Eversheds Sutherland 11th Circuit Business Blog
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Treasury Department Conservation Easement Regulation Invalidated

In an important development in the ongoing litigation over taxation of conservation easements, Hewitt v. Commissioner, 2021 U.S. App. LEXIS 38555 (11th Cir. Dec. 29, 2021), invalidated a U.S. Treasury Department regulation issued in 1986 for failure to comply with the Administrative Procedure Act.  The panel reversed a United States Tax Court’s decision, and remanded the case for further proceedings in accordance with that ruling.  The facts of the case center on a 2012 conservation easement donation made by the Hewitts.  This conservation easement was created over property...
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Denial of Motion in Limine Without Prejudice Requires Renewal of Objection at Trial

Yates v. Pinellas Hematology & Oncology, P.A., 2021 US. App. LEXIS 38556 (11th Cir. Dec. 29, 2021), involved claims that the defendant medical provider violated the False Claims Act by materially altering some of its submissions to Medicare. After a jury found the defendant liable and awarded damages and penalties in excess of $1.1 million, the defendant appealed. The Eleventh Circuit affirmed, finding sufficient evidence to support the verdict and rejecting the defendant’s claim that the jury’s award violated the Eighth Amendment’s prohibition on excessive fines. The Eleventh Circuit...
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Court Affirms Summary Judgment in Employer’s Favor on ERISA Claims Arising from Discontinuation of Life Insurance

In Klaas v. Allstate Insurance Co., 2021 U.S. App. LEXIS 38473 (11th Cir. Dec. 28, 2021), the Eleventh Circuit affirmed summary judgment in the employer’s favor on ERISA claims stemming from the employer’s discontinuation of retirees’ life insurance benefits. Until 2013, Allstate provided eligible Allstate employees with life insurance that continued after the employee’s retirement. The benefit was described in written communications distributed in the 1980s as “paid up” and/or “no cost” insurance. Beginning in 1990, Allstate included a reservation of rights in the relevant summary plan...
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Nancy Gbana Abudu Nominated to Fill Georgia Seat on Court

On December 23, 2021, President Biden nominated Nancy Gbana Abudu to replace Judge Beverly Martin on the Eleventh Circuit. The nominee is currently Deputy Legal Director and Director for Strategic Litigation at the Southern Poverty Law Center. Previously, she served as Legal Director for the American Civil Liberties Union of Florida and Senior Staff Counsel at the American Civil Liberties Union Voting Rights Project. She served as a staff attorney on the court from 2002–2004 and began her career with a two-year stint at Skadden Arps after graduating from Tulane University School of Law in...
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Court Rejects Creditors’ Due Process Challenge to Release of Bankrupt Debtor’s Affiliates

In Jackson v. Le Centre on Fourth, LLC (In re Le Centre on Fourth, LLC), 2021 U.S. App. LEXIS 33845 (11th Cir. Nov. 15, 2021), the Eleventh Circuit rejected creditors’ due process challenge to the release afforded to the debtor’s affiliates in a confirmed Chapter 11 plan. The creditors were plaintiffs in a tort suit filed after Willie Jackson was struck and injured by a vehicle driven by a hotel valet driver. Jackson and his wife sued the owner of the hotel property, Le Centre on Fourth, LLC, and several of its affiliates. Before the bankruptcy court confirmed Le Centre’s Chapter 11 plan, Le...
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Dismissal of Complaint Against Universal Life Insurer Affirmed Under Georgia Law

The Eleventh Circuit affirmed the district court’s order in the defendant insurer’s favor, dismissing the complaint and rejecting a claim that the plaintiff’s universal life policy was ambiguous and thus had to be construed against the insurer, in Anderson v. Wilco Life Insurance Co., 2021 U.S. App. LEXIS 33846 (11th Cir. Nov. 15, 2021). Vanessa Anderson brought a putative class action against Wilco, alleging that the insurer had breached her policy by raising the monthly cost of insurance. The contract included several provisions relevant to the claim. The first was a “Policy Data Page”...
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Strike While the Arbitration Award Is Hot: Three-Month Window to File Motion to Vacate Does Not Prevent Earlier Confirmation

