Eleventh Circuit Court of Appeals

The past few years have shown that litigation continues to be a viable vehicle for bringing about societal change, particularly when legislative action does not follow changes in public opinion on high profile issues. The same sex marriage litigation that culminated in same sex marriage bans being declared unconstitutional in Obergefell v. Hodges is perhaps the most prominent, but far from the only, recent example of such litigation resulting in a major societal shift.

But so-called “impact litigation” has its limits. If a recent 11th Circuit opinion is any indication, changing the culture of aquatic theme parks may be beyond those limits.

There has been extensive recent news and entertainment media coverage criticizing the practice of keeping orcas/killer whales in captivity for entertainment purposes. And public opinion appears to have swung against the practice. According to a 2012 poll, 50% of adults in the US were opposed to the practice, versus 21% who said they were in favor of it. Even Sea World, the most famous aquatic park in the United States, reportedly announced in 2016 that it planned to phase out killer whale shows.

Federal law, however, does not prohibit keeping killer whales in captivity for entertainment. Certain animal rights activists think it should. They brought suit against a Miami aquatic park, hoping to convince the courts that it is unlawful to keep captive an orca/killer whale that has been designated an endangered species.

But in People for the Ethical Treatment of Animals, Inc. v. Miami Seaquarium Festival Fun Parks, LLC, the United States Court of Appeals for the Eleventh Circuit recently rejected that argument. Its decision indicates that the court was not convinced, at least based on the record presented to it, that keeping orcas in captivity is inherently harmful to them.

The whale in question was a Southern Resident Killer Whale. SRKWs were designated an endangered species in 2005, but captive whales were excluded from that designation until 2013. That year, the court’s opinion points out, the National Marine Fisheries Service (NMFS) removed the exclusion based on a petition by PETA, the plaintiff in the case.

PETA brought suit under the Endangered Species Act (ESA). The ESA, among other things, makes it “unlawful for any person to…take any [endangered] species” in United States territory or on the high seas. The orca at issue, named Lolita, had been held in captivity since 1970, long before its species was designated endangered, so PETA could not argue that capturing it was unlawful.

But the prohibition on “taking” under the ESA is broader than simply capturing or killing a member of an endangered species. The statute defines “take” to mean “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”

PETA argued that Miami Seaquarium’s treatment of Lolita, including the tank where she was kept (Lolita is 20 feet long; her tank is 80 feet wide at its widest point and 20 feet deep at its deepest point), sharing that tank with dolphins, and exposure to the sun, amounted to harming or harassing Lolita. The district court granted summary judgment against PETA, interpreting the words “harm” and “harass” in the ESA to be limited to actions that are fatal or potentially fatal to the animal.

The 11th Circuit disagreed that the meanings of the words “harm” and “harass” in the ESA are so limited. But the court of appeals nonetheless found that those words could not simply be read according to their dictionary definitions. The dictionary definition of “harm” includes causing hurt or injury, and PETA identified injuries that it said were caused by Lolita’s living conditions at Miami Seaquarium.

But the 11th Circuit said the context of the terms “harm” and “harass” in the ESA had to be considered to determine the degree of harm or harassment necessary to violate the statute. It applied the interpretive principle noscitur a sociis, “a word is known by the company it keeps,” and noted that the other acts listed together with “harm” and “harass” all appeared to be actions posing a “serious threat” to the animal. So “harm” and “harass” had to be read as applying only to actions posing a “serious threat” to the animal. The court of appeals found support for its conclusion in the purpose of the ESA, conservation, which it said is “is a broad means aimed at preventing a specific end: extinction,” as well as in federal agency interpretations of the terms.

Finally, the court revealed a serious concern that perhaps underlies the entire debate: if PETA’s position were accepted, any entity holding a member of an endangered species in captivity would likely be subject to ESA liability on an ongoing basis. In the face of continuous liability, it would be untenable for an aquatic park to continue to hold a killer whale in captivity.

That, I suspect, was precisely the societal change that PETA sought to accomplish: forcing aquatic parks to free orcas (or at least any orca that is a member of endangered species) from captivity. If the 11th Circuit’s decision is any indication, effectuating such a societal change is beyond the reach of impact litigation.

Florida commercial fishing industry, meet the Supreme Court of the United States. The Supreme Court has agreed to hear three cases from Florida in its current term, two of which involve commercial fishing.

