Starting with the last case first, in USA v. Campbell, the Eleventh Circuit affirmed the reasonableness of former Atlanta Mayor Bill Campbell's sentence resulting from his conviction for tax evasion (although he was acquitted of RICO). Far from questioning the reasonableness of the sentence, the panel questioned whether it was sufficiently severe, but because (as the panel complained in a footnote) the government did not cross-appeal, the court did not have the opportunity to address whether the 30-month sentence should have been higher. And, the details of the opinion generally reflect the view that Campbell should consider himself lucky he was only convicted of tax evasion and only got 30 months.

Embedded in this opinion is the court's recognition of a potential issue brought to the fore by the recent U.S. Supreme Court case of Rita v. United States: the Eleventh Circuit (post-Booker) has, in contrast with other circuits, held that a sentence within the guidelines range is not necessarily presumptively reasonable. It did so for reasons that are potentially undermined by the reasoning in Rita, however, and in Rita the Supreme Court affirmed circuit decisions affording such a presumption. In the Campbell opinion, the court resists such a presumption, although seemingly inviting an en banc petition or cert petition on the issue. (Note: Campbell also challenged the district court's disqualification of his first counsel, Craig Gillen, whose partner, Buddy Parker, represented one of the coconspirators who pled guilty and was to testify against Campbell, but the Eleventh Circuit found the district court did not abuse its discretion in doing so.)

In Yi Qiang Yang v. Attorney General, the Eleventh Circuit encountered a dilemma that has interesting implications beyond those addressed in this case -- although the panel dodged answering the question here. Immigration precedent establishes that a lawfully-married husband of a Chinese woman who is threatened with family planning laws may apply for asylum in the United States. In this case, the applicant was married in a "traditional" wedding ceremony at home instead of a legal ceremony because the couple was under the legal age for marriage (husband and wife were 21 and 17, respectively). When his wife became pregnant, the Chinese authorities took her into custody and forced her to have an abortion because she was not legally married, and the husband fled after an altercation with authorities (while his wife remained in China). The Eleventh Circuit held that it was reasonable for the BIA to draw the line at lawful marriage, as opposed to traditional marriage, when deciding whether to grant asylum. (In other words, asylum protects only against the coercive family planning in an otherwise legal marriage, and not more broadly against China's view of when legal marriage is permissible.)

The broader question (with even broader implications), though, was looming: is it an Equal Protection violation to grant asylum to a lawfully-married couple on family-planning grounds, but to deny asylum to a couple who is not permitted, under prevailing law, to be lawfully married, even though they have had a traditional marriage and undertaken every other effort to demonstrate their commitment to each other? This question had not been raised in the immigration proceedings below, though, so the Eleventh Circuit declined to decide it.

Finally, in Becker v. Davis, Anne Becker (individually and as trustee for several trusts) sued several individuals and entities for providing faulty financial advice, enriching themselves at her and the trusts' expense. Becker had signed agreements containing an NASD arbitration clause, however, and the defendants moved to compel arbitration. Becker resisted, on  grounds including that she, in her individual capacity, was not a signatory to the agreements, several of the defendants were also not signatories, and a claim for an accounting did not arise from the "business" in the agreements, as required by the arbitration clause.

The district court agreed with her on these grounds, but the Eleventh Circuit reversed. Becker's individual claims relied in part on terms of the same agreements that contained the arbitration clauses, so she was estopped from avoiding arbitration of those claims on the ground that she had not personally signed these agreements (although arbitration of non-contract claims such as breach of fiduciary duty might be avoided on those grounds). Additionally, that the defendants were not actually signatories did not allow Becker to avoid arbitration because she had asserted that these defendants were coconspirators with the signatories. And, finally, a claim for an accounting is not a separate claim, but is a claim for a remedy based on a substantive claim. Because the underlying substantive claims were subject to arbitration, the claim for an accounting were subject to arbitration as well. Practice note: don't plead yourself into arbitration if you don't want to be there.

We have two 11th Circuit cases today -- one is a Chapter 11 case analyzing a fraudulent transfer, and the other addresses calculation of the value of counterfeit goods in a sentencing case.

In a case involving the bankruptcy of Advanced Telecommunication Network, Inc., an apparent victim of telecom boom and bust, the debtor sought to recover allegedly fraudulent transfers of $6 million to the Allen brothers, both of whom were stockholders, and one of whom controlled 50% of the voting stock. The transfer was made pursuant to an agreement in settlement of litigation between the Allens and Gary Carpenter, who controlled the other 50% of the voting stock; subsequently, however, the payments were recharacterized as "loans" financing Carpenter's purchase of the brothers' stock. Moreover, the "loans" were funded from prepaid customer accounts. Fast forward about four years, when ATN, which Carpenter sold to another company, finally declared bankruptcy. ATN sought to recover the $6 million transfer, but the bankruptcy court held that it was barred by New Jersey's statute of limitations, and that it did not qualify as a fraudulent transfer because ATN was solvent at the time of the transfer, and it received "reasonably equivalent value" for the transfer.

