Eversheds Sutherland 11th Circuit Business Blog
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Defendant Must Prove that Copied Portion of Copyrighted Work is Unprotectable

In Compulife Software Inc. v. Newman, 2020 WL 2549505 (11th Cir. May 20, 2020), the Eleventh Circuit clarified that a plaintiff, having established that the defendant copied part of a copyrighted work, need not prove that the copied portion was legally protectable; the defendant must prove that it was not.  The court also reviewed the elements of a trade-secret claim under Florida law. The parties to the dispute provide insurance premium quotes electronically.  The plaintiff, Compulife, maintains premium information in its “Transformative Database,” which can’t be replicated without a...
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Tax Service’s Registered Trademark’s Suggestiveness Presented Jury Question

In Engineered Tax Services, Inc. v. Scarpello Consulting, Inc., 2020 WL 2478863 (11th Cir. May 14, 2020), the Eleventh Circuit reversed and remanded the district court’s grant of summary judgment for Scarpello Consulting in a trademark dispute over the distinctiveness of the service mark “Engineered Tax Services,” citing previous rulings on substantive trademark law and its  application when a defendant seeks summary judgment of invalidity. The decision elaborated on how to apply the imagination and third-party use tests for determining whether a given mark is suggestive rather than...
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Supreme Court Upholds Eleventh Circuit Copyright Decision on Legislative Materials

Shortly before the U.S. Supreme Court embarked on its six-day experiment hearing oral arguments by telephone, the Court affirmed the Eleventh Circuit’s judgment in Code Revision Commission v. Public.Resource.Org, Inc., 906 F.3d 1229 (11th Cir. 2018), aff’d sub nom. Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 1498 (2020)—a copyright case that we previously covered here and here. The question was whether Georgia’s “official” annotations to the state code were eligible for copyright protection even though they had been prepared as works for hire at the direction of a state legislative...
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Existence of a Golf Course Does Not Prevent Tax Deduction for Conservation Easement

In Champions Retreat Golf Founders, LLC v. Commissioner, 2020 WL 2462534 (11th Cir. May 13, 2020), the Eleventh Circuit was asked to review whether the grant of a conservation easement over a golf course was made “exclusively for conservation purposes”—a requirement to receive a charitable contribution deduction. In an opinion by visiting Judge Robert L. Hinkle of the Northern District of Florida, the court found in favor of the taxpayer, reasoning that “[w]ere it not for the presence of a golf course on part of this property,” the arguments made by the Internal Revenue Service “would be a...
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Would-Be TCPA Plaintiff Cannot Unilaterally Revoke Contractual Consent to be Called

The Eleventh Circuit has joined the Second in holding that consent to be called using an autodialer and/or prerecorded messages, given as part of a contract, cannot be unilaterally withdrawn.  Medley v. DISH Network, LLC, 2020 WL 2092594 (11th Cir. May 1, 2020). Linda Medley entered into a 24-month agreement with DISH Network to receive satellite television services for a monthly fee.  The agreement included an option to enroll in the “DISH Pause” program, which would temporarily suspend satellite services and add the suspended months to the end of the contract term.  As part of the...
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Eleventh Circuit Will Not Rehear City’s Fair Housing Act Claim

The Eleventh Circuit has denied a petition to rehear en banc City of Miami Gardens v. Wells Fargo & Co., 931 F.3d 1274 (11th Cir. 2019), which dismissed for lack of standing Fair Housing Act claims brought against Wells Fargo by the City of Miami Gardens.  City of Miami Gardens v. Wells Fargo & Co., 2020 WL 1983892 (11th Cir. Apr. 27, 2020). The city claimed it had standing to challenge Wells Fargo’s lending practices because the bank’s loans to African-American and Hispanic borrowers were more likely to go into default or foreclosure, thus affecting the city’s property tax base.  It...
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Court Refuses Stay of COVID-19 Abortion Injunction

COVID-19 is showing its across-the-board implications and triggering quick action from courts.  Though the high-profile abortion case of Robinson v. Attorney General, Alabama, 2020 WL 1952370 (11th Cir. Apr. 23, 2020), might not ordinarily be featured in this blog, the case represents the first round of COVID-19 cases to make its way up to the Eleventh Circuit and highlights the court’s alacrity in responding to issues tied to the crisis. After the Governor of Alabama postponed “all dental, medical, or surgical procedures” except for emergencies and those “necessary to avoid serious harm...
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Too Late Blues for Guitar Maker’s Copyright Ownership Claims

