author: JORDAN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Tori K. COLLINS, Defendant-Appellant.
    No. 15-12805
    United States Court of Appeals, Eleventh Circuit.
    (April 26, 2017)

      Alana R. Black, Lori Beranek, Christopher Conrad Bly, John Andrew Horn, Lawrence R. Sommerfeld, U.S. Attorney’s Office, James Butler Cash, Jr., Alston & Bird, LLP, Atlanta, GA, for Plaintiff-Ap-pellee.
    Natasha Perdew Silas, Stephanie A. Kearns, Federal Defender Program, Inc., Atlanta, GA, for Defendant-Appellant.
    Before MARTIN and JORDAN, Circuit Judges, and COOGLER, District Judge.

       Honorable L. Scott Coogler, United States District Judge for the Northern District of Alabama, sitting by designation.

   JORDAN, Circuit Judge:

Tori Collins pled guilty to conspiracy to accept gratuities with the intent to be influenced or rewarded in connection with a bank transaction, in violation of 18 U.S.C. §§ 215 & 371. The district court sentenced Ms. Collins to a two-year term of probation. It also ordered her to pay $251,860.31 to her former employer, Wells Fargo, pursuant to the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A, finding that her conviction qualified as an “offense against property.” Ms. Collins appeals the restitution order, arguing that the MVRA does not apply to her. Ms. Collins also contends that, even if her crime is an “offense against property,” restitution should not have been awarded because her conduct did not proximately cause any losses to Wells Fargo.

We affirm the district court’s order of restitution. Ms. Collins facilitated bank transactions that proximately caused Wells Fargo’s losses, and she intended to derive an unlawful benefit from the property that was the subject of these transactions. She therefore committed an “offense against property” as that phrase is understood in its ordinary and contemporary sense.

I

Ms. Collins worked as a personal banker at a Wells Fargo branch in Atlanta, Georgia. At some point in early 2013, a man named Gerald Mack visited the branch where Ms. Collins worked. Mr. Mack, who introduced himself as G. Shakir, told Ms. Collins that he had friends and clients who wished to open new bank accounts, so Ms. Collins gave him her business card for referrals. Mr. Mack’s story was a lie. In reality, Mr. Mack was in possession of stolen U.S. Treasury checks. His plan was to cash the checks by depositing them in bank accounts and then withdraw the stolen funds, all with the help of bank employees.

Soon after they met, Mr. Mack and Ms. Collins developed a friendship, and he began to ask her to carry out various bank transactions. Although she knew that the transactions violated bank rules, Ms. Collins did as Mr. Mack requested. She opened accounts under the names of either fictitious persons or the intended recipients of the stolen U.S. Treasury checks. Sometimes she added the payees of the checks to preexisting accounts. She also deposited some of the stolen checks for Mr. Mack and, on the day of the deposits or sometime after, withdrew the stolen funds and took them to him. And she deposited and withdrew funds from accounts that had been opened by Brandon Kelly, another bank employee recruited by Mr. Mack. Once, Ms. Collins handed Mr. Mack the proceeds in the parking lot of the bank. In exchange for her help, Mr. Mack paid Ms. Collins $6,000 and gave her a pair of sneakers.

Because Mr. Mack was depositing stolen U.S. Treasury checks, Wells Fargo had to reimburse a number of the intended payees for their losses. All told, Wells Fargo lost $276,714.71 from the accounts that Ms. Collins opened or from which she facilitated withdrawals.

Ms. Collins pled guilty to a single charge of conspiracy in violation of § 371. The object of the conspiracy was the payment and acceptance of gratuities in violation of § 215. The elements of a § 371 conspiracy are an agreement among two or more persons to achieve an unlawful objective; knowing and voluntary participation in the agreement; and the commission of an overt act by a conspirator in furtherance of the agreement. See United States v. Hasson, 333 F.3d 1264, 1270 (11th Cir. 2003). As relevant here, the gratuities provision, § 215(a)(2), prohibits an employee of a financial institution from “corruptly accepting] or agreeing] to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business or transaction of such institution.”

At Ms. Collins’ sentencing hearing, the district court addressed the applicability of the MVRA, which among other things requires restitution for an “offense against property.” See § 3663A(c)(l)(A)(ii). The district court explained that it had “thought hard about whether” it should look to the elements of the offense or, instead, to the specific facts of the case to determine whether Ms. Collins had committed an “offense against property.” See D.E. 26 at 5. Ultimately, the district court decided on a “case-by-case evaluation” of the facts and ruled that the crime fell within the scope of the MVRA because Ms. Collins “was charged with a conspiracy, and that conspiracy was in fact intended to deprive people of property that they owned.” Id. At the conclusion of the sentencing hearing, the district court imposed a two-year term of probation and ordered Ms. Collins to pay $251,860.31 in restitution to Wells Fargo.

