Full Court to Rehear Uninjured Class Member TCPA Standing Case
Posted on Mar 16, 2023
The en banc Eleventh Circuit announced on March 13 that it would rehear Drazen v. Pinto and vacated the panel opinion. As discussed in our post on the panel decision, the case addresses whether class members who lack Article III standing with respect to the claims asserted by the class are nonetheless permitted to receive benefits from a class settlement. The case also features a question the panel chose not to decide, which is whether a receipt of a single improper cell phone call is enough to confer standing under the Telephone Consumer Protection Act. The case is tentatively set to be...
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Court Rejects Three-Year Time Bar for Damages Awarded under the Copyright Act
Posted on Mar 10, 2023
In Nealy v. Warner Chappell Music, Inc., 2023 WL 2230267 (11th Cir. Feb. 27, 2023), the Eleventh Circuit rejected the application of a three-year “lookback” period for the purposes of awarding damages under the Copyright Act. In answering a certified question of law presented by the district court, the appellate panel declined to time-bar damages for acts of copyright infringement that occurred more than three years prior to the plaintiff’s filing suit. As background, it is important to understand the application of the statute of limitations to claims of copyright infringement. Under the...
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Prior-Precedent Rule Dictates Result in Condemnation Action
Posted on Mar 7, 2023
In Sabal Trail Transmission, LLC v. 18.27 Acres of Land, 59 F.4th 1158 (11th Cir. 2023), the court applied its prior-precedent rule and held that state rather than federal law provides the measure of compensation to be paid to a landowner upon a private party’s exercise of federal eminent-domain power under the federal Natural Gas Act. Sabal Trail is a natural-gas company eligible to exercise eminent domain power under either Florida law or federal law. In 2016, acting under federal eminent-domain authority, Sabal Trail condemned two tracts of land in Florida, owned by a father and son. The...
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FTC Has Power Under § 19 of the FTC Act to Freeze Assets and Impose Receivership for Violations of the Telemarketing Sales Rule
Posted on Feb 15, 2023
Even after the Supreme Court limited the power of the Federal Trade Commission to receive monetary relief under § 13(b) of the Federal Trade Commission Act, the FTC still has authority under § 19(b) of the FTC Act to freeze assets and impose a receivership, the Eleventh Circuit ruled in FTC v. Simple Health Plans LLC, 2023 U.S. App. LEXIS 2192 (11th Cir. Jan. 27, 2023). The FTC brought an enforcement action under § 5(a) of the FTC Act, which broadly prohibits unfair or deceptive acts or practices in or affecting commerce, against Steven J. Dorfman and six of his companies. The FTC also...
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Modified Chapter 11 Plan Required Re-Solicitation and Re-Voting
Posted on Jan 30, 2023
A modification of a Chapter 11 bankruptcy plan on the eve of the hearing on confirmation of that plan requires re-solicitation of votes and re-voting if the modification materially and adversely affects a class of claims or interests, i.e., equity holders, according to the Eleventh Circuit’s opinion in In re America-CV Station Group, Inc., 56 F.4th 1302 (11th Cir. Jan. 5, 2023). The court reversed the bankruptcy court’s order confirming the plan, which had been affirmed by the district court on the first level of appeal. The case arose from the Chapter 11 bankruptcies of Caribevision...
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What Is an Illegal Human Life Wagering Contract?
Posted on Jan 18, 2023
According to the Eleventh Circuit, that life insurance policy you took out on your own life with the intent to sell it to a stranger may not in fact be void as an illegal wagering contract. In Jackson National Life Insurance Co. v. Crum, 54 F.4th 1312 (11th Cir. 2022), the Eleventh Circuit adopted the Georgia Supreme Court’s answer to a certified question on this subject, reversing the district court’s ruling that a life insurance policy was void and unenforceable. Kelly Couch was HIV-positive with a short life expectancy when he acquired a life insurance policy from Jackson...
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Late-Stage Remand of State-Law Claims After Dismissal of Federal Claims Affirmed
Posted on Jan 3, 2023
Marida Silas brought state and federal claims, on behalf of her late husband, against the Sheriff of Broward County. The defendant removed the case to federal court, which dismissed the federal claims and set the remaining state-law claims for trial. Days before trial, the defendant moved to dismiss the remaining claims on the ground that the plaintiff had not been appointed as the personal representative of her husband’s estate. Without ruling on the motion to dismiss, and over the objection of both parties, the district court exercised its discretion under 28 U.S.C. § 1367(c) to remand the...