In the most recently granted case, the state of Florida is set to do battle with the state of Georgia, in a dispute over Georgia’s consumption of water from two rivers that flow south through Georgia before converging and flowing through northwest Florida into the Gulf of Mexico. On November 3, 2014, the Supreme Court granted Florida’s motion for leave to file its complaint against Georgia, which is tantamount to the Supreme Court agreeing to hear the case. I will preview that case in my next post.  

This post focuses on a second case from Florida involving commercial fishing, Yates v. United States, which has been on the Supreme Court’s docket since late April. Oral argument has been set for today, November 5, 2014. While affecting fewer Floridians, the case has drawn participation from a host of amici curiae (literally, “friends of the court,” parties not directly involved with the case that want to weigh in to assist the Court in reaching its decision), indicating that it is seen as having the potential to have significant legal consequences.

Is Throwing Fish Overboard a Federal Crime?  

In Yates, the Supreme Court is reviewing the Eleventh Circuit’s interpretation of a federal statute that, at first blush, would seem to have nothing to do with commercial fishing. But the 11th Circuit concluded that it is fully applicable to commercial fishermen.

The statute, 18 U.S.C. section 1519, was passed in the wake of the Enron scandal, as part of the Sarbanes Oxley Act (SOX). Intended to avoid a repeat of the type of fraud perpetrated by Enron on investors and employees, SOX imposed more stringent accounting and financial reporting requirements for public companies, as well as other reforms.

Section 1519 was intended to close a loophole that allowed Enron to avoid punishment for its concerted efforts to destroy evidence and thwart investigation of its fraud. Accordingly, the statute makes it a crime to destroy or conceal “any record, document, or tangible object with the intent to impede, obstruct, or influence” a federal investigation. 

Other than federal prosecutors, few would have thought that Congress had John Yates in mind when it passed section 1519. Yates was the captain of a commercial fishing boat that was fishing for red grouper in the Gulf of Mexico in August 2007, when an FWC Officer boarded his vessel to inspect for compliance with fishing regulations. (At the time, Yates’ boat was fishing in federal waters, and the FWC officer had been deputized by the National Marine Fisheries Service.)

The FWC officer measured red grouper he suspected were shorter than 20 inches long, the minimum size then-current regulations allowed to be harvested. He found 72 undersized red grouper, issued a regulatory citation, and placed the undersized red grouper in wooden crates in the fish box on Yates’ boat, instructing Yates and his crew not to disturb them.

After returning to shore, the FWC officer measured the crated fish in the fish box, and found only 69 red grouper to be undersized, three fewer than before. He believed Yates and his crew had replaced the original fish with other fish. A member of Yates’ crew said Yates had instructed the crew to throw some undersized fish overboard.

As a result, prosecutors charged Yates with violating section 1519. Harvesting undersized fish is a civil regulatory violation, which could have subjected Yates only to paying a fine and having his fishing license suspended.

But because he had allegedly thrown undersized fish overboard, he faced criminal penalties under section 1519. He was eventually convicted and sentenced to spend 30 days in jail. Due to the conviction, he has been unable to find work as a captain.

The issue in the case before the Supreme Court is whether throwing fish overboard falls within the conduct made illegal by section 1519. More precisely, the issue is whether throwing fish overboard amounts to destroying or concealing a “tangible object” as that term is used in section 1519.

The 11th Circuit had little trouble concluding that it does. Its reasoning was simple. The Supreme Court has instructed that statutes should be interpreted according to the plain meaning of their terms. Unless the words are ambiguous, courts aren’t supposed to look to the intent behind the law. The term “tangible object” doesn’t appear to be ambiguous. And it literally means any physical object. A fish is a physical object. So the statute would seem to apply to Yates, even though Congress may not have intended it to apply to him.

There is no circuit split on the issue to resolve, which is the primary basis on which the Supreme Court generally agrees to hear cases. No other court of appeals is known to have confronted the issue whether a fish is a “tangible object” under section 1519. And the language of the statute seems clear enough.

So why would the Supreme Court take up the case? The answer may be that the case cries out for placing some limits on the doctrine of blindly applying federal criminal statutes, without any consideration of legislative intent, practical outcomes, or the appropriateness of making conduct a federal crime — at least in some circumstances.

