Dylan C. Black

Dylan Black focuses his practice on complex civil litigation in state and federal courts, with particular emphasis on professional liability, class action, state and federal securities fraud cases, and insurance coverage litigation. Dylan’s experience in professional liability litigation includes the defense of public accounting and auditing firms, outside directors, audit committee members, and lawyers in a variety of cases. View articles by Dylan

Firm/Organization: Bradley Arant Boult Cummings LLP

Blogs: Declassified, Financial Services Perspectives

Latest Articles

Declassified

One Spam Text Does Not Confer Standing in the Eleventh Circuit

By J. Thomas Richie & Dylan C. Black

September 9, 2019

One unwanted text message does not confer standing in federal court in the Eleventh Circuit — so holds the court in Salcedo v. Hanna. The case confirms that one text message is qualitatively, and jurisprudentially, different from the kind of intrusions that give rise to an Article III injury-in-fact. The plaintiff in Salcedo claimed that he received a single unsolicited text message for a discount on legal services from his former lawyer. He brought…

Declassified

Ask and You Shall Be Deemed to Have Consented to Receive: The Eleventh Circuit Affirms TCPA Fax Summary Judgment

By J. Thomas Richie & Dylan C. Black

August 29, 2019

Consent is the most powerful weapon companies have against TCPA liability, and a recent Eleventh Circuit opinion illustrates how. In Gorss Motels, Inc. v. Safemark Systems, L.P., the Eleventh Circuit affirmed summary judgment where the plaintiffs consented to receive solicitations in their franchise agreements. The background: Gorss and another company, E&G, operate hotels as franchisees of the Wyndham Hotel Group. In the franchise agreement, they agreed that Wyndham and its affiliates could offer assistance…

Declassified

“Any” Doesn’t Mean “All”: In Home Depot, SCOTUS Says “Any Defendant” Doesn’t Include Third-party Defendants Facing Class Claims

By Dylan C. Black, Zachary A. Madonia, Michael R. Pennington & Nicholas A. Danella

June 3, 2019

To the surprise of many observers (including us), the Supreme Court held last week in Home Depot USA Inc. v. George Jackson that a third-party defendant could not remove class action claims – under either the general removal statute, 28 U.S.C. § 1441(a), or the Class Action Fairness Act (CAFA), 28 U.S.C. § 1453(b). Setting aside § 1441 (for the moment), we will remind the reader at the outset that CAFA broadly states…

Declassified

Lamps Plus v. Varela: It’s Lights Out for Class Arbitration under Ambiguous Arb Agreements

By Dylan C. Black, Michael R. Pennington, John E. Goodman & J. Thomas Richie

April 26, 2019

We have written before about the utility of class waivers in arbitration agreements as a defense to classwide arbitration. As we previously discussed, the U.S. Supreme Court decided in Stolt-Nielson S.A. v. AnimalFeeds Int’l Corp. that arbitration agreements that were silent on the question of class arbitration could not support the arbitration of class claims. Now, as we predicted, the court has taken the rule of Stolt-Nielson a step further, holding in Lamps Plus, …

Declassified

Think before Hitting “Send”: Supreme Court Upholds Liability under Securities Laws for Forwarding Someone Else’s False Statement

By Jeffrey R. Blackwood & Dylan C. Black

March 28, 2019

Be careful before you forward that email. That’s the lesson from the recent Supreme Court decision in Lorenzo v. Securities and Exchange Commission, in which the court held that that the director of investment banking for a broker-dealer was liable for participating in a scheme to defraud investors when he forwarded two emails prepared by his boss. The contents of the emails reported that the investment target had “confirmed assets” of $10 million, a statement Mr.…

