Eversheds Sutherland 11th Circuit Business Blog
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CASH FROM CORN: PLAINTIFF INJURED AT CORN HARVESTING FACILITY ADVANCES TO TRIAL

The Eleventh Circuit reversed the district court’s grant of summary judgment to the employer of a forklift driver who injured a truck driver picking up a shipment of corn in Newcomb v. Spring Creek Cooler Inc., 2019 WL 2364498 (11th Cir. June 5, 2019). Because the plaintiff picking up a load of corn at the defendant’s facility was responsible for the count and condition of the load, he stood on the loading dock near the trailer so that he could take the corn’s temperature as it was being loaded. Over the course of an hour, the harvester’s employee drove the forklift to transfer corn pallets...
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Eleventh Circuit Takes the Middle of the Road in Evaluating a Foreign Tribunal’s “Receptivity” to Judicial Assistance from U.S. Courts

In Department of Caldas v. Diageo PLC, 2019 WL 2333910 (11th Cir. June 3, 2019), the Eleventh Circuit held that a district court evaluating a foreign court’s receptivity to judicial assistance from a U.S. Court in the context of an application for discovery under 28 U.S.C. § 1782 need not apply a rigid burden of proof.  Section 1782 permits, under certain circumstances, discovery in the United States for use in aid of a foreign proceeding.  In 2016, four Colombian Departments—the Department of Caldas, the Department of Cundinamarca, the Department of Valle del Cauca, and the Department of...
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Monkey See, Monkey Do: Eleventh Circuit Affirms Decision that Defendant’s Gorilla Logo Infringed Plaintiff’s Trademark But Vacates Award of Defendant’s Profits

In PlayNation Play Systems, Inc. v. Velex Corp., 2019 WL 2180589 (11th Cir. May 21, 2019), the Eleventh Circuit considered whether the district court erred in determining that the defendant infringed the plaintiff’s trademark and in awarding damages in the form of the defendant’s profits and cancellation of the defendant’s trademark. Plaintiff sold children’s outdoor play equipment, and defendant sold doorway pull-up bars. Both parties had registered trademarks that depicted gorillas and used the word “Gorilla.” To determine whether the defendant’s mark was likely to cause consumer confusion...
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Ex-Wife Who Was Fraudulently Transferred Millions Of Dollars Can’t Get Relief From Paying Her Ex-Husband’s Creditors, But She Doesn’t Have To Pay Punitive Damages Awarded Against Him

The Eleventh Circuit published a fraudulent-transfer decision in Alliant Tax Credit 31, Inc. v. Murphy, 2019 WL 2121297 (11th Cir. May 15, 2019). With appeals from both sides, the court tediously worked its way through numerous issues on appeal. Most of these involved state law questions, but the court in an opinion by Judge Tjoflat shed some light on mootness and assessing diversity jurisdiction in complicated cases. The defendant husband had transferred millions of dollars to his wife in a divorce settlement, making him judgment proof when other creditors sued him for debts he incurred on...
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“Once-Upon-A-Time” Injury Insufficient to Establish Article III Standing to Seek Declaratory and Injunctive Relief

The Eleventh Circuit has dismissed for lack of standing a trucking company’s suit for declaratory and injunctive relief against the Federal Motor Carrier Safety Administration (“FMCSA”). Flat Creek Trans., LLC v. Federal Motor Carrier Safety Admin., 2019 WL 2049770 (May 9, 2019). Flat Creek Transportation claimed that FMCSA had unfairly targeted the company for compliance reviews, which reviews could result in a “Conditional” or “Unsatisfactory” safety rating. Flat Creek alleged that in 2016, its regulatory consultant “received surreptitious reports from confidential informant(s)” that FMCSA...
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Eleventh Circuit Avoids Controversial Interpretative Question on S Corporation Taxation

In Meruelo v. Commissioner, 2019 WL 1986618 (11th Cir. May 6, 2019), the Eleventh Circuit was tasked with reviewing a controversial Tax Court decision regarding the basis created by a subchapter S corporation’s indebtedness to its shareholders. Meruelo v. Commissioner, T.C. Memo. 2018-16. In Judge William Pryor’s opinion, the court determined the case on its facts, never addressing the Tax Court’s decision that the common law “actual economic outlay” standard applied despite recent Treasury Regulations intended to override the doctrine. Meruelo was a shareholder in a real estate development...
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Party Seeking to Vacate International Arbitration Award Must Assert Ground Enumerated in Convention, Court Reaffirms

