Judgment by the Record: How the Eleventh Circuit Is Shaping Retail Litigation and Regulation

Authors

• Susan L. Shin, Hunton Andrews Kurth LLP
• Aubrianna L. Mierow, Hunton Andrews Kurth LLP

Abstract

The Eleventh Circuit’s 2025 term reinforced a disciplined, text-driven approach to statutory and contractual interpretation and a firm demand for proof: the court vacated an FCC rule that restricted consent beyond what the Telephone Consumer Protection Act (TCPA) provides. It rejected a constitutional challenge to adjudication by the Office of the Chief Administrative Hearing Officer (OCAHO) while emphasizing the Attorney General’s supervisory role. It required plaintiffs alleging deception through promotional content to identify the specific communication at issue. It denied standing for credit file inaccuracies absent dissemination or real-world effect. It interpreted standard limitation clauses to preserve direct damages under the Uniform Commercial Code (UCC) framework. It held that the right to compel arbitration depends on current compliance with administrative requirements at the time a dispute arises. The consistent, common approach is that authority comes from the terms of the statute or contract. Harm must be concrete and tied to identifiable conduct. For consumer-facing businesses, the operational consequence is to maintain verifiable records of consent, document marketing practices, align contractual risk allocation with actual exposure, track dissemination of consumer data, and maintain arbitration systems that meet current administrative conditions.

Recommended Citation

Susan L. Shin & Aubrianna L. Mierow, Judgment by the Record: How the Eleventh Circuit Is Shaping Retail Litigation and Regulation, 80 U. Mia. L. Rev. 1049 (2026).
Available at: https://repository.law.miami.edu/umlr/vol80/iss4/8