II

The legality of the district court’s restitution order is subject to plenary review. See United States v. Valladares, 544 F.3d 1257, 1269 (11th Cir. 2008). The district court’s underlying factual findings, on the other hand,' are reviewed for clear error. See id. A federal district court has no inherent authority to order restitution, and may do so only as explicitly empowered by statute. See id.

III

The “primary and overarching purpose” of the MVRA, enacted in 1996, is to “make victims of crime whole, to fully compensate these victims for their losses and to restore these victims to their original state of well-being.” United States v. Boccagna, 450 F.3d 107, 115 (2d Cir. 2006). When the MVRA applies, restitution is mandatory. See United States v. Martin, 803 F.3d 581, 593 (11th Cir. 2015). A defendant must pay restitution under the MVRA if she is convicted of a certain covered offense “in which an identifiable victim or victims has suffered a physical injury or pecuniary loss.” § 3663A(c)(l)(B). The restitution award must be the full amount of the victim’s loss that was actually and proximately caused by the defendant’s conduct, regardless of the defendant’s current or anticipated ability to pay. See United States v. Huff, 609 F.3d 1240, 1247 (11th Cir. 2010). The MVRA, by its own terms, specifies four types of crimes that trigger mandatory restitution: (1) crimes of violence, as defined in 18 U.S.C. § 16; (2) “offensefs] against property,” including those “committed by fraud or deceit”; (3) offenses related to tampering with consumer products; and (4) offenses relating to theft of medical products. See § 3663A(c)(l)(A).

Ms. Collins argues that her conviction for conspiring to accept bank gratuities does not' constitute an “offense against property” under the MVRA. First, she contends that the district court erred by examining the facts of her case, and urges us to adopt a “categorical approach” which considers only the elements of the offense of conviction. Under that approach, Ms. Collins says, mandatory restitution does not apply because none of the elements of her offense are “against property.” Second, Ms. Collins maintains that, even if we consider her underlying conduct, her receipt of cash gratuities was not an “offense against property” and was not committed through fraud or deceit. Third, Ms. Collins argues that, in any event, she did not proximately cause Wells Fargo’s losses.

A

What, exactly, is an “offense against property” under the MVRA, § 3663A(e)(l)(A)(ii)? That is the question of first impression that confronts us in this appeal.

Although the Supreme Court has addressed some provisions of the MVRA, see, e.g., Robers v. United States, — U.S. —, 134 S.Ct. 1854, 1856, 188 L.Ed.2d 885 (2014) (analyzing § 3663A(b)(l)(B)), it has yet to explain what constitutes an “offense against property” under the Act. Cases from our sister circuits, however, reflect a broad spectrum of opinion.

On the narrower end, some circuits have held that, at the very least, an “offense against property” includes criminal activity with the objective of knowingly and intentionally damaging property. An example is United States v. Quarrell, 310 F.3d 664, 678 (10th Cir. 2002) (holding that the defendants’ conviction for conspiring to violate the Archaeological Resources Protection Act qualified because, though “not every conspiracy will involve an offense against property,” the unlawful objective of the conspiracy at issue was to “illegally excavate public land,” in furtherance of which the defendants “knowingly and voluntarily ... damaged the land”).

Other circuits dispense with the intent requirement, approving mandatory restitution whenever an offense results in physical harm to property. See, e.g., United States v. Sawyer, 825 F.3d 287, 292 (6th Cir. 2016) (holding that the defendant’s conviction for conspiracy to violate the Clean Air Act, a scheme involving the improper demolition of buildings with asbestos-containing material, was an “offense against property” because it “resulted in the asbestos contamination of nearly 300 acres of land”); United States v. Brock-Davis, 504 F.3d 991, 993, 996-98 (9th Cir. 2007) (concluding that the MVRA provided statutory authority, in a case involving a conspiracy to manufacture methamphetamine, to order payment of restitution to “a motel owner for clean-up costs he incurred remediating a motel room in which the defendant had cooked methamphetamine”).