The Federal Arbitration Act provides for motions to confirm (9 U.S.C. § 9) or to vacate or modify (9 U.S.C. §§ 10, 11) an arbitration award, but the motions are not all subject to the same deadline. A motion to confirm may be filed within a year after the award is made, whereas the window for filing a motion to vacate or modify is only three months. (Compare id. § 9, with § 12.) But what happens when a motion to confirm is filed early, before the three months to file a motion to vacate has run? The Eleventh Circuit confronted that question, as a matter of first impression, in McLaurin v....
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A Debtor by Any Other Name? Court Certifies Question to Florida Supreme Court

Florida law provides that a UCC-1 financing statement is “seriously misleading” if it does not include the debtor’s correct name, unless “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 notwithstanding the misnomer. But how much of a search is required? The Eleventh Circuit certified that question to Florida’s Supreme Court in 1944 Beach Boulevard, LLC v. Live Oak Banking Co. (In re NRP Lease Holdings, LLC), 2021 U.S. App. LEXIS 36637 (11th Cir. Dec. 10, 2021). The...
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Court Affirms Order Unsealing “Unguarded Emails”

The Eleventh Circuit reiterated the importance of access to judicial proceedings—including, in the case at hand, “unguarded emails expressing personal opinions,” in Callahan v. United Network for Organ Sharing, 2021 U.S. App. LEXIS 34201 (11th Cir. Nov. 17, 2021). The underlying dispute arose from a revised organ donation policy approved by the defendant United Network for Organ Sharing (“UNOS”), which contracts with the federal Department of Health and Human Services to oversee nationwide coordination of organ transplants. A group of hospitals and patients sued UNOS, challenging the new...
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Dual Jobs and Dueling Opinions: Divided Panel Reverses Summary Judgment in Employer’s Favor in FLSA Case

A divided panel of the Eleventh Circuit reversed summary judgment for the employer on an employee’s Fair Labor Standards Act (“FLSA”) claims in Rafferty v. Denny’s, Inc., 13 F.4th 1166 (11th Cir. 2021). Lindsay Rafferty, who had been a Denny’s server, claimed that the restaurant violated the FLSA in paying her sub-minimum wage for time she spent doing non-tip-producing work. The district court granted the defendant’s motion for summary judgment, but the Eleventh Circuit reversed as to the non-tipped labor claim. All three panel members agreed that the district court should not have given...
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FDCPA Standing Case To Be Reheard En Banc

The full court will rehear Hunstein v. Preferred Collection & Mgmt. Svcs., Inc., in which a panel of the court determined that a consumer had standing to challenge under the FDCPA a debt collector’s provision of information to a third-party mail service. You can read our prior post on the case here.
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Settlement Release Negotiations and Actions of Third-Party Claimants Are Both Relevant in Bad Faith Actions

In Pelaez v. Government Employees Insurance Co., 2021 U.S. App. LEXIS 28312 (11th Cir. Sept. 20, 2021), the Eleventh Circuit upheld summary judgment for GEICO in a Florida bad faith case. Merely offering an overbroad release to a third-party claimant was insufficient to establish bad faith in the totality of the circumstances, which included GEICO’s repeated invitations to the claimant’s lawyer to edit the release’s language and diligent efforts to settle all covered claims. Pelaez arose from an automobile accident between John Pelaez and Michael Conlon, Jr. Conlon, who was insured as an...
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“European Wax Center” Trademark Dispute Clarifies “Confusingly Similar” Test Under the ACPA

A divided Eleventh Circuit panel affirmed a district court’s order granting summary judgment in favor of the defendant in a trademark dispute involving the Anti-Cybersquatting Consumer Protection Act (“ACPA”), Boigris v. EWC P&T, LLC, 2021 U.S. App. LEXIS 23399 (11th Cir. Aug. 6, 2021).  The case further clarifies the test for whether marks are “confusingly similar” under the ACPA, but also highlights difficulties in its application. EWC P&T, LLC (“EWC”) runs the nationwide beauty brand European Wax Center and owns a trademark registration for the mark “European Wax Center.” ...
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Full Court Nixes Appeal of Antitrust Immunity Ruling

Sitting en banc, the Eleventh Circuit unanimously held in SmileDirectClub, LLC v. Battle, 2021 U.S. App. LEXIS 21393 (11th Cir. July 20, 2021), that an interlocutory appeal may not be taken under the collateral order doctrine from the denial of the state-action antitrust immunity conferred by Parker v. Brown, 317 U.S. 341 (1943).  The case involved an action brought against members of the Georgia Board of Dentistry by SmileDirectClub, which offers steeply discounted orthodontic treatments. A key part of its services consisted of digital scans of patients’ teeth done by a technician who is...
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