Eversheds Sutherland 11th Circuit Business Blog
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Dismissal of VPPA Class Action Against CNN Affirmed, But Spokeo Standing Upheld

The Eleventh Circuit affirmed the dismissal of a putative class action against CNN in a case concerning the CNN app that the plaintiff downloaded to his iPhone. Perry v. Cable News Network, Inc., 2017 WL 1505064 (11th Cir. Apr. 27, 2017). The plaintiff Perry alleged that CNN violated the Video Privacy Protection Act (“VPPA”) by tracking his view of news articles and videos and collecting a record of his activity that was disclosed to third parties. CNN argued in response that the plaintiff did not have standing under the Supreme Court’s Spokeo decision; that the plaintiff was not a...
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For FMLA Retaliation Claims, It’s the End-of-Leave Date that Counts

The Eleventh Circuit has held that the end of FMLA leave, not the beginning, is the relevant date for determining “close temporal proximity” between protected activity and an adverse employment action when evaluating an FMLA retaliation claim. Jones v. Gulf Coast Health Care of Delaware, LLC, 2017 WL 1396165 (11th Cir. Apr. 19, 2017). Rodney Jones’s job as Activities Director at a long-term care facility included both desk work and more active work, such as assisting with wheelchairs, loading vans, and setting up for events. In 2014, Jones had surgery for a torn rotator cuff, and was granted...
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Asset Buyer Not Bound by Lanham Act Injunction Without Proof of Actual Notice

The buyer of most of the operating assets of a company subject to a Lanham Act injunction was held by the Eleventh Circuit not to be subject to the injunction, even though the seller’s CEO and owner became president and part-owner of the buyer as part of the sale. ADT LLC v. NorthStar Alarm Services, LLC, 2017 WL 1364978 (11th Cir. Apr. 14, 2017).  A year after the sale, the plaintiff, ADT, sought to enforce the injunction against the buyer.  But in an opinion authored by Judge Bill Pryor, the court held that ADT failed to prove that the buyer had the “actual notice” of the injunction...
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Plaintiff in Sexual-Orientation Discrimination Case Files En Banc Petition, Highlighted by Newly Created Circuit Split

A high-profile Seventh Circuit decision and a circuit split may increase the likelihood of the Eleventh Circuit granting rehearing en banc in Evans v. Georgia Regional Hospital, a decision we covered here last month.  A divided panel in Evans held that—unlike discrimination based on gender non-conformity—discrimination based on sexual orientation is not prohibited by Title VII.  As expected (and urged by the dissent) the plaintiff in Evans has filed a petition for rehearing en banc. The Evans holding was based primarily on the majority’s view that it was bound by former Fifth Circuit...
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Dual Citizenship Does Not Create CAFA Jurisdiction

Two insurance class actions will remain in state court after the Eleventh Circuit’s decision in Life of the South Insurance Co. v. Carzell, 2017 WL 1174083 (11th Cir. Mar. 29, 2017) (Marcus, J.). The court held that federal diversity jurisdiction does not exist under the Class Action Fairness Act (CAFA) if all defendants and plaintiff class members are citizens of a single state—regardless of whether corporate defendants are deemed “citizens” of multiple states or whether some plaintiffs have dual citizenship in foreign countries. After a false start and voluntary dismissal, the plaintiffs...
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Eleventh Circuit Begins Posting Oral Arguments to Public Website

After years of quiet reluctance, the Eleventh Circuit has finally begun posting oral-argument recordings on its website. The court thus joins the U.S. Supreme Court and the majority of U.S. Courts of Appeals that already make recordings of oral arguments publicly available online. The court’s change in policy toward oral-argument recordings is reflected in amendments to the Eleventh Circuit Rules and Internal Operating Procedures that took effect today. Additional background on the new policy is available through Law360 here. Posted by Lee...
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When Confirming Diversity of Citizenship, Trust—but Verify

In Purchasing Power, LLC v. Bluestem Brands, Inc., 2017 WL 1046103 (11th Cir. Mar. 20, 2017), the Eleventh Circuit reminded litigants and their counsel that it is critical to confirm the citizenship of all relevant corporate entities in determining the existence of diversity jurisdiction, but reversed the district judge’s order imposing “inherent power” sanctions on a party which had conducted an insufficient investigation. Purchasing Power, LLC sued Bluestem Brands, Inc. in state court. Bluestem, a citizen of Minnesota and Delaware, removed on the basis of the district court’s diversity...
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The First Amendment Rises to the Top: State Cannot Prohibit Dairy from Describing its Skim Milk as “Skim Milk.”