The Supreme Court’s 2014 decision in Bond v. United States may provide a clue as to the Court’s thinking. In that case, the government invoked a statute dealing with chemical warfare to prosecute a woman who had tried to poison her former best friend, after discovering that she was pregnant with the woman’s husband’s child. Although the woman’s conduct fell under the literal meaning of the statute, the Supreme Court looked further. The statute’s wording may not have been ambiguous in itself, but Congressional overreach made it ambiguous in a sense:

[T]he ambiguity derives from the improbably broad reach of the key statutory definition given the term—“chemical weapon”—being defined; the deeply serious consequences of adopting such a boundless reading; and the lack of any apparent need to do so in light of the context from which the statute arose—a treaty about chemical warfare and terrorism. We conclude that, in this curious case, we can insist on a clear indication that Congress meant to reach purely local crimes, before interpreting the statute’s expansive language in a way that intrudes on the police power of the States.

Similar concerns about making it a federal crime to throw fish overboard may have motivated the Supreme Court to take up Yates. Most of the large contingent of amici curiae–including libertarian and pro-business groups, professors, criminal defense lawyers, and former House Financial Services Committee Chairman Michael Oxley, the Oxley in Sarbanes Oxley–urge the Court to go in a similar direction in Yates as it did in Bond. Many of the amicus briefs focus on what they call “overcriminalization” of conduct under federal law, and ask the Supreme Court to impose limits on the permissible reach of federal criminal law.

SOX seems like a good statute to use to advance that argument. It was controversial when passed, with some saying its requirements are too onerous, and it is highly disliked by Wall Street and others in the business community.   

But the question remains whether the majority of the Supreme Court will consider prosecuting a commercial fisherman under SOX a “curious” enough case to justify looking beyond the unambiguous words of the statute. If so, the bigger issue will be how the Court draws the line as to when courts may look behing the plain meaning of statutory terms when determining the scope of conduct made illegal by a federal criminal statute.    

With the collapse of multiple large scale Ponzi schemes in recent years, Federal courts in Florida and elsewhere have been wrestling with so-called “clawback” suits. The way Ponzi schemes work is that the schemers induce investors to give them money that is supposed to be invested, usually with high returns promised.

But because the promised returns are unsustainable and the schemers syphon off investors’ funds for their own personal use, the schemers cannot pay the promised returns to investors when they seek to liquidate their investments. Thus, the Ponzi schemers recruit additional investors, and instead of investing the funds received, they use the funds to pay the earlier investors the principal and earnings promised.

Typically, Ponzi schemes collapse and are discovered when the new money coming in is insufficient to pay the amount promised to withdrawing earlier investors. Investors that withdraw early often see the return of the principal they invested and also receive “earnings” on that principal. When a Ponzi scheme collapses, there are usually insufficient funds to return the principal given to the Ponzi schemers by the remaining investors, much less the promised earnings. 

In a clawback suit, the bankruptcy trustee or receiver appointed to oversee the wind-up of an entity involved in a Ponzi scheme seeks to recover funds paid to the earlier investors in order to achieve a more equitable distribution of funds as between earlier and later investors. The theory of the suits is that the transfers to the earlier investors were fraudulent transfers, which may be recovered under fraudulent transfer statutes, such the Florida Uniform Fraudulent Transfer Act (FUFTA), Florida Statutes §726.101 et seq.

But Ponzi scheme clawback suits aren’t the typical fraudulent transfer suit. In Wiand v. Lee (decided June 2, 2014), the Eleventh Circuit addressed the viability of such suits under FUFTA, and resoundingly endorsed them. 

The clawback suit in Wiand resulted from the collapse of a Ponzi scheme run by Arthur Nadel, in which he induced investments into certain hedge funds. Wiand was the receiver for those funds. Lee was an early investor that had withdrawn its investment and was paid back its principal, plus profits. Wiand sought return of the profits.

The 11th Circuit held that a transfer made in furtherance of a Ponzi scheme satisfies the requirements of the “actual fraud” provision of FUFTA. Under the actual fraud provision, a transfer is fraudulent when the debtor made the transfer “with actual intent to hinder, delay, or defraud any creditor of the debtor…” Courts have interpreted that provision to mean there must be “[1] a creditor to be defrauded, [2] a debtor intending fraud, and [3] a conveyance of property which is applicable by law to the payment of the debt due.”

