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Eleventh Circuit Rejects Constitutional Challenge to Brookhaven Ordinance Regulating “Sexually Oriented Businesses”

In 2013, the City of Brookhaven enacted its code to “regulate sexually oriented businesses in order to promote the health, safety, and general welfare of the citizens of the City, and to establish reasonable and uniform regulations to prevent the deleterious secondary effects of sexually oriented businesses within the City.”  The new code did not ban establishments that “regularly feature[] sexual devices,” but did prohibit any such establishment from operating within 100 feet of another sexually oriented business or within 300 feet of a residential district, place of worship, park, or...
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Defendant Sails to Victory in Trade Secret Case

In Yellowfin Yachts, Inc. v. Barker Boatworks, LLC, 2018 WL 3734344 (11th Cir. Aug. 7, 2018), the Eleventh Circuit upheld the dismissal of trade-secret claims related to the manufacture and sale of fishing boats.  Yellowfin Yachts is a manufacturer of high-end fishing boats, allegedly known in the marketplace for the “swept sheer line” of their boats. Yellowfin hired Kevin Barker in 2006 as a vice president of sales. Although Yellowfin presented Barker with a proposed employment agreement including confidentiality clauses, Barker never executed the agreement.  Barker left Yellowfin in...
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A Default in Proceeding with Arbitration Does Not Necessarily Authorize a Default Judgment in Federal Court

In Hernandez v. Acosta Tractors Inc., 2018 WL 3761126 (11th Cir. Aug. 8, 2018), the Eleventh Circuit held that a party’s default in proceeding with arbitration after requesting it did not necessarily warrant entry of default judgment against that party in federal court. Julio Hernandez sued his former employer, Acosta Tractors, and two of its officers under the Fair Labor Standards Act.  The employer moved pursuant to the parties’ arbitration agreement to compel arbitration of the claims.  The district court granted the motion, and arbitration proceedings began. A year later, the employer...
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Foreign Companies Can Acquire U.S. Trademark Rights without Direct Sales to Consumers

Direct Niche, LLC v. Via Varejo S/A, 2018 WL 3687868 (11th Cir. Aug. 3, 2018), emphasizes that foreign companies can acquire trademark and service mark rights in the United States even without selling products directly to consumers domestically.  Instead, contracts with third parties and publication of the mark are sufficient to confer rights.  The Eleventh Circuit recently reaffirmed that “use in commerce” is the standard to determine ownership rights for a mark. Via Varejo is a Brazilian corporation and the parent company of the Casas Bahia chain of retail stores.  Casas Bahia is a...
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Failure to Comply with Rule 9(b)’s Particularity Requirement Dooms Claims under the False Claims Act

Payments by the AIDS Healthcare Foundation to an employee responsible for referring HIV-positive patients to healthcare services offered by the Foundation fall within the employee exemption to the Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b)(3)(B), according to the Eleventh Circuit’s decision in Carrel v. AIDS Healthcare Foundation, Inc., 2018 WL 3734278 (11th Cir. Aug. 7, 2018).  The court also confirmed the applicability of Fed. R. Civ. P. 9(b)’s particularity requirement to qui tam actions under the False Claims Act. The plaintiffs were three former employees of the Foundation.  One had...
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Keep the Change: Eleventh Circuit Rejects Cab Companies’ Constitutional Challenge to Rideshare Ordinance

The Eleventh Circuit has affirmed the dismissal of taxi companies’ claims that a Miami-Dade County ordinance permitting rideshare services to participate in the for-hire transportation market constituted a taking of the cab companies’ property and/or a denial to them of equal protection.  Checker Cab Operators, Inc. v. Miami-Dade County, 2018 WL 3721227 (11th Cir. Aug. 6, 2018). Before 2016, provision of for-hire transportation in Miami-Dade County required a county-issued “medallion,” the use and alienability of which was heavily regulated.  The county generally limited the number of...
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London or New York? Beware Inconsistent Dispute Resolution Provisions

Internaves de Mexico s.a. de C.V. v. Andromeda Steamship Corp., 2018 WL 3636427 (11th Cir. Aug. 1, 2018), demonstrates the perils (and costs) of inconsistency in an agreement’s dispute resolution provisions.  Internaves and Andromeda were parties to a “charter party” agreement for the transportation of an electric transformer from Brazil to Mexico.  The agreement, completed using a form with fillable blanks in Part I and pre-printed language (some struck through) in Part II, included the following text at Box 25 in Part I:  .  Thus Box 25 specified “London arbitration, English Law.”  But in...
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Survey of 2017 Eleventh Circuit Decisions Published

