Eversheds Sutherland 11th Circuit Business Blog
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Florida Prohibition on Proof of COVID Vaccination Upheld by Divided Court

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

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

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

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

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

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

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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Tax Penalty May Be Communicated to Taxpayer Prior to Required Supervisory Approval

In Kroner v. Commissioner, 2022 U.S. App. LEXIS 25650 (11th Cir. Sept. 13, 2022), the court reversed a U.S. Tax Court decision to hold that the Internal Revenue Service (“IRS”) did not violate section 6751(b) of the Internal Revenue Code when it obtained supervisory approval prior to the assessment of a tax penalty, even though the penalty was communicated to the taxpayer prior to supervisory approval. Between 2005 and 2007, Kroner received nearly $25 million in wire transfers from a business partner, which he believed to be excludable from income as gifts for tax purposes.  He did not...
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No Class-Action Tolling for Chiquita Terrorism Plaintiffs

The court was presented with a set of exotic facts in Garcia v. Chiquita Brands International, 2022 U.S. App. LEXIS 25192 (11th Cir. Sept. 8, 2022), but applied two familiar principles of civil procedure to decide the relatively narrow issues on appeal. The decision was the court’s second in the controversy arising from Chiquita’s guilty plea to unlawfully funding a paramilitary terrorist group operating in Colombia over the course of a decade. A putative class action was filed against Chiquita in 2007 that included federal claims. Those claims, however, were dismissed by an Eleventh Circuit...
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Declaratory Judgment Did Not Extinguish Right to Demand Prejudgment Interest Under Georgia Law

In FDIC v. Certain Underwriters at Lloyd’s of London, 2022 U.S. App. LEXIS 23203 (11th Cir. Aug. 19, 2022), the Eleventh Circuit held that a demand for prejudgment interest made after entry of a declaratory judgment was timely under Georgia law. The FDIC, as receiver for Omni National Bank, sued some of Omni’s former officers and directors for negligence. Those cases settled, with the settlement agreements calling for the FDIC to seek to recover stipulated judgments against the defendants from an insurance policy issued to the bank by Lloyd’s Underwriters. The underwriters, in turn, sued the...
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Equitable Estoppel Unavailable to Require Reimbursement from Treasury of Taxes Paid Under Protest

In Affordable Bio Feedstock, Inc. v United States, 2022 U.S. App. LEXIS 20577 (11th Cir. July 26, 2022), the Eleventh Circuit held that the taxpayer was not eligible for reimbursement of protest payments made to the Internal Revenue Service (“IRS”) because “payments of money from the Federal Treasury are limited to those authorized by statute.” The sole issue before the court was “whether any court may order that funds be appropriated from the Federal Treasury based on equitable estoppel without specific authorization from Congress.” Affordable Bio Feedstock (“ABF”) was a waste-to-energy...
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Court Confirms That Same Personal-Jurisdiction Standards Apply Under Fifth and Fourteenth Amendments

In Herederos de Roberto Gomez Cabrera, LLC v. Teck Resources Ltd., 2022 U.S. App. LEXIS 22473 (11th Cir. Aug. 12, 2022), the Eleventh Circuit held that the “minimum contacts” analysis applied to determine the existence of personal jurisdiction under the Fourteenth Amendment also applies when jurisdiction is asserted under the Fifth Amendment. The case involved a claim by a Florida LLC that the defendant Canadian company, Teck Resources, violated the Helms-Burton Act by trafficking in property that had been confiscated by the Cuban government. Teck moved to dismiss for lack of personal...
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Court Adopts a Double Scienter Requirement for Establishing Violations of Section 1202(b) of the Digital Millennium Copyright Act

In Victor Elias Photography, LLC v. Ice Portal, Inc., 2022 U.S. App. LEXIS 22472 (11th Cir. Aug. 12, 2022), the Eleventh Circuit adopted a “double scienter requirement” for copyright infringement under 17 U.S.C. § 1202(b) of the Digital Millennium Copyright Act (“DMCA”). This standard requires a copyright owner to demonstrate that an alleged infringer had knowledge not only of its conduct, but also of the likelihood that the conduct would result in copyright infringement. A unanimous appellate panel affirmed a district court’s granting of summary judgment in favor of the defendant, finding...
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Arbitration Agreement’s Delegation Clause Must Be Enforced Even If Arbitration of Underlying Claims Prohibited by Statute

In Attix v. Carrington Mortgage Services, LLC, 35 F.4th 1284 (11th Cir. May 26, 2022), the Eleventh Circuit reversed a district court’s denial of a motion to compel arbitration and enforced the parties’ agreement to delegate to the arbitrator questions of arbitrability, including whether arbitration itself was precluded by the Dodd-Frank Act. The decision not only reinforces the continued importance of delegation provisions in arbitration agreements, it also is notable for its rejection of a “partial delegation” interpretation of the parties’ arbitration agreement. Attix involved claims...
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