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Posts Tagged ‘Eleventh Circuit’

Eleventh Circuit Holds That Debt Collector Did Not Violate FDCPA Even Though It Misstated Name of Creditor In Collection Letter

Posted on: November 19th, 2018

By: Bill Buechner

The Eleventh Circuit very recently affirmed a district court’s ruling that a debt collector did not violate the Fair Debt Collection Practices Act even though the collection misstated the name of the creditor to whom the consumer owed the debt.

In Lait v. Medical Data Sys., 2018 U.S. App. LEXIS 31814 (11th Cir. Nov. 9, 2018) (per curiam), the plaintiff incurred medical expenses provided to him by Enterprise Medical Center. A debt collector sent the plaintiff a letter seeking to collect on the debt. The letter indicated that the debt collector was seeking to collect on the “accounts indicated below.” After two intervening paragraphs, the letter listed “Medical Center Enterprise” next to a service date, the plaintiff’s name, and an outstanding balance of $412. The letter did not expressly refer to Medical Center Enterprise as the plaintiff’s creditor.  Id. at *2.

The plaintiff alleged that the collection letter violated 15 U.S.C. § 1692g, which requires that debt collectors provide in writing certain information to a consumer in either the initial communication or within five days thereafter, including the name of the creditor to whom the debt is owed. The plaintiff did not contend that the different word order of the hospital in the letter caused him any confusion. Instead, the plaintiff asserted that the letter failed to “meaningfully convey” the name of the creditor to whom he owed the debt.

The Eleventh Circuit assumed, without deciding, that the plaintiff’s claim was governed by the least sophisticated consumer standard. Under this standard, the court presumes that the consumer “possess[es] a rudimentary amount of information about the world and a willingness to read a collection notice with some care.” Id. at *5 (citing cases).  Applying this standard, the Eleventh Circuit concluded that, because the plaintiff acknowledged that he had received medical treatment at a hospital called “Enterprise Medical Center,” the least sophisticated consumer “could be expected to connect the dots on a collection letter that lists the name ‘Medical Center Enterprise’ next to an outstanding balance.” Id. In other words, “[a] consumer who had been a patient at a hospital would surely understand the hospital to be the creditor when its name was listed next to the amount of the debt.” Id. at *5-6. Accordingly, the Eleventh Circuit held that the letter complied with § 1692g.

The Eleventh Circuit has applied the least sophisticated consumer standard to other sections of the FDCPA, including 15 U.S.C. §§ 1692e and 1692f.  Other circuits, including the Third, Sixth and Ninth Circuit have applied the least sophisticated consumer standard to claims brought pursuant to § 1692g as well. The Eleventh Circuit has suggested in at least one previous unpublished decision that it did not disagree with these other circuit decisions. The panel in Lait, however, suggested that concerns about obscuring information required to be disclosed under § 1692g could be addressed in other sections of the FDCPA. Lait, 2018 U.S. App. LEXIS 31814, at *4 n.2.

Thus, it remains an open question in the Eleventh Circuit as to whether the least sophisticated consumer standard applies to claims under § 1692g, or whether courts should simply consider whether the collection letter contains the information required by § 1692g without considering whether the least sophisticated consumer would understand it.

If you have any questions or would like more information, please contact Bill Buechner at [email protected].

Eleventh Circuit Again Rejects Claim That Title VII Prohibits Discrimination On The Basis Of Sexual Orientation

Posted on: July 23rd, 2018

By: Bill Buechner

In Bostock v. Clayton Co. Bd of Comm’rs, 723 F. App’x 964 (11th Cir. 2018), the Eleventh Circuit again held that Title VII does not prohibit discrimination on the basis of sexual orientation.   In doing so, the panel relied on prior circuit precedent in Evans v. Ga. Reg’l Hosp., 850 F.3d 1248 (11th Cir.), cert. denied, 138 S.Ct.  557 (2017) and Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979).    Jack Hancock and Bill Buechner are representing the County in the case.

Last week, the Eleventh Circuit issued an order denying a request from a member of the Court for rehearing en banc.  Bostock v. Clayton Co. Bd. of Commissioners, 2018 U.S. App. LEXIS 19835,  2018 WL 3455013 (11th Cir. July 18, 2018).   The order was notable because it was accompanied by a dissent by two circuit judges sharply criticizing their colleagues for not agreeing to rehear the case en banc.

The plaintiff in Bostock had already filed a petition for writ of certiorari with the United States Supreme Court, and the County will be filing a response to that petition in the next few weeks.   The employer in Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc) also has filed a petition for writ of certiorari with the Supreme Court seeking review of the Second Circuit’s ruling that Title VII does prohibit discrimination on the basis of sexual orientation.

We will report on the outcome of these pending petitions for writ of certiorari with the Supreme Court.

If you have any questions or would like more information, please contact Bill Buechner at [email protected].

Little Miller, Big Implications

Posted on: June 20th, 2018

By: Samantha Skolnick

In Georgia, when an individual performs work on a state construction project, they can file a lien for non-payment.  The lien is against the project through Georgia’s Little Miller Act. The claim itself is not against the state or county’s actual property. The claim is against a posted bond, and is a “Bond Claim” or “Little Miller Act Claim.”