Although the second element, fraudulent intent, is usually determined based on “badges of fraud,” the 11th Circuit held that proof that a transfer was made in furtherance of a Ponzi scheme is sufficient to show fraudulent intent without the need to consider the “badges of fraud.”

The more difficult questions were who was the creditor and debtor and whether the funds received by Lee were “property of the debtor,” as required by FUFTA to recover them. Money from the hedge funds was transferred to Lee by Nadel.

The court of appeals explained that the hedge funds were the creditors, because when Nadel illegally transferred money from them, he became a debtor to them for the funds he illegally removed. It then turned to the issue of whether the funds were “property of the debtor.”

Although “property of the debtor” would appear to mean Nadel’s property given that he was the debtor, the 11th Circuit held otherwise. According to the court, under Florida law, “property of the debtor” means “property which is applicable by law to the payment of the debt due.” Because the funds removed created the debt owed by Nadel to the hedge funds, the funds he removed were “applicable by law to the payment of the debt due.”   

Addressing the receiver’s cross-appeal, the 11th Circuit held that pre-judgment interest should be awarded in FUFTA cases as a matter of course, except in limited circumstances where specific equitable factors counsel otherwise. The denial of prejudgment interest was reversed, with a remand for determination of whether any recognized equitable considerations justified the denial of prejudgment interest. 

U.S. federal courts are characteristically wary of overstepping their bounds when adjudicating cases involving foreign governments or issues and events occuring in foreign countries. That can pose a challenge for U.S. companies engaged in international business, especially with foreign governments. When such business dealings go sour, the ability to enforce contract rights in U.S. courts can be critical.

Recent decisions of the Eleventh Circuit and other federal courts of appeals should give comfort to U.S. companies that do business with foreign governments that they can enforce their contract rights in U.S. courts. Lawyers can help keep their clients’ disputes in U.S. courts by ensuring that their contracts include clauses protecting the right to do so.

The Eleventh Circuit’s recent decision in GDG Acquisitions, LLC v. Government of Belize, decided April 22, 2014, illustrates that point. The dispute arose from a deal in which International Telecommunications, Ltd. (Intelco) leased telecommunications hardware to the government of Belize.

The Facts

Although Intelco was actually a Belizean company, the deal was negotiated in Florida and Washington, D.C. It was financed by a U.S. bank located in Miami. The deal closing was in Miami, where the government of Belize also took possession of the equipment. A month before suit was filed, Intelco assigned its rights against Belize to GDG, a U.S. company owned by the founder and director of Intelco.

The lease agreement included (1) a choice of law clause specifying that Florida law controlled; (2) a choice of forum clause, in which the government of Belize “submit[ted] to the exclusive jurisdiction of” the federal and state courts in Florida and consented to suit in those courts; and (3) a clause in which the government of Belize waived objections to Florida forums and claims that such forums were inconvenient.

After the government of Belize neither returned the equipment at the end of the lease term nor continued making lease payments, GDG filed suit in the Southern District of Florida. In response, Belize contended that the minister who signed the lease agreement did not have authority under Belizean law to bind the government. It moved to dismiss the complaint on the ground that the suit should be adjudicated in Belize.

The District Court dismissed the suit based on the alternative grounds of forum non conveniens and the doctrine of international comity. On appeal, the Eleventh Circuit disagreed.

Forum Selection Clauses Control the Forum Non Conveniens Analysis

Regarding forum non conveniens, the Eleventh Circuit found fault in the district court’s failure to give sufficient weight to the forum selection clause in its analysis. Under the U.S. Supreme Court’s recent decision in Atlantic Marine Constr. Co. v. U.S. Dist. Court for the W. Dist. of Tex., 134 S. Ct. 568 (2013), a forum selection clause, if enforceable, “carries near determinative weight” in evaluating whether to dismiss a suit for forum non conveniens. 

The Eleventh Circuit left it for the district court to decide in the first instance whether the forum selection clause was enforceable, as well as whether the clause is permissible or mandatory, i.e., whether the clause requires that litigation take place in Florida, or merely permits litigation in Florida but allows suit to be brought in other jurisdictions as well. The court of appeals made clear, though, that if the clause is enforceable and mandatory, it will “control except in unusual cases.”