The Eleventh Circuit found that New Jersey's statute of limitations did not bar the claim. It went on to find that the bankruptcy court correctly found ATN was presumptively insolvent, but incorrectly applied the burdens of proof to find that the evidence nevertheless established that ATN was actually solvent based on a balance sheet test. Additionally, the Eleventh Circuit found the bankruptcy court erred in finding that there was any value received at the time of the transfer, other than the mere cessation of the litigation between the Allens and Carpenter (which apparently was not enough to meet the test).

In USA v. Herman Alberto Lozano, the defendant was the owner of Suplimet Corp., a Miami based wholesale distributor of cell phone parts and accessories -- including, apparently, a lot of counterfeit goods. At issue was whether the value of the goods to be considered for sentencing purposes was the retail value of the infringed item as opposed to the infringing item, and whether the retail value in the market where the goods were intended to be sold (Latin America) or the retail value in the U.S. was the operative value. The Eleventh Circuit affirmed the district court's use of the retail value of the infringed item in the U.S. as the operative value for sentencing purposes, because the controlled purchases were made in the U.S. (even if the majority of Suplimet's sales were in Latin America, where the trademark holders did not sell).

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.

The Eleventh Circuit heard oral argument en banc today in Steven I. Weissman v. National Association of Securities Dealers, Inc. et al.  The issue before the court was whether NASDAQ enjoyed absolute immunity as a self-regulatory organization (SRO) for the advertisements described in Weissman’s complaint. The complaint contained the allegation that:

NASDAQ published numerous print and television advertisements in endorsing WorldCom as a great company and a good investment . . . . Though not purporting to offer WorldCom stock for sale, NASDAQ undertook said advertising and promotion for a consideration received or to be received directly or indirectly from WorldCom, market markers and/or stock dealers without disclosing the receipt, whether past or prospective, of such consideration . . . .

Affirming the district court’s denial of a motion to dismiss, a panel of the court concluded that NASDAQ was not absolutely immune from suit for the advertising alleged in the complaint. Judge Barkett authored the panel opinion, which was reported at 468 F.3d 1306. Judge Tjoflat concurred in part and dissented in part, arguing that NASDAQ was entitled to absolute immunity from suit based on the allegations pled in the complaint. Following a poll of the active judges in the circuit, in March, the court vacated the panel opinion and set the case for rehearing en banc.

Mr. Weissman appeared and argued for himself; Douglas R. Cox, a partner in Gibson, Dunn & Crutcher's D.C. office, argued for NASDAQ. Oral argument was lively, with questions from almost every member of the court. The court questioned Mr. Weissman and Mr. Cox extensively over scope of NASDAQ’s immunity, the specific allegations contained in the complaint, and whether NASDAQ should be immune from suit where the conduct in question is calculated to generate a profit, and not to perform quasi-governmental regulatory functions.

The outcome of this case could bring the Eleventh Circuit into harmony with other circuits which have held that SROs like NASDAQ possess absolute immunity, or this case could create a circuit split, setting this issue up for Supreme Court review. The questions asked at oral argument also suggest that some members of the court are considering a narrower result tied to the specific facts of this case. We will continue to follow this case and will report on the release of the court’s en banc opinion.

First, in Perdue v. Lake, an appeal of the injunction issued by a superior court against the enforcement of the 2006 version of the act requiring a photo ID to vote, the Georgia Supreme Court found that plaintiff Lake did not have standing to challenge the act.

As of the date of filing, Lake was a first-time voter, which the court indicated would have allowed her to vote without presenting a photo ID. After the complaint was filed, however, she voted in the July 2006 primary, so she no longer fit into the "first-time voter" category and would have been required to show photo ID to vote. The court reasoned that Lake was required to demonstrate standing as of the filing of the complaint, not based on events subsequent to the filing of the complaint, and thus did not have standing to challenge the act.

Additionally, Lake had a photo ID that permitted her to use the public transportation facilities for disabled individuals offered by MARTA. According to the court, Lake conceded at trial the legal issue of whether MARTA was an "entity of the State of Georgia ... authorized by law to issue personal identification." Thus, the court found that she would be permitted to use the MARTA ID to vote, and accordingly did not have standing on that basis as well. (Disclosure: BME represents plaintiffs in the parallel federal lawsuit challenging the Photo ID law.)

