The Bankruptcy Code, as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”), provides an exception to the automatic stay, which generally prohibits collection activity against property of the estate, for “the withholding of income that is property of the estate or property of the debtor for payment of a domestic…
Year: 2016
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…
Insurers May Be Liable for Double Damages for Failure to Reimburse Other Insurers Acting as “Medicare Advantage Organizations”
A divided panel of the Eleventh Circuit has joined the Third Circuit in holding that not only the government, but also a private insurer acting as a Medicare Advantage Organization (“MAO”), has a right of action for double damages when a primary payer fails to reimburse the MAO for payments the MAO has made. The…
Statutory Non-Waiver Provision Does Not Prevent Severance of Unlawful Terms and Arbitration Enforcement
Where an arbitration provision includes substantive limitations on the relief otherwise available to a party under a federal statute, there are three possible judicial responses: sever the offending provisions and enforce the agreement; enforce the agreement and leave any invalidity questions to the arbitrator, as in PacifiCare Health Systems, Inc. v. Book, 538 U.S. 401…
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…
Court Applies Final Judgment Review Standard to Grant of Summary Judgment
When no jury is demanded, does a district court have more leeway in granting summary judgment? The Eleventh Circuit explained the question in its July 26 opinion in Florida International University Board of Trustees v. Florida National University, Inc., 2016 WL 4010164 (11th Cir. July 26, 2016), affirming the district court’s judgment in favor of the…
Former Law Clerk Seeks New Opportunity
The Eleventh Circuit has an indirect connection with the current presidential race: Democratic vice presidential candidate Tim Kaine served as a law clerk to Senior Judge Lanier Anderson in 1983-84 in Macon.
The Turtles and Sirius XM Radio: Not So “Happy Together” as Eleventh Circuit Certifies Questions of Common Law Copyright to Supreme Court of Florida
In a June 29, 2016 opinion, the Eleventh Circuit examined the question of whether common law copyright under Florida law protects sound recordings fixed prior to February 15, 1972. The opinion in Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 2016 WL 3546433 (11th Cir. June 29, 2016), written by Judge R. Lanier Anderson…
When a Settlement Contingent on Vacatur is Grounds for Rule 60(b) Relief from Judgment
On July 12, the Eleventh Circuit reversed the district court’s denial of a Rule 60(b) motion in Hartford Accident & Indemnity Co. v. Crum & Forster Specialty Insurance Co., 2016 WL 3741972 (11th Cir. July 12, 2016), and vacated the underlying summary judgment orders that the parties had jointly sought relief from in the motion. …