The Eleventh Circuit applied Florida law and the preemption provisions of the federal Medical Device Amendments of 1976, 21 U.S.C. § 360c et seq., to reverse the district court’s dismissal of some, but not all, of a plaintiff’s claims against the manufacturer of a hip-replacement device. Mink v. Smith & Nephew, Inc., 2017 WL 2723913…
Eleventh Circuit Mourns Loss of Judge Phyllis Kravitch
The American legal community lost one of its pioneers yesterday, when the Honorable Phyllis Kravitch died after 38 years as a U.S. circuit judge. Judge Kravitch was born in 1920 in Savannah, Georgia, and she received an LL.B. from the University of Pennsylvania Law School in 1943. She returned to practice law in Savannah, where…
No TCPA Liability for Faxes That Do Not Market a Product
“Unsolicited advertisements” prohibited by the Telephone Consumer Protection Act (TCPA) do not include faxes that merely facilitate the purchase of a product but do not promote the sale of products, the Eleventh Circuit confirmed in Florence Endocrine Clinic, PLLC v. Arriva Medical, LLC, 2017 WL 2415966 (11th Cir. June 5, 2017). The defendant was a…
Preclusive Effect of Engle Findings Against Tobacco Cases Does Not Violate Due Process
In a 7-3 decision, the Eleventh Circuit sitting en banc declined to overrule Walker v. R.J. Reynolds Tobacco Co., 734 F.3d 1278 (11th Cir. 2013), and held (again) that a jury’s negligence and strict liability findings in the Engle class action against tobacco companies may be given preclusive effect in follow-on individual cases without violating…
Eleventh Circuit Weighs in on Circuit Split Defining Copyright Registration
Registration of a copyright is a precondition to a suit for copyright infringement. The Eleventh Circuit joined the minority of circuits to have addressed whether registration occurs when an owner files an application to register the copyright or when the Register of Copyrights registers the copyright in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC,…
Improper Claim-Splitting Warrants Dismissal
In a case of first impression, the Eleventh Circuit has held that a plaintiff’s second case against a defendant, arising out of the same nucleus of operative facts, was properly dismissed as the product of improper claim-splitting. Vanover v. NCO Fin. Servs., Inc., 2017 WL 2129557 (11th Cir. May 17, 2017). In 2014, Karen Vanover…
When Choosing a Policy with a “Prior Acts” Exclusion, Buyer Beware
Bank directors ended up with no insurance coverage in Zucker v. U.S. Specialty Insurance Co., 2017 WL 2115414 (11th Cir. May 16, 2017). The Eleventh Circuit, applying Florida law, applied a “prior acts” exclusion from D&O coverage to allegedly fraudulent transfers which were made after the policy’s inception date but which arose out of bank…
No ERISA Claims for Multi-Employer Pension Fund Contributor
Responding to a pension fund’s dire financial condition, its board passed an amendment requiring employers withdrawing from the fund to pay a portion of the fund’s deficiency. One contributing employer, WestRock, then sought a declaratory judgment that the amendment violated ERISA, arguing on appeal that it had a claim under 29 U.S.C. §§ 1132(a)(10) or 1451(a)….
ADA and RA Protect Hospital Patients’ Ability to Exchange Medically Relevant Information
In Silva v. Baptist Health South Florida, Inc., 2017 WL 1830158 (11th Cir. May 8, 2017), the Eleventh Circuit clarified the standard for liability for ADA and RA effective-communication claims against hospitals. The court held that “the relevant inquiry is whether the hospitals’ failure to offer an appropriate auxiliary aid impaired the patient’s ability to…
Deference on All Fronts to Government Settling Qui Tam Action
Deference runs throughout a decision published last week, United States v. Everglades College, Inc., 2017 WL 1658478 (11th Cir. May 3, 2017), where the court issued four holdings in connection with the government’s settlement of a False Claims Act qui tam action relating to federal financial aid funds under Title IV of the Higher Education Act of 1965….