In Randolph County et al. v. Johnson, the Georgia Supreme Court found the case moot because the election at issue had already occurred. Johnson filed a nomination petition for re-election to the Randolph County Board of Commissioners. After the DOJ precleared Georgia, the elections superintendent found an insufficiency in the nomination petition and scheduled a hearing for 6 days before the general election. Johnson succeeded in obtaining a writ of prohibition to prevent the hearing, and also succeeded in winning re-election. (Bar exam question: what does a "writ of prohibition" accomplish and why was it the correct remedy here?) The Georgia Supreme Court said it was well-established that, once an individual's name is placed on the ballot and he wins election, the election cannot be contested on the grounds that the candidate did not comply with nomination requirements. It went on to find that this situation was not likely to repeat, nor would it necessarily evade review.

Finally, in Brooks v. Brown, et al. (and in keeping with today's theme), the Georgia Supreme Court also dismissed an election dispute as moot. HB 1600 reorganized Carroll County's Board of Elections, redrawing districts in the process and thus requiring preclearance from the DOJ. The DOJ did not issue a preclearance letter until July 19, 2006, the day after the date when special elections were supposed to have occurred under the terms of HB 1600. The Election Supervisor obtained a declaratory judgment authorizing the election to occur instead in conjunction with the November general election, and also obtained an ex parte order to open qualifying for the election in August 2006.

One of the candidates appealed on the ground that the superior court did not have the authority to "rewrite" HB 1600 and that the ex parte order was improper, but the Georgia Supreme Court found the dispute moot since, like in the Randolph County case, the election had already occurred. However, the court admonished the county for pursuing, and the trial court for issuing, an improper ex parte order in violation of Uniform Superior Court Rule 4.1.

Of the civil cases, two (Edwards and Bodie) interpret Alabama law, two (Asbestos Settlement Trust and Smith) involve some federal procedural issues, and two (Jordan and Dyer) are Section 1983 cases. Finally, there is an interesting decision regarding applicability of the student exception to FICA to medical residents (USA v. Mt. Sinai), a 1st Amendment case involving a South Beach dance club and a noise ordinance (DA Mortgage), and a case analyzing whether the FLSA applies to travel to and security screening at the worksite (Bonilla).

Stay tuned for more details...

• a ruling that establishes a deferential standard on review of a trial court's decision whether to remove a potential juror from a death case based on his or her views of capital punishment,
• another ruling that reverses the Eleventh Circuit (in a case involving a nude peace sign display), holding that attorneys' fees under Section 1988 cannot be awarded if the plaintiff wins the preliminary injunction battle, but loses the lawsuit war,
• and an opinion holding that the standard for finding a "willful" violation of the notice obligation under the Fair Credit Reporting Act (which entitles the plaintiff to additional damages, including punitives) includes not just knowing violations, but also reckless disregard of the notice obligation.

The Ninth Circuit was on the losing end of both the capital punishment case and the FCRA case (even though the court correctly interpreted the willfulness standard).

The Court also...

• dismissed (and ordered the circuit court opinion vacated in) a case that was to address whether it was unreasonable for a court to depart from the guidelines even where there were no extraordinary circumstances, because the petitioner died, and
• summarily reversed a dismissal of a prisoner's Eighth Amendment claim because the court's determination that the prisoner's pro se complaint was too "conclusory" to be sustained "departs in so stark a manner from the pleading standard mandated by the Federal Rules of Civil Procedure" that the Court found it necessary to grant cert, grant in forma pauperis status, and vacate and remand for further proceedings.

More details at SCOTUSBlog.

Over the next week we will be catching you up on court of appeals decisions (both 11th Circuit and Georgia), as well as this fresh batch of Georgia Supreme Court decisions.

The headline case from today's releases is the decision in the pair of cases, Fowler Properties, Inc. v. Dowland, and vice versa, holding the new offer of judgment statute, OCGA § 9-11-68, unconstitutional as applied to cases filed prior to the statute's enactment. In this slip-and-fall case originally filed in December 2002, the defendant made an offer of judgment of $20,000 after the statute was enacted -- an offer to which the plaintiff did not respond. When the jury found in the defendant's favor at trial, it moved for attorneys' fees pursuant to the statute, which the trial court found reasonable, but denied on the ground that the statute was unconstitutional (on a variety of grounds).

The Georgia Supreme Court unanimously agreed with the trial court that the statute was unconstitutional as applied to cases filed before the statute's enactment because the statute retrospectively altered vested rights or created new obligations -- to wit, paying the other party's attorneys' fees if the plaintiff rejects the defendant's offer of settlement (and subsequently loses). The court said nothing about the statute's constitutionality as applied to later-filed cases, and declined to address other arguments made regarding its constitutionality. (It also affirmed the trial court judgment over the plaintiff's cross-appeal of the denial of a new trial based on complaints related to the court's instructions to the jury.)