A valid and mandatory forum selection clause will trump other forum non conveniens considerations such as where it would be more expeditious to litigate based on where witnesses and evidence are located. Even if litigation in another forum may be more convenient, enforcing forum selection clauses in international transactions is paramount:

This approach is consonant with the Supreme Court’s longstanding recognition “that privately bargained-for forum-selection clauses [are] a necessary component of the expanded international commercial relationships of our time.” Estate of Myhra v. Royal Caribbean Cruises, Ltd., 695 F.3d 1233, 1240 (11th Cir. 2012) 

International Comity is Applied Sparingly When a Foreign Court Has Not Already Exercised Jurisdiction Over the Dispute

The Eleventh Circuit also rejected the argument that principles of international comity supported deferring to Belizean courts to resolve the dispute. There are two kinds of comity, the court explained.

In the first kind, U.S. courts consider whether to respect or enforce a judgment by a court in another nation. In such cases, comity favors generally recognizing and enforcing such judgments, so long as the foreign court was competent and the judgment was neither fraudulent nor violative of “American public policy notions of decency and justice.” 

But it is more rare for U.S. courts to apply comity “prospectively,” i.e., to decline to hear a case when there has been no adjudication, and no litigation is pending, in a foreign jurisdiction. To apply comity prospectively, courts weigh the interests of the United States and the foreign nation in using a foreign forum as well as whether the foreign forum is adequate.

Comity rarely wins the day in that calculus. In fact, the Eleventh Circuit noted that only once has it ever “sustained the dismissal of a lawsuit” based on comity in such circumstances. That case involved a special situation where the U.S. government had reached an international agreement with the German government to resolve all Holocaust era claims through a private foundation set up to resolve all such claims. Due to that agreement, both the U.S. government and the foreign government had a strong interest in having the case resolved in a foreign forum.

But that was an unusual situation that does not support applying comity in a “garden variety” commercial dispute. That the government of Belize may now, as a litigant, claim to have a strong interest in litigating in its own courts does not make international comity appropriate.

Litigants Against Foreign Governments Have Recently Fared Well in the 2nd Circuit as Well

This favorable outcome for a private business in a commercial dispute against a foreign government comes on the heels of a successful effort to hold the government of Argentina accountable for defaulted bonds in the Second Circuit. NML Capital, Ltd. v. Republic of Argentina, like GDG, involved a forum selection clause and choice of law clause making litigation proper in the U.S. (New York) and the law of a U.S. state (New York) controlling.

The issue was not one of forum but of the power of a U.S. court to enforce judgments against a foreign sovereign. Thedistrict court imposed an injunction requiring Argentina to pay its debts to the holders of the defaulted bonds in parity with its payments to holders of later issued bonds as required by contract, despite that the Argentinian legislature had passed a law forbidding the government from making payments on the earlier bonds. 

On appeal, the Second Circuit rejected Argentina’s argument that the injunction violated the Foreign Sovereign Immunities Act, under which U.S. courts cannot exercise control over the property of a foreign state. Although Argentina contended that the injunction effectively exercises control over its funds by requiring it to pay money to the bondholders, the Second Circuit held that the injunction was permissible. The determinative factor was that the injunction did not technically force Argentina to pay money to anyone — it merely required that if Argentina paid money to one group, it must also pay the other group on par. Argentina has filed a petition for certiorari asking the Supreme Court of the United States to overturn that ruling.


No doubt litigation arising from international transactions will continue to pose special challenges for litigants seeking relief in U.S. courts, particularly when foreign governments are involved. But, so long as international agreements are drafted so as to preserve the ability to litigate in U.S. courts, these cases illustrate that those obstacles can be overcome.  

If you read through all 207 pages of 11th Circuit Judge Hull and Judge Dubina’s co-authored majority opinion in Florida v. U.S. Department of Health and Human Services, you’ll notice that although the state Attorneys General succeeded in having the Health Care Act’s individual mandate declared unconstitutional, it wasn’t their arguments that ruled the day. You may also notice the unusual number of citations to amicus briefs. And you may notice that the 2-1 decision resulted, more than anything, from the persuasive power of arguments submitted by these “friends of the court.”

The parties in the Florida case and others challenging PPACA (a/k/a the Patient Protection and Affordable Care Act) have focused their arguments on the issue of whether the individual mandate compels citizens to enter into economic activity, and if so, whether the federal government’s power to “regulate commerce” under the Constitution includes the power to compel a citizen to engage in economic activity rather than merely to regulate the economic activity of citizens who are already engaged in it. Until now, so have the courts’ decisions in those cases.

