11th Cir.: Arb Clickwraps Valid in Fla.

The 100 year-old Federal Arbitration Act (FAA) requires courts to enforce arbitration agreements according to their terms. But arbitration is a matter of contract, and the FAA does not allow a court to compel arbitration unless it is satisfied that the parties agreed to arbitrate. If the existence of the agreement is not genuinely disputed, the court must compel arbitration.These principles apply equally to so-called “clickwrap” agreements, in which users assent to terms by clicking a button near a disclosure referencing those terms. Under Florida law, the central question is whether the parties mutually assented to be bound. In the Eleventh Circuit's recent ruling, Lamonaco v. Experian Inform. Sols., Inc., 2025 WL 1831283 (11th Cir. July 3, 2025), because Experian submitted competent and unrebutted evidence of an agreement to arbitrate, the federal district court for the Middle District of Florida erred in denying its motion to compel arbitration. Relying heavily on Bazemore v. Jefferson Capital Systems, LLC, 837 F3d. 1325 (11th Cir. 2016), appellee argued that a declaration was insufficient to prove that she had agreed to arbitrate her claims. She also claimed that Experian had by its litigation conduct waived its right to insist on arbitration. The district court denied the motion to compel arbitration, finding that the declaration submitted in support of the motion offered only conclusory assertions and rested on business records not attached to the declaration. The district court also held that Experian had waived its right to insist on arbitration which it then appealed. The Eleventh Circuit reversed, holding that the district court erred on both issues. Because the arbitration agreement delegated to the arbitrator “all disputes over the interpretation, applicability, or enforceability of the arbitration agreement,” and an amendment to the agreement stated specifically that the delegation included questions of waiver, whether Experian waived its arbitration right was for the arbitrator to decide. See more here-- https://tinyurl.com/2u45se7k and https://media.ca11.uscourts.gov/opinions/pub/files/202411270.pdf

New MDFL Local Rules Take Effect 2/1/21

After careful deliberation and based on the Lawyer Advisory Committee's report and the public comments, the Board of Judges recently approved revisions to the Middle District of Florida's Local Rules. The revised Local Rules become effective February 1, 2021. Stated goals for this revision are to: modernize and simplify; accommodate changes in national and local practice; eliminate overlap with federal rules and statutes; eliminate references to specific federal rules and statutes; address re-occurring complaints and issues; and accord with best practices. In regard to mediation, Chapter Four of the new rules specifies that:  To refer an action or claim to mediation, the judge must enter an order that: (a) designates the mediator or directs the parties to select a mediator and to notify the judge of the selection;(b ) establishes a mediation deadline; (c) requires a lawyer to confirm a mediation date agreeable to the mediator and the parties and to notify the judge of the date; (d) requires the attendance of lead counsel, the parties or a party’s surrogate satisfactory to the mediator, and any necessary insurance carrier representative;(e) notifies the parties that unexcused absence or departure from mediation is sanctionable; (f) requires the mediator to report within seven days after mediation the result of the mediation and whether all required persons attended; and (g) directs that the substance of the mediation is confidential and that no party, lawyer, or other participant is bound by, may record, or without the judge’s approval may disclose any event, including any statement confirming or denying a fact — except settlement — that occurs during the mediation. See more here- https://bit.ly/2YctX4u

Determining Arbitrability In Middle District Florida

In a recent decision on a Motion to Compel Arbitration and Stay Proceedings here in the federal Middle District of Florida, Senior Judge John Steele found that while arbitrability is generally a question reserved for the trial court, an arbitrator may interpret the scope of the arbitration agreement if the parties agree and provide for such delegation "clearly and unmistakably" within the agreement. Authorities for this finding included Terminix Int'l Co. v. Palmer Ranch Ltd. P'ship, 432 F.3d 1327, 1332 (11th Cir. 2005) and Norfolk S. Ry. Co. v. Fla. E. Coast Ry., No. 3:13-cv-576-J-34JRK, 2014 WL 757942 (M.D. Fla. Feb. 26, 2014). For this holding, Judge Steele also relied on prior case law from the Supreme Court, as well as the neighboring Southern District:

"[T]he question `who has the primary power to decide arbitrability' turns upon what the parties agreed about that matter." First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943 (1995). See also Shea v. BBVA Compass Bancshares, Inc., No. 1:12-cv-23324-KMM, 2013 WL 869526 (S.D. Fla. Mar. 7, 2013) (citing Terminix Int'l Co., 432 F.3d at 1332) ("[W]hen parties explicitly incorporate rules that empower an arbitrator to decide issues of arbitrability, the incorporation serves as clear and unmistakable evidence of the parties' intent to delegate such issues to the arbitrator").