Some circuits, however, have ordered mandatory restitution in cases where there is no physical damage to property. The offenses in those cases have involved the intentional deprivation, or attempted deprivation, of another’s property. See, e.g., United States v. Turner, 718 F.3d 226, 236 (3d Cir. 2013) (holding that a conspiracy to defraud the IRS was an “offense against property” because the defendant had deprived the government of its property, i.e., tax dollars). Cf. Robers, 134 S.Ct. at 1856 (though not directly addressing § 3663A(c) (1) (A)(ii), affirming restitution order under the MVRA for conspiracy to commit wire fraud). Indeed, the Ninth Circuit has specifically rejected the argument that the phrase “ ‘against property’ requires physical damage to property.” See United States v. Luis, 765 F.3d 1061, 1066 (9th Cir. 2014). It has held that the phrase encompasses all criminal conduct that “infring[es] on a victim’s property interest,” id. at 1065, as was the case in United States v. Stephens, 374 F.3d 867, 868, 870-72 (9th Cir. 2004), where it ruled that failing to pay child support qualified because the offense infringed on the other parent’s property interest in the omitted payments.

For our part, we have held, albeit without much explanation, that various types of fraud, and their attendant false or misleading representations, are “offense[s] against property.” See, e.g., United States v. Singletary, 649 F.3d 1212, 1220 (11th Cir. 2011) (wire fraud); Huff, 609 F.3d at 1247 (same); United States v. Dickerson, 370 F.3d 1330, 1335 (11th Cir. 2004) (same).

As the wide range of opinions in these cases illustrates, we lack a conclusive definition. Without a binding directive, we now turn to the statute and apply ordinary rules of statutory construction.

B

Our construction of § 3663A(c)(l)(A)(ii) begins “with the language of the [provision] itself.” United States v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998) (en banc). Where, as here, a statute does not define a term or phrase, those words generally take “their ordinary, contemporary, common meaning ... at the time Congress enacted the statute.” Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979) (citation omitted).

We start with the rather unremarkable observation that “against” is not the same as “relating to” or “concerning.” See Webster’s New World College Dictionary 26, 288,1132 (3d ed. 1996). The latter two (and their synonyms) sweep much more broadly, and would encompass offenses with little more than some connection to property.

This distinction matters because, in the process of reading a statute, it is our “duty ... to give effect, if possible, to every clause and word[,] ... avoiding ... any construction which implies that the legislature was ignorant of the meaning of the language it employed.” Inhabitants of Montclair Twp. v. Ramsdell, 107 U.S. 147, 152, 2 S.Ct. 391, 27 L.Ed. 431 (1883). Indeed, we “must presume that a legislature says in a statute what it means.” Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-54,112 S.Ct. 1146, 117 L.Ed.2d 391 (1992). Had Congress intended § 3663A(c)(l)(A)(ii) to apply to all criminal acts involving property, even if only tangentially, we think it would have said so. But Congress did not, and the more restrictive language employed counsels against an expansive construction of § 3663A(c)(l)(A)(ii).

We believe that a more faithful reading respects the connotation of direet-edness engendered by “against.” See Webster’s New World College Dictionary 26 (3d ed. 1996). Property, therefore, must serve as the object of the offense, not simply a collateral component. See Black’s Law Dictionary 371 (6th ed. 1990) (defining “crime against property” as “a crime, the object of which is property as contrasted with person; e.g., larceny”). At its simplest, this understanding includes offenses in which the defendant intends to damage another’s property, as was the case in Quarrell, 310 F.3d at 678. See Webster’s New World College Dictionary 26 (3d ed. 1996) (defining “against,” in part, as “toward so as to press on or strike”). It also includes situations where the defendant seeks to derive an unlawful benefit from another’s property or otherwise deprive a person of his property, therefore acting “in opposition to” or “contrary to” the classic property rights of ownership and possession. See id. (also defining “against” as “in opposition to; contrary to”). Under any of these readings, however, criminal conduct does not necessarily qualify as an “offense against property” solely because it results in property damage or because someone suffers a loss at some point during its execution.

In our view, the framework of § 3663A supports this interpretation. See Davis v. Michigan Dep’t of Treasury, 489 U.S. 803, 809, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989) (“[T]he words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”). Generally speaking, § 3663A(b) prescribes what an order of restitution must require of a defendant, with subsection (b)(1) specifying that, “in the case of an offense resulting in damage to or loss or destruction of property of a victim,” the defendant must either return the property or pay the victim some amount to compensate for the loss. Equating “offense[s] against property” in subsection (c)(1) to “offense[s] resulting in damage to or loss or destruction of property of a victim” in subsection (b)(1) collapses the two subsections. We do not think that is what Congress intended, for it could have easily used the language in subsection (b)(1) to define the covered offenses.