Not the 11th Circuit majority. It was “not persuaded that the formalistic dichotomy of activity and inactivity provides a workable or persuasive enough answer in this case.” Instead, the court’s analysis focused on whether, assuming the individual mandate is properly characterized as regulating activities, the activities it regulates “substantially affect interstate commerce.”

Congressional findings in PPACA attempt to show that the individual mandate would have those substantial effects, by preventing the “cost-shifting” that results when uninsured persons are treated by medical providers but unable to pay, causing the providers to shift those unpaid costs to persons who do pay for treatment, i.e., health insurers and health insurance purchasers.  But the 11th Circuit majority deemed those findings inadequate to satisfy the “substantial effects” test.

And key to that rejection was the majority’s embrace of a the position advanced by a group of economists who participated as amici curiae.  Their brief included a breakdown of cost-shifting and argued that different types of uninsured persons are responsible for separable portions of cost-shifting, and that the group that the individual mandate would require to buy health insurance isn’t responsible for most of the cost-shifting. Brief of Amici Economists.pdf.  Echoing that reasoning, Judges Hull and Dubina ultimately found that “in reality, the primary persons regulated by the individual mandate are not cost-shifters but healthy individuals who forego purchasing insurance.”

On that basis, the 11th Circuit majority concluded that the link between the activity regulated by the individual mandate, on the one hand, and cost-shifting, on the other, was too attenuated to satisfy the “substantial effects” test: “At best, we can say that the uninsured may, at some point in the unforeseeable future, create that cost-shifting consequence.”  As such, the majority held that the Commerce Clause did not empower the federal government to enact the individual mandate.

Just how significant a role amici played in influencing the majority is perhaps even better illustrated by the pages of text Judge Marcus’s dissent devotes to responding to their arguments. Judge Marcus uses that space to express his strong disagreement with amici’s argument (which the majority appears to have accepted) that not all uninsured individuals will inevitably become healthcare consumers at some point in time. He goes on to discuss at length why the majority is wrong for adopting amici’s parsing of groups of uninsured, as well amici’s argument that it even matters.

But as much as the Florida PPACA case demonstrates the influence that “friends of the court” can have, the outcome also shows that there are limits. I doubt that the amici on either side of the case are particularly happy with the result; leaving PPACA intact sans the individual mandate was no one’s goal, and it would result in sky high health insurance premiums for everyone who buys it, including economists. And no one likes sky high premiums, especially economists.  Even when their amici curiae briefs are responsible for that result.

If you’re like me, some mornings you’re greeted by an email that purports to be from a potential client (usually located in China, Hong Kong, or Japan) that reads something like this:

Dear Counsel [or Sir or some other generic greeting],

On behalf of XYZ Company, we request your legal services and possible representation on a Debt Recovery matter involving XYZ Company and a client in your jurisdiction.

Do let us know if you are currently accepting new clients. We look forward to a prompt response from you. Thank you very much.


[Mr. ________

XYZ Company]

I’ll admit that the first time I received such an email years ago, I entertained the idea, for a brief moment at least, that maybe, just maybe, it was legitimate inquiry. But then my inner skeptic took over, and I went right to snopes.com or some similar site to see if scams of this type were going around. They were, of course.  I deleted the email and went back to the grind.

Now I just delete them as soon as they come in. As I’m sure you do. And as I thought every lawyer did.

But it seems that some lawyer or employee at a now-defunct central Florida law firm didn’t listen to his or her inner skeptic when he/she received one of those emails back in 2007. Giving that person the benefit of the doubt, let’s assume these scams weren’t so well publicized back then.

The Scam

In any event, an inquiry came from Hong Kong asking the law firm to set up a U.S. subsidiary of a supposed Hong Kong parent company. The “client” subsequently sent a cashier’s check to the law firm for a bit more than $197,000. The lawyer deposited it in the firm’s lawyer’s trust (IOTA) account. Before the check cleared, the client told the law firm to wire $180,000+ to other foreign entities.

The law firm proceeded to follow the client’s directions. And because the law firm had enough funds from other clients in its IOTA account, the bank covered the wire transfers even though the original check hadn’t cleared. The “client’s” check, of course, never did clear.