The Creamery is a dairy farm in rural Florida which sells all-natural dairy items, including skim milk produced in the usual way: cream rises and is skimmed off, and the result is skim milk.  The Creamery does not replace the (fat soluble) Vitamin A lost in skimming.  But Florida law prohibits the sale of milk which is not “Grade A”—which requires, among other things, that Vitamin A depleted by the skimming process be replaced.  Accordingly, Florida told the Creamery it had to either stop selling its non-Grade A skim milk or obtain an imitation milk permit.  The Creamery didn’t want to call...
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The Second Time’s a Charm: Jury Deliberations Resume After Partial Delivery of Inconsistent Verdict

Wright Medical Technology, Inc., appealed from a $2,100,000 judgment entered against it following a jury trial, arguing that the jury had been improperly instructed as a matter of Utah law and also that the district judge should not have ordered the jury to continue deliberations after the deputy clerk began to read what turned out to be an inconsistent verdict. The Eleventh Circuit, in an opinion written by District Judge Harvey Bartle III visiting from the Eastern District of Pennsylvania and joined by Judge Charles Wilson and Judge Jill Pryor, rejected both arguments. Christiansen v....
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Discrimination Based on Gender Non-Conformity Is Prohibited by Title VII; Discrimination Based on Sexual Orientation Is Not

In Evans v. Georgia Regional Hospital, 2017 WL 943925 (Mar. 10, 2017), the Eleventh Circuit considered an issue that has been the subject of much judicial and academic debate in recent years:  How does Title VII’s prohibition on discrimination “because of . . . sex” apply to claims of LGBT discrimination?  Perhaps unsurprisingly, the court was sharply split on the answer, with each judge on the panel authoring a separate opinion.  The opinion for the court was authored by U.S. District Judge Jose E. Martinez, sitting by designation, with a concurrence by Judge William Pryor, who wrote...
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Unlawful and Non-Competitive Parallel Conduct is Still Insufficient to State a RICO Claim

The Eleventh Circuit relied on Twombly’s heightened pleading standard in affirming a dismissal for failure to state a RICO claim in Almanza v. United Airlines, 2017 WL 957191 (11th Cir. Mar. 13, 2017). The plaintiff Mexican nationals, representing a putative class, were charged a tourism tax by the defendant airlines as part of their airfare, purportedly required under Mexican law, even though the defendants allegedly knew that the plaintiffs were actually exempt from the law. Each of the defendant airlines was a member of the Mexican legal entity CANAERO, which gave them a means of...
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CAFA’s Local-Controversy Provision Can’t Trump Federal-Question Jurisdiction

The Eleventh Circuit reinstated a federal RICO case but approved the denial of a motion to remand it to state court under the Class Action Fairness Act (CAFA) in Blevins v. Aksut, No. 16-11585, 2017 WL 782288 (11th Cir. Mar. 1, 2017). The court’s opinion confirms that CAFA’s local-controversy provision, 28 U.S.C. § 1332(d)(4), does not strip federal courts of jurisdiction over supposedly local class actions that include claims under federal law. Blevins involved allegations that the defendants had violated the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961–1968,...
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Securities Private Offering Exemption Applies in SEC Enforcement Action

The Eleventh Circuit rejected the SEC’s narrow construction of registration exemptions in SEC v. Levin, 2017 WL 711018 (Feb. 23, 2017), reversing a grant of summary judgment to the defendant but still affirming a jury verdict for securities fraud on multiple counts.  The defendant, George Levin, invested his personal funds in a Ponzi scheme that operated by soliciting investors to purchase purported confidential settlement agreements supposedly reached in sexual harassment or whistleblower lawsuits. No such agreements existed, and the investors were paid with funds from other investors. ...
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Security Is Secure, Even When It’s in Receivership

In 2009, the SEC filed an action against Arthur Nadel and others following the collapse of a Ponzi scheme. The district court appointed a receiver to administer the defendants’ property and business affairs “and take whatever actions are necessary for the protection of the investors.”  The district court also established a bar date for creditors’ and investors’ proofs of claim. Wells Fargo had security interests in three of the properties placed in receivership, but filed a timely proof of claim only as to one of them. More than a year later, Wells Fargo filed a motion seeking a...
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