Financial Services Perspectives

Hold the Phone: Ninth Circuit Ruling Means Your Smartphone Is an Auto-Dialer

By Dylan C. Black

September 27, 2018

Can your phone store telephone numbers and dial them? If so, it’s an “automatic telephone dialing system” under the Telephone Consumer Protection Act (TCPA), said the Ninth Circuit Court of Appeals last week. The opinion in Marks v. Crunch San Diego creates a circuit split on the issue and highlights the difficulty courts have in applying statutory language from a pre-smartphone world to the technological capacity of the devices that half of you are using…

Declassified

The Impact of Disparate State Laws on Class Certification for Settlement Purposes: Ninth Circuit to Review Hyundai and Kia Fuel Economy Decision en Banc

By Michael R. Pennington, Dylan C. Black & Josh Dhyani

August 8, 2018

The Ninth Circuit has agreed to review a panel decision from the court which rejected a settlement in multidistrict litigation over the fuel efficiency of Hyundai Motor America Inc. and Kia Motors Corp. vehicles. The case and rehearing raise the issue of what weight, if any, is given to disparate state laws when reviewing proposed settlement agreements in a multidistrict case and to what extent courts and class counsel bear the burden of addressing that…

Declassified

Call Me, Maybe? The D.C. Circuit Says Your Smartphone Is Not an Autodialer

By Dylan C. Black

March 22, 2018

The nation breathed a little easier last Friday when the D.C. Circuit ruled that Americans can call or text from their smartphones without violating federal law. That’s because the D.C. Circuit has set aside the Federal Communications Commission’s definition of what constitutes an “autodialer,” a definition that, before last Friday, included the ubiquitous device half of you are using right now to read these words. And since we use these devices to keep in touch,…

Financial Services Perspectives

SEC Wants the Truth and Nothing but the Truth in Advertising

By Jeffrey R. Blackwood & Dylan C. Black

September 19, 2017

Tell the truth, the whole truth, and nothing but the truth: that’s the message to registered investment advisors from the Office of Compliance Inspections and Examinations (OCIE) in a recent risk alert about the SEC’s Advertising Rule (Rule 206(4)-1). The rule prohibits advisors from making untrue statements of material fact and from otherwise including misleading material in advertisements. The rule covers a broad array of communications, including communications that offer “(1) any analysis, report, or…

Financial Services Perspectives

Supreme Court Decision Provides Significant Protection to Securities Industry, Limits SEC Enforcement

By Dylan C. Black & Jeffrey R. Blackwood

June 7, 2017

In a decision previewed in an earlier post, the United States Supreme Court ruled unanimously in Kokesh v. Securities and Exchange Commission that the five-year statute of limitations in 28 U.S.C. section 2462 applies to SEC enforcement actions seeking the remedy of disgorgement. Resolving a Circuit split, the Supreme Court ruled that disgorgement is a “penalty” meant to deter wrongful conduct, and therefore falls squarely within section 2462’s limitation of any “action, suit or proceeding…

Dylan C. Black

One Spam Text Does Not Confer Standing in the Eleventh Circuit

Ask and You Shall Be Deemed to Have Consented to Receive: The Eleventh Circuit Affirms TCPA Fax Summary Judgment

“Any” Doesn’t Mean “All”: In Home Depot, SCOTUS Says “Any Defendant” Doesn’t Include Third-party Defendants Facing Class Claims

Lamps Plus v. Varela: It’s Lights Out for Class Arbitration under Ambiguous Arb Agreements

Think before Hitting “Send”: Supreme Court Upholds Liability under Securities Laws for Forwarding Someone Else’s False Statement

Hold the Phone: Ninth Circuit Ruling Means Your Smartphone Is an Auto-Dialer

The Impact of Disparate State Laws on Class Certification for Settlement Purposes: Ninth Circuit to Review Hyundai and Kia Fuel Economy Decision en Banc

Call Me, Maybe? The D.C. Circuit Says Your Smartphone Is Not an Autodialer

SEC Wants the Truth and Nothing but the Truth in Advertising

Supreme Court Decision Provides Significant Protection to Securities Industry, Limits SEC Enforcement

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