself, create the requisite Article III standing for a plaintiff to bring a case in federal court.
In so holding, the Eleventh Circuit made clear that a court’s Article III standing inquiry in the TCPA context must focus “on the qualitative nature of the injury” to the individual plaintiff. For this reason, some practitioners have hailed Salcedo as the death knell of TCPA class action litigation in the Eleventh Circuit, but that remains an open question because the Eleventh Circuit has not yet decided the larger issue of whether unnamed putative class members are required to establish Article III standing.
(Originally featured by Daily Business Review at
Uncertainty in the law is sometimes unavoidable. But sophisticated parties want predictability, and when the enforceability of commonly used provisions in commercial contracts is uncertain, practitioners need to know. The U.S. Court of Appeals for the Eleventh Circuit recently offered a useful reminder to practitioners that the enforceability of broad exculpatory clauses under Florida law remains an open question, and prodded the Florida Supreme Court for an answer.
In Pier 1 Cruise Experts v. Revelex, 929 F.3d 1334, 1337 (11th Cir. 2019), the Eleventh Circuit certified a question to the Florida Supreme Court seeking guidance on whether an “unusually broad exculpatory clause” could be enforced. The parties in Revelex had negotiated an exculpatory clause releasing liability for “damages regardless of kind or type (whether in contract, tort (including negligence), or otherwise),” and providing that Revelex’s total cumulative liability could not exceed $100. The Eleventh Circuit wants to know whether language that broad is enforceable and, if not, whether the presence of such a broad exculpatory clause renders the entire contract illusory or simply means that some but not all claims are barred. As the court observed, “Florida law arguably supports any of three different answers to the question, but none of the decisions that have been cited to us (or that we have found ourselves) is quite on point.”
(Originally featured by Law360 at https://www.law360.com/appellate/articles/1151133/tcpa-questions-loom-as-11th-circ-considers-3-cases)
Federal district courts in Florida in recent years have become well-acquainted with the Telephone Consumer Protection Act, 47 U.S.C. § 227. In 2018, for the fifth consecutive year, more than 3,000 TCPA lawsuits were filed in federal court, and Florida remained a hotbed for TCPA litigation.
A number of federal judges in Florida now use specific standing orders for TCPA class actions, and increasingly in the Southern District of Florida, these cases are fast-tracked and set for trial within eight to ten months of filing. But courts deciding these cases are still seeking clarity from the Federal Communications Commission and appellate courts on how the TCPA and, specifically, its definition of the term “automatic telephone dialing system,” should be interpreted. This much-needed clarity may be on the way.
By Ian Ross
(Originally featured by Daily Business Review at https://www.law.com/dailybusinessreview/2019/05/30/florida-appellate-court-limits-obligations-of-third-parties-to-preserve-evidence/)
Most litigators are familiar with this call from a client: “I just opened a letter from an attorney instructing my company to preserve all documents and follow a bunch of instructions about what to do with our electronic data and email. I’ve never heard of the case the attorney mentions. It doesn’t involve us. Do I have to follow all of these instructions?”
In a recent decision, Florida’s Third District Court of Appeals may have provided an answer. On April 26, the appellate court held that Florida law does not “impose a duty on nonparties to litigation to preserve evidence based solely on the foreseeability of litigation,” see Shamrock-Shamrock v. Remark, Case No. 5D18-1987, 2019 WL 1868175, — So. 3d — (Fla. 3d DCA Apr. 26, 2019). In the underlying action, Shamrock-Shamrock, Inc. (Shamrock), a property owner, had filed a complaint against the city of Daytona Beach relating to a zoning dispute. In the complaint, Shamrock alleged that Tracey Remark, a third party, had participated in hearings and written a letter relevant to the zoning dispute.
By Ian Ross
(Originally featured by The Florida Bar Journal at https://www.floridabar.org/the-florida-bar-journal/reframing-the-question-why-florida-courts-should-enforce-nonreliance-clauses/)
“If you tell the truth, you don’t have to remember anything.” — Mark Twain
A nonreliance clause is an agreement by a contracting party that it is not relying on any representations other than those set forth in the contract. Stated differently, a nonreliance clause means that a party has acted on its own, free of influence or interference from its counterparty. Although nonreliance clauses are increasingly used by parties in complex commercial contracts and securities transactions, these clauses are not always enforced by courts, and parties are often cautioned by their attorneys that these clauses may not prevent a subsequent lawsuit in an investment gone wrong.
Consider this example: A promising Florida company is raising money. A wealthy investor flies in. He tours the company’s facilities and has lunch with management. A young vice president tells the investor that the company recently developed computer software that should boost its revenue over time. Days later, after reviewing the company’s financial statements, the investor decides to invest.
As the attorneys negotiate a subscription agreement, the company’s attorneys insist on a comprehensive nonreliance provision. Under the provision, the investor agrees that, except for the specific representations made in the agreement, it is not relying on any other representation made by the company. The investor releases the company from any claim relating to any oral representations not embodied in the agreement. The subscription agreement does not mention the computer software.
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