Under Florida law, a settlement may not be enforced against an insurer where its insured did not negotiate in good faith, thus failing to adequately represent the interests of the party that would ultimately have to pay the settlement. The Eleventh Circuit, in an opinion published November 17, 2016, Sidman v. Travelers Casualty & Surety, 2016…
Secondhand Knowledge Held Insufficient to Qualify False Claims Act Relator as “Original Source”
In United States ex rel. Saldivar v. Fresenius Medical Care Holdings, Inc., 2016 WL 6595937 (11th Cir. Nov. 8, 2016), the Eleventh Circuit joined the Third, Seventh, Eighth, and Tenth Circuits holding that “secondhand” knowledge is insufficient to make someone an “original source” under the False Claims Act (FCA). The plaintiff alleged in a qui…
Trademark Plaintiff Waited Too Long to Douse the Fire
When an opinion opens with “the plaintiff pursued its preliminary-injunction motion with the urgency of someone out on a meandering evening stroll rather than someone in a race against time,” there isn’t much suspense about who’s going to win and why, and the court did indeed affirm the denial of preliminary injunctive relief in Wreal,…
Native American Tribes Cannot Be Sued Under the ADEA
Native American tribes enjoy sovereign immunity from suit under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-634. This was the holding of the Eleventh Circuit’s published opinion in Williams v. Poarch Band of Creek Indians, 2016 WL 6081345 (11th Cir. Oct. 18, 2016). This case clarifies principles of statutory interpretation and reaffirms the…
Supreme Court to Decide Interplay Between Bankruptcy Code and FDCPA
This past Tuesday, the Supreme Court granted certiorari in Midland Funding, LLC v. Johnson, No. 16-348 (cert. granted Oct. 11, 2016), to review the Eleventh Circuit’s holding that filing a stale proof of claim in a consumer bankruptcy violates the Fair Debt Collection Practices Act. For more details on the Eleventh Circuit’s opinion, 823 F.3d…
Interpretations of RESPA: A foreclosure sale “occurs” when scheduled, and one instance is never a pattern.
In Lage v. Ocwen Loan Servicing LLC, 2016 WL 5864507, Plaintiff-borrowers sued defendant loan servicer, alleging liability under the Real Estate Settlement Procedures Act (“RESPA”) for failure to evaluate the merits of their loss mitigation application within thirty days as required by 12 C.F.R. § 1024.41(c) and for inadequately responding to their notice of error as…
Eleventh Circuit Rules Against EEOC Finding Age Discrimination in Hiring Claims Cannot Be Based on Disparate Impact Theory
May a job applicant sue a prospective employer based on a policy that had an adverse and disproportionate effect on him because of his age? The Eleventh Circuit, in an en banc opinion published October 5, 2016, Villarreal v. R.J. Reynolds Tobacco Co., Pinstripe, Inc., 2016 WL 5800001, ruled that only employees may bring a disparate impact claim…
Appeal Dismissed Under Spokeo
Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), established that an alleged violation of a statutory right, standing alone, does not necessarily confer Article III standing to bring a claim in federal court. Reaction to the decision continues to evolve. In the latest case from the Eleventh Circuit, the court dismissed an appeal for…
“Surrender” Means “Surrender” – A Debtor Who Surrenders Collateral in Bankruptcy Gives Up the Right to Oppose Foreclosure
David and Donna Failla filed for Chapter 7 bankruptcy protection in 2011. Shortly thereafter, the Faillas filed the “statement of intention” required by section 521(a)(2) of the Bankruptcy Code with respect to their house, which was subject to a mortgage held by Citibank. In the statement, the Faillas agreed to “surrender” the house instead of…
Trademark Battle SCARs Between Assault Rifle Makers
A trademark dispute between assault rifle makers turned on whether promotional activities associated with an unregistered mark having no public sales are sufficient to establish prior analogous use, and whether that mark could acquire distinctiveness through secondary meaning based at least in part on these promotional activities. FN Herstal SA v. Clyde Armory Inc., 2016…