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Florida Prohibition on Proof of COVID Vaccination Upheld by Divided Court
Posted on Oct 20, 2022
A Florida statute which prohibits all businesses operating in the state from requiring customers to provide documentary proof that they are vaccinated against COVID-19 does not violate the Free Speech and Commerce Clauses of the Constitution, a sharply divided Eleventh Circuit panel held in Norwegian Cruise Line Holdings Ltd. v. State Surgeon General, 2022 U.S. App. LEXIS 27997 (11th Cir. Oct. 6, 2022). In 2021, the Florida Legislature enacted a statute, Florida Statute § 381.00316, which provides that “any business operating in [Florida] . . . may not require patrons or customers to provide...
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Full Court Will Consider Grounds for Vacatur of International Arbitration Awards
Posted on Oct 7, 2022
The court will rehear en banc Corporacion AIC, SA v. Hidroelectrica Santa Rita S.A., 2022 U.S. App. LEXIS 27855 (11th Cir. Oct. 5, 2022), concerning the grounds for vacatur of an arbitration award falling under the New York Convention. As we reported here, a panel of the court affirmed a denial of a motion for vacatur but invited the full court to revisit the issue. Posted by Valerie Sanders.
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Antitrust Claim Rejected: Parent Company Cannot “Conspire” with Majority-Owned and Controlled Subsidiary
Posted on Oct 6, 2022
A private-equity firm and its majority-owned subsidiary preserved a defense summary judgment on antitrust conspiracy and monopolization claims in OJ Commerce, LLC v. KidKraft, Inc., 34 F.4th 1232 (11th Cir. May 24, 2022). Building on the Supreme Court’s holding that a parent company cannot engage in unlawful “concerted activity” with a wholly owned subsidiary, Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 767 (1984), the Eleventh Circuit held that the same rule applies to parent companies and the subsidiaries that they control through simply majority ownership. As long as the...
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Foreign Parent Company Not Subject to Personal Jurisdiction Based Solely on Actions of Subsidiary, and Expert Testimony Properly Excluded as Unreliable in Products-Liability Case
Posted on Oct 5, 2022
In the absence of facts supporting piercing the corporate veil or rendering affiliated companies alter egos, the actions of a subsidiary alone cannot subject a foreign parent company to personal jurisdiction in Florida, the Eleventh Circuit recently confirmed. The court’s decision in Knepfle v. J-Tech Corp., 2022 U.S. App. LEXIS 25781 (11th Cir. Sept. 14, 2022), also reviewed the standard for admissibility of expert testimony, affirming the exclusion of the testimony at issue as unreliable. Knepfle involved products-liability claims brought by a woman who suffered a head injury during...
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No Safe Harbor in Florida If Financing Statement Misnames the Debtor
Posted on Oct 5, 2022
As we reported here, the Eleventh Circuit recently certified to the Florida Supreme Court a series of questions about the consequences under Florida law of a misnamed debtor in a UCC-1 financing statement. Florida law provides that a financing statement is “seriously misleading” if it does not include the debtor’s correct name, but provides a safe harbor where “a search of the records of the filing office under the debtor’s correct name, using the filing office’s standard search logic, if any, would disclose” the financing statement. The Eleventh Circuit was asked to apply these provisions...
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Certain Mortgage Communications Must Comply with Both the Truth in Lending Act and the Fair Debt Collection Practices Act
Posted on Oct 2, 2022
The Eleventh Circuit has held again that certain mortgage servicing communications required under the Truth in Lending Act (TILA) and sent to a borrower also can be subject to the Fair Debt Collection Practices Act (FDCPA). Lamirand v. Fay Servicing, LLC, 38 F.4th 976 (11th Cir. 2022). The court vacated an order dismissing the complaint filed by borrowers who received monthly mortgage statements containing payment terms that contradicted the terms of a prior settlement. Judge Britt Grant chronicled the plaintiffs’ history with their mortgage lender, Fay Servicing. After defaulting on...
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Sharing Information with Trusted Vendors Does Not Confer Article III Standing for FDCPA Claim
Posted on Sep 17, 2022
The en banc Eleventh Circuit has issued its third and presumably final opinion in the tortured history of Hunstein v. Preferred Collection & Management Services, Inc., 2022 U.S. App. LEXIS 25233 (11th Cir. Sept. 8, 2022). The court held that the plaintiff failed to allege facts sufficient to establish Article III standing to assert a claim under the Fair Debt Collection Practices Act (FDCPA). Writing for the majority, Judge Grant cited the Supreme Court’s holding in TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021), that “harm from a statutory violation ha[s] to be ‘real’ in order to...
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