In Webster v. Dean Guitars, 2020 WL 1887783 (11th Cir. Apr. 16, 2020), the Eleventh Circuit affirmed the district court’s grant of summary judgment for a guitar manufacturer in a copyright dispute over the lightning storm graphic on “Dimebag” Darrell Abbott’s iconic guitar, known as “The Dean from Hell.”  The district court properly determined that the gravamen of the copyright infringement claim was a dispute over copyright ownership, and that Webster’s claims accrued as early as 2004 and as late as 2007, meaning that his 2017 suit was time-barred because it fell outside of the three-year...
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Undescribed “Beneficial Interest” in Property Insufficient to Confer Article III Standing to Contest Foreclosure

In Thakkar v. Bay Point Capital Partners, LP (In re Bay Circle Properties, LLC), 2020 WL 1696303 (11th Cir. Apr. 8, 2020), the Eleventh Circuit dismissed an appeal because the only appellant remaining after a settlement lacked Article III standing (and in any event failed to meet the “person aggrieved doctrine” standard for appealing a bankruptcy court order). The case originally featured two plaintiffs:  Mr. Thakkar and a company called DCT Systems Group, LLC.  DCT had declared bankruptcy and then entered into a settlement agreement, to which Thakkar was also a party, with its creditor...
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Supreme Court Postpones April Arguments

The Supreme Court has postponed its April argument session due to the COVID-19 pandemic. Having previously postponed the arguments scheduled for late March, the Court now has 20 cases that will have to be reset for argument. While not unprecedented, the Court has adjusted its schedule due to a public health crisis only three times in history: In 1918, oral arguments were postponed because of the Spanish Flu, and in 1793 and 1798, the Court shortened its calendar due to yellow fever outbreaks. The arguments put on hold include a trio of cases involving President Donald Trump’s financial and...
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Eleventh Circuit Resets Title VII Retaliation Claim Standard

Undaunted by COVID-19, the Eleventh Circuit pressed forward with its work in Monaghan v. Worldpay US, Inc., 2020 WL 1608155 (11th Cir. Apr. 2, 2020), which reversed the district court’s grant of summary judgment for an employer, sending the plaintiff-employee’s Title VII race retaliation claim to a jury. The district court had both applied the wrong standard and failed to limit its analysis to the claims the plaintiff pled in her complaint. While the plaintiff and defendant each argued about retaliation claims under the Age Discrimination in Employment Act (“ADEA”) and 42 U.S.C. § 1981 in...
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Eleventh Circuit Affirms Individual’s $41 Million Verdict Against Tobacco Companies

In yet another opinion applying the Florida Supreme Court’s landmark decision in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006), the Eleventh Circuit affirmed denial of motions for judgment as a matter of law against R.J. Reynolds Tobacco Company and Philip Morris USA Inc. in a published opinion upholding multi-million dollar jury verdicts against both defendants. Kerrivan v. R.J. Reynolds Tobacco Co., 2020 WL 1429574 (11th Cir. Mar. 24, 2020). Plaintiff Kerrivan became an addicted serial smoker at an early age, suffered increasingly serious medical diagnoses as a result, and made...
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Oral Arguments to Be Live-Streamed

The Eleventh Circuit’s General Order No. 45 authorizes panels to hear argument by audio or teleconference, rather than in person, in light of the COVID-19 pandemic and resulting safety precautions. The arguments will be live-streamed to the public, at no charge, to the extent feasible (and not in cases that would not otherwise be argued publicly, including those involving national security).
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Foundry Employees’ Action is a “Mass Action” Subject to Removal Under the Class Action Fairness Act

The Eleventh Circuit has clarified the scope of the “local event exception” to the federal-court jurisdiction over “mass actions” conferred by the Class Action Fairness Act (“CAFA”), holding that claims by former foundry employees against manufacturers and distributors of products used at the foundry are not within the exception.  Spencer v. Specialty Foundry Prods. Inc., 2020 WL 1270276 (11th Cir. Mar. 17, 2020). The plaintiffs in the case are 230 former workers at a now-closed Alabama foundry.  They worked in different jobs at different times, but all claim that they were harmed by...
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