In a recent decision by the Eleventh Circuit, the Court affirmed summary judgment for the surety based on Georgia’s one-year statute of limitations for little miller act claims. Strickland v. Arch Ins. Co., No. 17-106102018 WL 327443 (11th Cir. Jan. 9, 2018) (rehearing denied Apr. 4, 2018).

Strickland was tasked with providing sand to a paving company (“Douglas”) for the Georgia Department of Transportation (“GDOT”) as they worked on a road improvement project (the “Project”).  Arch Insurance Company (“Arch”) was the surety who issued payment and performance bonds for Douglas.  In 2007, GDOT declared Douglas in default and they were removed from the Project.  The surety brought in another company to complete the work on the Project. Strickland did not supply any sand after Douglas was removed from the Project.

GDOT determined that the Project was substantially complete in August of 2010 and in September 2010 made its punch list. The new contractor brought on by the surety finished the punch list in September 2011.  In March 2012, GDOT accepted Project maintenance responsibilities and made semi-final payment to Arch in July 2012.

In September 2012, Strickland directed a demand for payment on Arch’s payment bond.  Arch acknowledged the claim but requested additional documentation, which was not provided by Strickland.  In 2014, Strickland filed a lawsuit against Arch. The trial court concluded that there was no dispute that the project was completed and accepted in September 2011.  With that ruling, Georgia’s one-year statute of limitations on payment bond claims barred Strickland’s action and consequently Strickland appealed.

The Appellate Court rejected Strickland’s arguments, holding that “completion” and “acceptance” used in the statute relate to the actual work on the project and are not dependent on the ending of future contractual duties or on the public owner’s internal policies and procedures.

The main takeaway: under Georgia law, the date a public owner states that the project is “completed” or “accepted” does not dictate whether the statute of limitation is running.  Georgia’s one-year statute of limitations under Georgia’s Little Miller Act begins when the actual work is substantially completed. Punch list items do not need to be finished.

If you have any questions, please contact Samantha Skolnick at [email protected].

 

Fourteen Seconds Plus Emergency Lights Equals Probable Cause To Arrest

Posted on: June 11th, 2018

By: Charles Reed

There is a saying that “nothing good ever happens after midnight.” Both City of Hollywood, Florida police officer Ronald Cannella and citizen Livingston Manners would become very familiar with this saying after the events of June 24, 2014. On that day, close to three in the morning, Officer Cannella patrolled a residential area of the city due to a series of recent thefts. Manners, a Hollywood resident, was sitting in his car on the side of the road before heading to work and, shortly after Cannella passed by him on patrol, Manners pulled out and made a turn. What happened after that is largely in dispute, but what is undisputed is that Cannella approached Manners’ vehicle with emergency equipment activated. Manners saw Cannella behind him with lights and siren activated and, instead of stopping his car, Manners drove another fourteen seconds – approximately one tenth of a mile – at a slow speed to reach a well-lit gas station where video surveillance was available. Manners testified that he did not immediately stop his vehicle because it was late at night in a very dark area and, as a large African-American male, he was in fear for his life. However, Manners’ actions captured by videotape thereafter appeared to contradict his purported fear as he argued with Cannella and actively grappled with Cannella as Cannella attempted to arrest him. It took five officers and two taser deployments over a period of three minutes to get Manners in handcuffs.

After Manners was acquitted of the criminal charges stemming from the incident, he sued Cannella and others. On the issue of probable cause, the Eleventh Circuit held in Manners v. Cannella, 2018 U.S. App. Lexis 15007 (June 4, 2018) that Cannella had probable cause to arrest Manners for fleeing or attempting to elude a law enforcement officer by driving “for three blocks, or one-tenth of a mile, or for 14.4 seconds after seeing Officer Cannella was behind him with the patrol car’s lights and sirens on.” Id. at *19. This probable cause was present even though Manners rolled down his windows and drove a slower rate of speed (25 miles per hour) before pulling over to the gas station. The Court analogized Manners’ conduct with previous Florida cases involving a ten mile-per-hour drive for five minutes and a one to two-mile drive after lights and sirens were present. Id. at 21-22. The Court shrugged off Manners’ concerns for his safety by filtering his flight through the doctrine of necessity under state law and further held “a generalized fear of police does not provide a legal basis to vitiate probable cause for the offense of flight.” Id. at 23-24.

The Eleventh Circuit’s analysis of this issue reflects the tension between the law and instructions sometimes provided to the general public when approached by law enforcement late at night. In some instances, especially where the citizen is approached by a person impersonating an officer, news reports will quote senior command staff recommending that citizens call 9-1-1 or travel to well-lit areas late at night if they are uncomfortable with emergency lights behind them.[1] On the other hand, should citizens follow these instructions, they risk arrest and prosecution for flight even if – as in this case – the duration of the travel is a tenth of a mile. For now, at least in the Eleventh Circuit, it appears that law enforcement officers may be justified in effecting an arrest in such situations and may not face civil liability for the exercise of their arrest powers.

If you have any questions or would like more information, please contact Charles Reed at [email protected].

[1] A snapshot of various news articles around the country concerning late night stops between citizens and law enforcement: Chicago Tribune, News4JAX, and South Miami.