The Insurance Coverage Dispute

Realizing it was short $180,000+ to its other clients, the law firm sought coverage from its malpractice insurer for their lost funds.  [I imagine the adjuster’s reaction went something like this: “You did what? You fell for one of those scams? And you want us to indemnify you for it?!”]

The insurer denied coverage. The law firm filed a declaratory judgment action in the Middle District of Florida. Judge Virginia M. Hernandez Covington granted summary judgment to the insurer.

In Nardella Chong, P.A. v. Medmarc Casualty Insurance Co., No. 10-12237, decided May 27, 2011, the Eleventh Circuit reversed.

The Coverage Issues

The law firm’s professional liability policy indemnified it for “Damages” – defined as “any compensatory monetary judgment or award, or any settlement consented to by the” insurer, resulting from alleged “negligent acts or negligent omissions,” in “the performance of or failure to perform ‘Professional Services.’”

“Professional Services” was defined as including, among other things:

“Services performed . . . for others as an attorney;” and “services as an administrator, conservator, receiver, executor, guardian, trustee, committee of an incompetent person, or services performed in any similar fiduciary capacity, but only for those services typically and customarily performed by and attorney.”

In both the district court and the court of appeals, the case came down to two issues:

1. Did the law firm’s acts and omissions occur in the course of performing “Professional Services”?

2. Did the money the law firm owed its other clients (i.e., the funds lost in the scam that it had to repay into its trust account) amount to “damages” as defined by the policy?

The district court answered “no” to both questions, but the 11th Circuit answered “yes.”

The Court’s reasoning, and my analysis, is below.


Continue Reading Malpractice Insurance Covers Client Trust Funds Lost in Scam, 11th Circuit Holds

Orlando City officials received good tidings on April 12, 2011, as 11th Circuit, sitting en banc, ruled in the City’s favor in First Vagabonds Church of God v. City of Orlando, No. 08-16788. The Court unanimously upheld an Orlando ordinance enacted to keep activists for the homeless from serving meals twice a week in Orlando’s most prominent park, Lake Eola Park.  The decision is available here (PDF).  

The Facts:

Essentially, a church catering to the homeless and a political group had set up shop twice a week in the park, serving meals that attracted dozens of homeless persons.  Nearby residents were *less than thrilled* about having these guests visit them so frequently.  

So Orlando enacted a city ordinance that requires anyone who wants to hold a “large group feeding” to obtain a permit, and limited applicants to holding a feeding twice per year in any one park.  Orlando has 42 parks within the vicinity of City Hall (in the Downtown Parks District) and another 66 elsewhere, so in theory the group could hold 84 of its 104 yearly “feedings” in the Downtown Parks, and the other 20 still within the City limits.  

Previous Decisions

The District Court enjoined enforcement of the ordinance as violative of First Amendment rights.  On appeal, Judge Edmonson, writing for a panel majority of himself and Judge Baldock of the 10th Circuit, sitting by designation, reversed.  The majority held that the conduct regulated by the Orlando ordinance, namely holding “large group feedings,” was not expressive in nature, so it was not protected by the 1st Amendment.

Dissents in the 11th Circuit are pretty rare as compared to other federal Circuits, but Judge Barkett vigorously dissented, disputing the majority’s characterization of the conduct being regulated.  In her view, the large group feedings the ordinance targeted had an unmistakable protest element to them, and the conduct was therefore entitled to 1st Amendment protection.

The En Banc Holding   

Here’s where it gets interesting.  Although Judge Barkett dissented from the panel decision, the en banc decision was unanimous (which is also pretty rare).  And the en banc Court reached the same result as the panel, finding that the ordinance is enforceable and Constitutional.

The difference was in the reasoning.  The en banc Court assumed without deciding that the conduct at issue was expressive in nature.  But it found that the ordinance itself passed Constitutional muster. 

The ordinance, the Court explained, does not ban any type of speech outright.  It is only a reasonable “time, place or manner” restriction” in that it restricts the amount of time any group can use any one park for a “feeding”. 

The ordinance is also viewpoint neutral, according to the Court.  Moreover, the Court noted, the homeless activist groups can obey the ordinance and still hold their feedings.  They will just need to rotate among the City’s parks.

Judge Barkett was apparently okay with that conclusion.  As was the rest of the unanimous Court.