Eversheds Sutherland 11th Circuit Business Blog
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Eleventh Circuit Mourns Loss of Judge Phyllis Kravitch

The American legal community lost one of its pioneers yesterday, when the Honorable Phyllis Kravitch died after 38 years as a U.S. circuit judge. Judge Kravitch was born in 1920 in Savannah, Georgia, and she received an LL.B. from the University of Pennsylvania Law School in 1943. She returned to practice law in Savannah, where she became the first woman president of the Savannah Bar Association and later the first woman to be elected as a superior-court judge in the State of Georgia. President Jimmy Carter appointed Judge Kravitch to the U.S. Court of Appeals for the Fifth Circuit in...
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NO TCPA LIABILITY FOR FAXES THAT DO NOT MARKET A PRODUCT

“Unsolicited advertisements” prohibited by the Telephone Consumer Protection Act (TCPA) do not include faxes that merely facilitate the purchase of a product but do not promote the sale of products, the Eleventh Circuit confirmed in Florence Endocrine Clinic, PLLC v. Arriva Medical, LLC, 2017 WL 2415966 (11th Cir. June 5, 2017). The defendant was a supplier of medical equipment directly to consumers. When a consumer who purchased a product from the defendant sought reimbursement from his insurer, the consumer’s doctor had to communicate directly with the defendant. To facilitate this...
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Preclusive Effect of Engle Findings Against Tobacco Cases Does Not Violate Due Process

In a 7-3 decision, the Eleventh Circuit sitting en banc declined to overrule Walker v. R.J. Reynolds Tobacco Co., 734 F.3d 1278 (11th Cir. 2013), and held (again) that a jury’s negligence and strict liability findings in the Engle class action against tobacco companies may be given preclusive effect in follow-on individual cases without violating the Due Process Clause. Graham v. R. J. Reynolds Tobacco Co., 2017 WL 2176488 (11th Cir. May 18, 2017).  The court also held that the jury’s findings were not preempted by federal law. The majority opinion, written by Judge William Pryor, began by...
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ELEVENTH CIRCUIT WEIGHS IN ON CIRCUIT SPLIT DEFINING COPYRIGHT REGISTRATION

Registration of a copyright is a precondition to a suit for copyright infringement. The Eleventh Circuit joined the minority of circuits to have addressed whether registration occurs when an owner files an application to register the copyright or when the Register of Copyrights registers the copyright in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 2017 WL 2191243 (11th Cir. May 18, 2017). The Ninth, Fifth, and Eight Circuits have chosen the more lenient “application” approach, which requires a copyright owner to plead that he has filed the deposit, application, and required...
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Improper Claim-Splitting Warrants Dismissal

In a case of first impression, the Eleventh Circuit has held that a plaintiff’s second case against a defendant, arising out of the same nucleus of operative facts, was properly dismissed as the product of improper claim-splitting. Vanover v. NCO Fin. Servs., Inc., 2017 WL 2129557 (11th Cir. May 17, 2017). In 2014, Karen Vanover sued NCO Financial Systems in federal court, claiming that NCO violated the Telephone Consumer Protection Act (“TCPA”) in its attempts to collect medical debts from her. Her complaint referred to alleged telephone calls between April 2013 and April 2014.  NCO moved...
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When Choosing a Policy with a “Prior Acts” Exclusion, Buyer Beware

Bank directors ended up with no insurance coverage in Zucker v. U.S. Specialty Insurance Co., 2017 WL 2115414 (11th Cir. May 16, 2017).  The Eleventh Circuit, applying Florida law, applied a “prior acts” exclusion from D&O coverage to allegedly fraudulent transfers which were made after the policy’s inception date but which arose out of bank officers’ alleged misconduct before the policy inception date. The transfers in question were made in January 2009, when BankUnited, a holding company, transferred two tax refunds, totaling $46 million, to its wholly-owned subsidiary. A year earlier,...
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NO ERISA CLAIMS FOR MULTI-EMPLOYER PENSION FUND CONTRIBUTOR

Responding to a pension fund’s dire financial condition, its board passed an amendment requiring employers withdrawing from the fund to pay a portion of the fund’s deficiency. One contributing employer, WestRock, then sought a declaratory judgment that the amendment violated ERISA, arguing on appeal that it had a claim under 29 U.S.C. §§ 1132(a)(10) or 1451(a). Whether these provisions granted a statutory cause of action was the issue of first impression in WestRock RKT Co., v. Pace Industry Union-Management Pension Fund, 2017 WL 2111114 (11th Cir. May 16, 2017). Subsection B of...
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ADA and RA Protect Hospital Patients’ Ability to Exchange Medically Relevant Information

In Silva v. Baptist Health South Florida, Inc., 2017 WL 1830158 (11th Cir. May 8, 2017), the Eleventh Circuit clarified the standard for liability for ADA and RA effective-communication claims against hospitals. The court held that “the relevant inquiry is whether the hospitals’ failure to offer an appropriate auxiliary aid impaired the patient’s ability to exchange medically relevant information with hospital staff.” The plaintiffs brought an action against three hospitals under Title III of the Americans with Disabilities Act (“ADA”), and Section 504 of the Rehabilitation Act of 1973...
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Deference on All Fronts to Government Settling Qui Tam Action

Deference runs throughout a decision published last week, United States v. Everglades College, Inc., 2017 WL 1658478 (11th Cir. May 3, 2017), where the court issued four holdings in connection with the government’s settlement of a False Claims Act qui tam action relating to federal financial aid funds under Title IV of the Higher Education Act of 1965. The court actually consolidated two appeals—the first relating to the intervention and settlement of the qui tam action and the second to the reduction of the relators’ attorneys’ fees award based on the amount awarded and the court’s refusal...
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To Bar, or Not to Bar: That Is the Certified Question

How long after winning a judgment in the federal court can a Florida plaintiff conduct post-judgment collection efforts? That is the question at the heart of Salinas v. Ramsey, 2017 WL 1593469 (11th Cir. May 2, 2017). The issue has been decided differently in cases before the Florida District Courts of Appeal, and so Tuesday, the Eleventh Circuit certified a question to the Florida Supreme Court, asking that the Florida high court clarify the application of Florida’s statute of limitations to this situation. The case centers on collection efforts relating to a violation of the Fair Labor...
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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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