The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
Another one of the greats passed away today -- Mel Black. He was a great guy and a wonderful criminal defense lawyer (for almost 60 years!) That's him below with his client after a big NG. He always had time to talk to you about a case or a problem. And I loved that he recently took a year on a ship around the world. I'll miss him.
Louis D. Brandeis once wrote that "sunlight is said to be the best of disinfectants."And the 11th Circuit just gave that sentiment a constitutional seal of approval, ruling that the Corporate Transparency Act doesn't violate the constitution. The act, passed in 2020, requires companies to disclose their "beneficial owners" to the Treasury Department (beneficial owners being people who exercise substantial control over an entity or who control at least twenty-five percentage of its ownership interests). The idea was to combat corporate shell games that allow bad guys to launder money, etc.
The panel (Judge Brasher writing) said (1) Congress could pass the law under the Commerce Clause and (2) the law doesn't facially violate the Fourth Amendment (Brasher noted that the Supreme Court had rejected Fourth Amendment challenges to similar uniform reporting requirements, including one that requires banks to report domestic currency transactions above a certain amount).
Feels like a fact pattern you might get on your Con law exam. And because it's a Commerce Clause case, you know that had to cite to that old standby, Wickard v. Filburn. You know, the one about the farmer and his intrastate wheat.
Opinion here.
This one is against the BBC. From the NY Times:
President Trump sued the BBC for $10 billion on Monday evening over the editing in a documentary that the British broadcaster said had left the “mistaken impression” that he called for violent action before the storming of the U.S. Capitol.
In a 46-page lawsuit filed in federal court in Miami, Mr. Trump accused the BBC of defaming him and violating Florida’s Deceptive and Unfair Trade Practices Act. He demanded $5 billion for each offense.
In a statement, the president’s legal team said that the lawsuit was designed to hold the British network accountable for what it described as wrongdoing.
The future of the False Claims Act (FCA) hangs in the balance after a pivotal oral argument (before Judges Luck, Branch, Moreno) in the Eleventh Circuit Court of Appeals this past Friday.
In United States ex. rel. Zafirov v. Florida Medical Associates LLC, a three-judge panel grappled with a challenge that strikes at the very heart of the statute: Do the FCA’s qui tam provisions, which allow private whistleblowers to sue on behalf of the government, violate the U.S. Constitution?
The oral argument offered a fascinating glimpse into the judicial tug-of-war between centuries of legal tradition and evolving theories on executive power. Here are the key takeaways from the arguments.
The appeal stems from a first-of-its-kind ruling by U.S. District Judge Kathryn Kimball Mizelle, who declared the qui tam system unconstitutional earlier this year. Her reasoning—echoing concerns raised recently by Supreme Court Justice Clarence Thomas—was that private relators exercise significant executive power without being properly appointed as officers of the United States, a violation of the Appointments Clause.
On Friday, the Eleventh Circuit panel appeared torn between two competing narratives: the text of the Constitution versus the long history of the American legal system.
Judge Robert J. Luck’s questioning suggested a hesitation to overturn a system that has existed since the nation’s founding. He repeatedly pressed defense counsel to explain why qui tam actions should be deemed unconstitutional now, given that they have been present in the U.S. for roughly 250 years.
Judge Luck noted that historical records imply President George Washington and other founders did not view qui tam litigation as conflicting with executive powers. "It looks like some of this was sort of contemplated by some of our founders, was it not?" he asked, searching for any Supreme Court precedent that strictly requires executive appointment for non-government relators.
Judge Elizabeth L. Branch pushed back against the DOJ’s reliance on past circuit court consensus. When the government argued that courts have routinely upheld the FCA for decades, Judge Branch interjected, noting that those decisions are dated.
"It's been about 25 years, and we have some recent statements from the U.S. Supreme Court," she said, alluding to the 2023 opinion in Polansky where Justices Thomas, Kavanaugh, and Barrett signaled interest in revisiting the constitutionality of the whistleblower system.
The oral argument highlighted the stark difference in how each side views the role of a whistleblower:
The Defense (Challenging the FCA): Kannon K. Shanmugam, representing the defendants, argued that the modern FCA (strengthened in 1986) is a different beast from early American statutes. He contended that today's relators hold the power of an "unaccountable office," forcing the government to expend resources and seeking massive penalties without executive oversight.
The Relator/DOJ (Defending the FCA): Counsel for the whistleblower and the DOJ argued that relators are simply private litigants, not government officers. Tejinder Singh, representing the whistleblower, emphasized that relators lack true state power: "No one's handing them a windbreaker and a gun... They're litigating in the same way that a private fraud litigant would litigate."
If the Eleventh Circuit affirms Judge Mizelle’s ruling, it would create a circuit split and almost certainly fast-track the issue to the Supreme Court.
Ever heard someone mention the "Atkins Building" or "Atkins Courthouse"? It's located across from the Wilkie D. and it's where many of our magistrate judges currently sit. The courthouse is named after Judge C. Clyde Atkins. A tribute from UF law school described him as a "champion of civil rights and a defender of those who were less fortunate." Among his important rulings were his orders desegregating Miami-Dade County Public schools (Pate v. Dade County School Board, 315 F. Supp. 1161 (S.D. Fla. 1969).
FBA write-up below.
By John R Byrne
Cue the “Welcome Back, Kotter” theme music. After a three-month-plus long civil RICO trial in state court, DOM is back at his desk at SDFLA Blog HQ. The verdict? A mistrial. Oof. Then again, any day your corporate client isn’t told by a jury to stroke a check for $1.2 billion has to be a good one. The trial ended with some drama, with one juror accusing another of misconduct in a note apparently crafted with the help of AI (the judge concluded the allegations were not credible). Oh, and jurors dressed up like Dr. Seuss characters from “The Cat and the Hat” on Halloween. Federal judges with Halloween trials take note! Article on the trial is here.
A different deliberative body had no issue delivering its verdict on Saturday. The College Football Playoff Committee released the greatly anticipated 12 team playoff slate. No lack of drama here either. Like a high stakes version of musical chairs, there were three teams (Miami, Notre Dame, or Alabama) fighting for two at-large playoff seats. The CFP went with Miami and Alabama.
Miami was a no brainer. But putting Alabama in over ND was just criminal. Alabama had three losses and looked awful over the past month, losing to Oklahoma, squeaking by a terrible Auburn team, and getting walloped by Georgia on Saturday. What drove the committee’s decision? Basic SEC bias? Fear of the potential wrath of powerful SEC commissioner Greg Sankey? A five-minute Zoom call with universally loved federal judge and diehard Alabama fan James I. Cohn? These are the questions we want answers to!
