In its second major Medicare Secondary Payer (“MSP”) Act decision in a month, the Eleventh Circuit held that an insurer’s contractual obligation, without a judgment or settlement, can provide the “demonstrated responsibility” necessary to allow a claim against the insurer for double damages under the Act. MSP Recovery, LLC v. Allstate Ins. Co., 2016 WL…
Author: Wendy Spiro
Eleventh Circuit Defers to National Park Service’s Wilderness Designation
The Eleventh Circuit has upheld a decision by the National Park Service (“NPS”) to designate certain federal lands in Florida as “wilderness.” Nat’l Parks Conservation Ass’n v. U.S. Dep’t of Interior, No. 14-15326 (11th Cir. Aug. 31, 2016). The NPS acquired approximately 112,400 acres of additional lands to add to the Big Cypress National Preserve…
Eleventh Circuit Allows Extraterritorial Discovery for Foreign and International Disputes
28 U.S.C. § 1782 provides federal-court assistance in gathering evidence for use in foreign tribunals, but how far does its reach extend? In an opinion published on August 23, 2016, Sergeeva v. Tripleton International, 2016 WL 4435616, the Eleventh Circuit addressed the use of Section 1782 to achieve discovery of documents outside U.S. territorial limits and possessed by…
“Binding” External Benefit Determinations Might Not Bind Courts Under ERISA
Does ERISA preempt rules that give “binding” effect to benefit determinations made by a plan’s external review panel? Not as long as those determinations don’t actually bind courts, the Eleventh Circuit held in Alexandra H. v. Oxford Health Insurance Inc. Freedom Access Plan, 2016 WL 4361936 (11th Cir. Aug. 16, 2016). The plaintiff in the…
The Eleventh Circuit Delves into the “Murky” Waters Surrounding the U.S. Virgin Islands
For many years, the IRS has been aggressively auditing taxpayers who have filed income tax returns with the U.S. Virgin Islands (USVI) Bureau of Internal Revenue (VIBIR), claiming a 90% tax credit under the USVI Economic Development Program (EDP). The IRS has long believed that individuals are falsely claiming to be “bona fide” USVI residents…
Paymaster Is Not a Joint Employer Under Title VII or the Equal Pay Act
Companies with complex corporate structures or contractor relationships frequently face the threat of joint-employer liability under federal employment law. Just this year, the U.S. Department of Labor’s Wage and Hour Division issued guidance expansively interpreting the joint-employer doctrine under the Fair Labor Standards Act (“FLSA”) and the Migrant and Seasonal Agricultural Worker Protection Act, with…
Eleventh Circuit Declines to Wade into Clean Water Rule
The Eleventh Circuit has declined to decide a case it held to be entirely duplicative of a challenge to the EPA’s and Army Corps of Engineers’ Clean Water Rule making its way through the Sixth Circuit. The plaintiffs in Georgia ex rel. Olens v. McCarthy, 2016 WL 4363130 (11th Cir. Aug. 16, 2016), filed a…
Ask Not for Whom the Securities Exchange Act’s Statute of Repose Tolls; It Doesn’t.
Is a statute of repose subject to tolling? Although its holding was limited to the applicability of American Pipe tolling, created by the commencement of a class action, to the five-year statute of repose under Section 20(a) of the Securities Exchange Act of 1934, the Eleventh Circuit discussed the issue in broad terms in its August 10…
Summary Judgment Vacated in Bad Faith Case
This week the Eleventh Circuit, applying Florida law, vacated summary judgment in favor of the defendant insurer in a case alleging bad faith for failure to communicate a settlement offer. Hinson v. Titan Ins. Co., ___ Fed. App’x ___, 2016 WL 4169117 (Aug. 8, 2016) . The insurer received the offer, dated December 21, 2007 and including among other…
Eleventh Circuit Vacates Summary Judgment Following Answer from Florida Supreme Court
In August 2016, the Eleventh Circuit asked the Florida Supreme Court to weigh in on whether a Florida alternative construction dispute resolution statute requiring notice of any construction dispute implicates an insurer’s duty to defend its insured against “suits.” The Florida legislature enacted Chapter 558 of the Florida Statutes in 2003 “establishing a notice and…