Here, the court found delegation provisions clearly and unmistakably delegated the determination of arbitrability to the arbitrator. Pursuant to the delegation clauses contained within the arbitration provisions in the instant case, the court returned the determination of whether or not a Telephone Consumer Protection (TCPA) claim is subject to the arbitration agreement to the arbitrator. Plaintiffs agreed to Defendant's request to stay the action pending the determination by the arbitrator, while reserving their right to continue to proceed in court if the arbitrator rules that their TCPA cause of action is not subject to the arbitration agreement. Harrington v. Regions Bank, No. 2:15-cv-522-Ftm-29MRM (M.D. Fla. Jan. 29, 2016) See opinion here-- bit.ly/1SInxD8

Guess Who’s Coming To Mediation - Next Thursday 2/19 at Noon!

Register for our free Upchurch Watson White & Max CLE webinar: "Guess Who’s Coming To Mediation" February 19. 2015 at noon. UWWM has applied for 1.0 hour General Credit (50 min) CLE from The Florida Bar. Program Speakers include distinguished UWWM mediators: Michelle Jernigan, Lawrence Kolin, and Dominic Brandy. At this unique online seminar, designed to increase or maintain the attorney’s professional competence and skills as a lawyer, you will be exposed to Florida rules under the topic of attendance and authority at mediation. Effective speakers in the areas of mediation certificates of authority and local rules, and use of technology for attendance will engage the audience and inspire conversation and questions on the related topics. The seminar is geared toward litigation practitioners whose clients utilize recognized processes in Florida’s courts to resolve cases, as well as mediators and arbitrators who may be eligible for CME. Michelle Jernigan will serve as our Moderator and review recent state rule changes for certifying attendance under Rule 1.720, FRCP. This rule redefines party attendance/authority and significantly, requires that the parties file a “certification of authority,” 10 days prior to appearing at a mediation conference, identifying the person or persons who will be attending the mediation conference as a party representative or as an insurance carrier representative, and confirming that those persons have the authority required by the amended rule. Lawrence Kolin will continue the discussion of appellate attendance rule, Rule 9.720, FRAP and local rules for court annexed mediation in the U.S. District Courts for the MDFL and NDFL and business court. The new language in Florida Rule of Appellate Procedure 9.720 was originally suggested by Kolin and designed to mirror what has been in effect for mediation of trial court level cases since 2011. Mediated settlement conferences pursuant to this rule are meant to be conducted when the participants actually engaged in the settlement negotiations have full authority to settle the case without further consultation. Local court rules for the Middle and Northern Districts of Florida will also be covered. Finally, Dominic Brandy will outline of new rule in U.S. District Court for SDFL and requirement for court approval, if variations are required. Unless excused in writing by the presiding Judge, all parties and required claims professionals (e.g., insurance adjusters) shall be physically present at the SDFL mediation conference (i.e., in person if the party is a natural person or by personal attendance of a corporate representative if the party is an entity) with full authority to negotiate a settlement. The mediator shall report non-attendance to the Court. Failure to comply with the attendance or settlement authority requirements may subject a party to sanctions by the Court. A Question & Answer session will follow the webinar presentation. Information on panelists at http://www.uww-adr.com/webinar/guess-whos-coming-to-mediation and link to your registration here--https://attendee.gotowebinar.com/register/628144760073036802 so sign-up now!

50th Anniversary of the Middle District of Florida

Tonight in Orlando, The Historical Society of the United States District Court for the Middle District of Florida held a 50th Anniversary Dinner sponsored by members of the Middle District Bar and the Historical Society through the Bench Bar Fund. Senior U.S. District Judge George C. Young was in attendance and said it was his first event outing in many years. Geographically the Middle District of Florida (FLMD) stretches over 350 miles from the Georgia border on the northeast to south of Naples on Florida’s southwest coast. Three of the six largest metropolitan statistical areas (MSAs) in the state, namely, Tampa, Jacksonville and Orlando are within the district. The Clerk’s office headquarters is centrally located in Orlando with additional divisional offices in Tampa, Jacksonville, Fort Myers and Ocala. Demographically over 10 million people, more than 57% of the state’s population, reside within the district. Fifteen of the twenty most densely populated counties in the state are in the Middle District. In all, thirty-five of Florida’s sixty-seven counties make up the Middle District. Florida’s population has increased by about three million each decade since 1970 and now stands at approximately 19 million permanent residents, a 171% increase over the 1970 estimate of 6.8 million. Additionally this state, and the Middle District in particular, is a primary tourist and convention destination adding millions of visitors to those numbers. The Middle District of Florida remains one of the busiest federal district courts in the nation. I am proud to be a member of the MDFL bar and federal certified mediator roster. Read more at: flmd.uscourts.gov and see my alternate site: http://mdfl.tumblr.com/