In Inversiones y Procesadora Tropical INPROTSA, S.A. v. Del Monte International GmbH, 2019 WL 1768911 (11th Cir. Apr. 23, 2019), the Eleventh Circuit affirmed the district court’s order that denied INPROTSA’s petition to vacate an international arbitration award and confirmed that award.  Concluding that INPROTSA was required to assert a valid defense under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“the Convention”), the court reaffirmed its holding in Industrial Risk Insurers v. M.A.N. Gutehoffnungshütte GmbH, 141 F.3d 1434, 1446 (11th Cir. 1998), and...
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Municipal Fair Housing Act Suit vs. Banks Is Again Green-Lighted

Capping off a busy week, the Eleventh Circuit took a second crack at whether a municipality can bring an action under the Fair Housing Act against banks to recover damages allegedly attributable to racially discriminatory lending practices. In the prior round, the court held that the City of Miami had alleged standing and causation sufficiently to survive a motion to dismiss. But the Supreme Court granted review and scaled back that decision, holding that although standing was adequately alleged, causation was not, because more than foreseeability was required to demonstrate proximate cause....
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Ponzi Scheme Victims Prevail over SEC Receiver on Due Process Grounds

In SEC v. Torchia, 2019 WL 1911823 (11th Cir. Apr. 30, 2019), the Eleventh Circuit held in favor of investors victimized by a Ponzi scheme, concluding that the investors were permitted to appeal the district court’s interlocutory orders regarding receivership proceedings and that they had been denied a meaningful day in court. The appeal arose from the SEC’s case against James Torchia charging that he orchestrated a Ponzi scheme. As part of Torchia’s alleged scheme, investors purchased life settlement policies. The district court froze the assets of one the entities used by Torchia to...
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Dollars from Donuts: Court Applies Georgia Civil Rule on Attorneys’ Fees

A plaintiff whose vehicle was struck by a Krispy Kreme driver appealed a $330,000 verdict in her favor and obtained a reversal, and a chance to win an even bigger verdict, in Showan v. Pressdee, 2019 WL 1891785 (11th Cir. Apr. 29, 2019). At issue primarily was a once fairly obscure provision of the Georgia Civil Practice Act, added in “tort reform” legislation enacted in 2005. The statute, O. C. G. A. § 9-11-68(e), provides as follows: Upon motion by the prevailing party at the time that the verdict or judgment is rendered, the moving party may request that the finder of fact...
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Eleventh Circuit Affirms Judgment for Employer in Paralegal’s FLSA Overtime Action

The Eleventh Circuit clarified the standards for relief under Rule 59 of the Federal Rules of Civil Procedure in Jenkins v. Anton, 2019 WL 1894415 (11th Cir. Apr. 29, 2019). After a paralegal sued her employer for overtime wages under the Fair Labor Standards Act and lost at a bench trial, she was denied relief under Rules 59 and 60. On appeal, she argued that the denials were abuses of discretion, that the district court misapplied the legal standard in finding she had not worked overtime, and that the district judge should have sua sponte recused himself. In an opinion by Judge Tjoflat and...
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Eleventh Circuit Holds Forum Non Conveniens Requires Consideration of Both Private and Public Interest Factors

The Eleventh Circuit held this week that district courts must consider both private and public interest factors when contemplating dismissal for forum non conveniens, a doctrine relevant when “a foreign forum is better suited to adjudicate the dispute.” Fresh Results, LLC v. ASF Holland, B.V., 2019 WL 1758863 (11th Cir. Apr. 22, 2019). Private factors are those pertaining to the litigants, for instance, the relative ease of access to sources of proof. Public factors concern the interests of the two potential fora, including the administrative difficulties associated with court congestion....
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Supreme Court Grants Review of Eleventh Circuit Case, Among Others, to Decide Title VII’s Application to LGBT Discrimination

The Supreme Court today granted certiorari in a number of cases considering whether Title VII prohibits discrimination against LGBT employees, including a case decided by the Eleventh Circuit, Bostock v. Clayton County, Georgia, 723 F. App’x 964 (May 10, 2018). In Bostock, a panel of Judges Tjoflat, Wilson, and Newsom affirmed, in an unpublished per curiam opinion, the dismissal of the plaintiff’s Title VII claims, relying on circuit precedent—most recently Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017), cert. denied, 138 S. Ct. 557 (2017)—holding that discrimination...
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Class-Action Plaintiff Lacks Standing to Challenge Policy Interpretation After Exhaustion of Personal Insurance Benefits

Citing a lack of standing, the Eleventh Circuit threw out an insurance class action that had been pending for several years in A&M Gerber Chiropractic LLC v. GEICO General Insurance Co., 2019 WL 1746869 (11th Cir. Apr. 19, 2019), leaving unsettled an “important issue” related to personal-injury-protection (PIP) benefits under Florida’s Motor Vehicle No-Fault Law. The named plaintiff, Gerber, purported to represent a class of healthcare providers that had been assigned PIP benefits under an “80/20 policy” subject to varying limits on reimbursement for beneficiaries with or without an...
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