The en banc Eleventh Circuit has issued its third and presumably final opinion in the tortured history of Hunstein v. Preferred Collection & Management Services, Inc., 2022 U.S. App. LEXIS 25233 (11th Cir. Sept. 8, 2022). The court held that the plaintiff failed to allege facts sufficient to establish Article III standing to assert a…
Author: Wendy Spiro
Tax Penalty May Be Communicated to Taxpayer Prior to Required Supervisory Approval
In Kroner v. Commissioner, 2022 U.S. App. LEXIS 25650 (11th Cir. Sept. 13, 2022), the court reversed a U.S. Tax Court decision to hold that the Internal Revenue Service (“IRS”) did not violate section 6751(b) of the Internal Revenue Code when it obtained supervisory approval prior to the assessment of a tax penalty, even though…
Declaratory Judgment Did Not Extinguish Right to Demand Prejudgment Interest Under Georgia Law
In FDIC v. Certain Underwriters at Lloyd’s of London, 2022 U.S. App. LEXIS 23203 (11th Cir. Aug. 19, 2022), the Eleventh Circuit held that a demand for prejudgment interest made after entry of a declaratory judgment was timely under Georgia law. The FDIC, as receiver for Omni National Bank, sued some of Omni’s former officers…
Equitable Estoppel Unavailable to Require Reimbursement from Treasury of Taxes Paid Under Protest
In Affordable Bio Feedstock, Inc. v United States, 2022 U.S. App. LEXIS 20577 (11th Cir. July 26, 2022), the Eleventh Circuit held that the taxpayer was not eligible for reimbursement of protest payments made to the Internal Revenue Service (“IRS”) because “payments of money from the Federal Treasury are limited to those authorized by statute.”…
Roth IRAs, Like Traditional IRAs, Are Excluded from a Georgia Debtor’s Bankruptcy Estate
In a case of first impression, the Eleventh Circuit held that Roth IRAs are excluded from Georgia debtors’ bankruptcy estates under the Bankruptcy Code and Georgia’s garnishment statute. In Hoffman v. Signature Bank of Georgia (In re Hoffman), 2022 U.S. App. LEXIS 2119 (11th Cir. Jan. 24, 2022), the court reversed the district court’s affirmance…
No Direct Physical Loss or Damage, No Coverage: All-Risk Policy Does Not Cover Lost Profits Due to COVID-19 Government Restrictions
The Eleventh Circuit held that an insured’s policy did not cover the lost profits it suffered as a result of government restrictions implemented in response to the COVID-19 pandemic because the policy only covered “direct physical loss or damage.” Ascent Hospitality Management Co. v. Employers Insurance Co. of Wasau, 2022 U.S. App. LEXIS 1161 (11th…
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…
“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…
“Pinnacle” Trademark Dispute Offers Lessons in Trademark Trial Procedure
The court vacated a $550,000 jury verdict in a trademark dispute teeming with procedural issues, Pinnacle Advertising & Marketing Group, Inc. v. Pinnacle Advertising & Marketing Group, LLC, 2021 U.S. App. LEXIS 22770 (11th Cir. Aug. 2, 2021), but kept alive the possibility of injunctive relief for the plaintiff on remand. The case is a…
Credit Reporting Agency’s Procedures and Investigation to Ensure FCRA Accurate Reporting Not Reasonable Enough for Summary Judgment
In Losch v. Nationstar Mortgage LLC, 2021 WL 1653016 (11th Cir. Apr. 28, 2021), the Eleventh Circuit considered whether the defendant Experian violated the Fair Credit Reporting Act’s requirements that a credit-reporting agency employ “reasonable procedures to assure maximum possible accuracy of the information concerning the individual” when preparing credit reports, 15 U.S.C. § 1681e(b),…