The Mercer Law Review recently published its annual survey of noteworthy Eleventh Circuit decisions. The Class Actions article, authored by our own Tom Byrne and Stacey Mohr, analyzes the court’s 2017 decisions on CAFA jurisdiction, the impact of arbitration agreements on class actions, the preclusive effect of prior actions, class action settlements, and class certification disputes. This is the thirteenth year we have authored the Class Actions review for Mercer’s annual survey.  Previous articles are available through Hein Online for the years 2016, 2015, 2014, 2012, 2011,...
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Britt Grant Confirmed as Eleventh Circuit Judge

Georgia Supreme Court Justice Britt Grant was confirmed by the U.S. Senate yesterday afternoon to fill the Eleventh Circuit judgeship created when Judge Julie Carnes elected to take senior status.  The vote was 52-46.  Justice Grant, 40, is not the youngest person to be confirmed for an Eleventh Circuit seat since the court was constituted in 1981.  That honor belongs to Senior Judge J.L. Edmondson.  The investiture of Judge Grant will bring the court to its full statutory complement of 12 active judges, six appointed by Democratic presidents and six appointed by Republicans. Posted by Tom...
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Procedural Lapses Short-Circuit Attack on Statute Aimed at Incentivizing Nuclear Plant Construction

The abandonment of the V.C. Summer nuclear project in South Carolina and the questionable status of Plant Vogtle in Georgia have garnered headlines in recent months and raised questions about the validity of state statutes authorizing utility companies to preemptively charge customers for the design and construction of new nuclear facilities using rate hikes. In William B. Newton v. Duke Energy Fla., LLC, 2018 WL 3370809 (11th Cir. July 11, 2018), the Eleventh Circuit considered a constitutional challenge to such a statute – the Florida Renewable Energy Technologies and Energy Efficient Act...
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Plaintiff Judicially Estopped from Pursuing Claims Not Disclosed in Bankruptcy

In Weakley v. Eagle Logistics, 2018 WL 3188663 (11th Cir. June 29, 2018), the Eleventh Circuit considered what “facts and circumstances” surrounding a plaintiff’s failure to disclose a pending lawsuit in bankruptcy proceedings will allow the lawsuit to be dismissed on judicial-estoppel grounds. The plaintiff, Timothy Weakley, had filed two separate lawsuits against a number of defendants, arising from the termination of a contract he had to haul freight for one of the defendants and the repossession of a tractor trailer he had leased from another. After filing the lawsuits, Mr. Weakley...
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Bank Accurately Reported Mortgage as “Past Due” and “Delinquent” Despite Borrower’s Compliance with Forbearance Program

When a mortgage lender offers a borrower a forbearance plan—agreeing to accept lowered monthly payments in exchange for refraining from foreclosure—is it accurate for the lender to report that the borrower’s account is “past due” and “delinquent” even when the borrower complies with the plan? “Yes” was the Eleventh Circuit’s answer in Felts v. Wells Fargo Bank, N.A., 2018 WL 3130674 (11th Cir. June 27, 2018), which affirmed the district court’s grant of summary judgment in favor of Wells Fargo on claims brought under the Fair Credit Reporting Act (FCRA). The plaintiff, Christina Felts,...
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Eleventh Circuit Invalidates Liquidated Damages Provision As Impermissible Penalty

In Autauga Quality Cotton Association v. Crosby, 2018 WL 3097948 (June 25, 2018), the Eleventh Circuit invalidated a liquidated damages provision, holding it to be an impermissible penalty under Alabama law. Appellant Autauga Quality Cotton Association is a not-for-profit cotton-marketing association based in Central Alabama whose mission is to provide price stability to both farmers and consumers by pooling the cotton grown by its more than 1,000 members and then marketing it for sale.  The appellees are individual members of the Crosby family who own a cotton farm in Alabama and who were...
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Eleventh Circuit Invalidates FTC Cease and Desist Order

In LabMD, Inc. v. Federal Trade Commission, 2018 WL 3056794 (11th Cir. June 6, 2018), the Eleventh Circuit vacated an FTC cease and desist order, finding that the order was unenforceable because it lacked the required specificity that would enable the order to be enforced by a court. LabMD is a now-defunct medical laboratory. Given the nature of its work, LabMD was subject to data-security regulations issued under HIPPAA.  LabMD employed a data-security program in an effort to comply with those regulations.  Sometime in 2005, contrary to LabMD policy, a LabMB billing manager downloaded...
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