11th Circuit Recent Opinions

Yesterday in the 11th Circuit, the Court reversed and remanded Harris v. Coweta County (involving a sheriff's ramming a car to stop a suspect), based on the Supreme Court's decision in the case, styled Scott v. Harris in that court. Our previous discussion of the Supreme Court's decision in that case, reversing the 11th Circuit, is here.

On Friday, the Eleventh Circuit released three published opinions in civil cases involving a FOIA request investigating FEMA's management of hurricane disaster assistance, a Burger King franchisee's standing to bring a false advertising claim against McDonald's, and application of the FLSA to a domestic service employee (applying the Supreme Court's recent opinion in Coke v. Long Island Care at Home).

In Sun-Sentinel Co. v. U.S. Dept. of Homeland Security, in response to a FOIA request, FEMA refused to disclose the names and addresses of some 1.3 million individuals requesting disaster assistance in the four 2004 hurricanes affecting Florida as well as 27 other disasters over the previous 10 years, based on privacy grounds. The Middle District of Florida held that the privacy exemption properly applied to the applicants' names and addresses; the Southern District held that FOIA required FEMA to disclose the addresses but not the names. The Eleventh Circuit consolidated the appeals.

The Eleventh Circuit (Marcus writing) affirmed the Southern District's ruling and reversed the Middle District, holding that the addresses of applicants were not exempt (though the names were). "In light of FEMA's awesome statutory responsibility to prepare the nation for, and respond to, all national incidents, including natural disasters and terrorist attacks, there is a powerful public interest in learning whether, and how well, it has met this responsibility," and since the FOIA request would "shed[ ] light on whether FEMA has been a good steward of billions of taxpayer dollars in the wake of several natural disasters across the country, we cannot find any privacy interests here that even begin to outweigh this public interest." Apart from the FOIA aspect of the case, the opinion also has an interesting exposition of how FEMA's disaster assistance was supposed to work (and criticisms of that system), and a detailed discussion of the allegations regarding FEMA's poor administration of disaster assistance in general and specifically in Miami-Dade County.

In Phoenix of Broward, Inc. v. McDonald's Corp., the Eleventh Circuit affirmed the district court's dismissal of Phoenix's false advertising claim based on lack of standing, adopting the Third Circuit's prudential standing test in Conte Bros. Automotive, Inc. v. Quaker State-Slick 50, Inc., 165 F.3d 221, 225 (3d Cir. 1998). Although this bottom-line result isn't terribly sexy, the facts of the case do involve a tale of corruption -- specifically, a criminal embezzlement ring, led by an employee of Simon Marketing, Inc., the company McDonald's employed to run its promotional "Monopoly" and other similar games. Far from being randomly distributed so that all customers had an equal chance of winning, Simon's director of security recruited individuals to receive higher-value game pieces and collect the winnings and share them among themselves. The FBI and DOJ investigated, and some 50 individuals were convicted in connection with the prize-rigging conspiracy, and the inevitable civil suits followed.

Phoenix brought an action against McDonald's under the Lanham Act on behalf of itself and 1100 similarly situated Burger King franchisees, alleging that McDonald's falsely advertised the odds of winning the rigged game (even after it was allegedly aware of a problem with the game), and thus lured customers away from Burger King franchises. Although constitutional standing requirements were admittedly met, the questions were whether the Lanham Act intended to abrogate prudential standing requirements (i.e. relating to the directness and type of the injury/damages), and whether Phoenix and other franchisees met such requirements. The Eleventh Circuit joined the Third and Fifth Circuits in holding that the Lanham Act did not abrogate prudential standing, and it adopted their test for determining whether prudential standing exists. Specifically, rather than evaluate standing solely in terms of whether the parties were in "actual or direct" competition, the test looks to the different question of whether the plaintiff has a sufficient and "reasonable interest to be protected against false advertising," i.e., a commercial harm adversely affecting the plaintiff's ability to compete or good will and reputation in the marketplace. The court admitted it was a close question but affirmed, finding that, although the type of injury alleged by Phoenix met the test, the damages were too remote and speculative to allow the claim to proceed.

Finally and briefly, in Buckner v. Florida Habilitation Network, Inc., the Eleventh Circuit held that, under the Supreme Court's recent decision in Coke, a domestic services employee employed by a third party employer (instead of directly by the family of the person receiving care) is exempt from the FLSA's overtime requirements. Specifically, the Department of Labor's regulations on the issue (exempting third-party employees) were entitled to Chevron deference.