This construction further harmonizes § 3663A with its discretionary restitution counterpart, 18 U.S.C. § 3663. See Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (directing courts to interpret statutes as part of “a symmetrical and coherent regulatory scheme” and to “fit, if possible, all parts into an harmonious whole”) (citations and internal quotation marks omitted). Under § 3663, courts can impose, on a discretionary basis, restitution for any offense under Title 18 (and other miscellaneous statutes), except that for “an offense described in [§ ] 3663A(e),” the court has no discretion and restitution must be imposed. See § 3663(a)(1)(A).

Significantly, § 3663(b)(1) mirrors § 3663A(b)(l), providing that “in the case of an offense resulting in damage to or loss or destruction of property of a victim,” the defendant “may” be ordered to return the property or pay the victim some amount for the loss. If “offense against property” under § 3663A(c)(l)(A)(ii) means any “offense resulting in damage to or loss or destruction of property,” § 3663(b)(1) would largely be meaningless, because offenses resulting in damage to or loss of property would always be “against property” and never eligible for discretionary restitution. Rather than reading § 3663A(c)(l)(A)(ii) to nullify much of § 3663, our construction allows “the two ... to stand together.” Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union 58 (1868).

Excluding offenses with only incidental property loss is also more consistent with the common-law roots of the phrase “offense against property.” See, e.g., California v. Minjares, 443 U.S. 916, 927, 100 S.Ct. 9, 61 L.Ed.2d 892 (1979) (Rehnquist, J., dissenting) (describing “crimes against person and property” as “the traditional common-law crimes”). When Congress “uses a common-law term of established meaning without otherwise defining it, the general practice is to give that term its common-law meaning.” United States v. Turley, 352 U.S. 407, 411, 77 S.Ct. 397, 1 L.Ed.2d 430 (1957). See generally Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 535 (1947) (“[I]f a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it.”).

At common law, offenses or crimes against property referred to a specific set of criminal conduct: “larceny, embezzlement, cheating, cheating by false pretenses, robbery, receiving stolen goods, malicious mischief, forgery, and uttering forged instruments.” Black’s Law Dictionary 1251 (10th ed. 2014) (defining “offense against property”). Merely damaging or destroying property would not have met the definition for any of these offenses. For example, mahcious mischief, the closest common-law offense for damaging another’s property, required intentional destruction or damage. See id. at 1101. By borrowing from the annals of common law, Congress “presumably ... adopt[ed] the cluster of ideas that were attached,” Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 96 L.Ed. 288 (1952), including the common-law understanding that an “offense against property” is not committed simply because criminal conduct occasions property loss.

The clause “including those committed by fraud or deceit” does not broaden the meaning of “offense against property.” Introduced by the illustrative “including,” the phrase refers to conduct that is a subset of “offense against property,” and not an independent covered offense under the MVRA. See Fed. Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 100, 62 S.Ct. 1, 86 L.Ed. 65 (1941) (“[T]he term ‘including’ is not one of all-embracing definition, but connotes simply an illustrative application of the general principle.”). So, “those [offenses against property] committed by fraud or deceit” must still have property as their object to qualify. See § 3663A(e)(l)(A)(ii) (emphasis added).

C

We next consider the analytical framework district courts should apply to determine whether an offense is against property for purposes of the MVRA. The parties advocate two different approaches. The one advocated by the government and applied by the district court considers the factual circumstances underlying the offense of conviction. The other, urged by Ms. Collins, is the categorical approach, in which courts limit their analysis to the elements of the offense of conviction.

Ms. Collins argues that in United States v. Keelan, 786 F.3d 865 (11th Cir. 2015), we held that the categorical approach governs the determination of whether a crime falls within one of the MVRA’s enumerated categories. In our view, she overstates our holding in Keelan. The defendant in Keelan, who had been convicted of knowingly using means of interstate commerce to persuade a minor to engage in sexual activity, challenged the district court’s order of restitution pursuant to § 3663A(c)(l)(A)(i), which provides for mandatory restitution for any offense that is a “crime of violence, as defined in [§ ] 16.” See Keelan, 786 F.3d at 869-70. We had previously applied the categorical approach to determine whether a conviction qualifies as a crime of violence under § 16. See Dixon v. U.S. Att’y Gen., 768 F.3d 1339, 1342-43 (11th Cir. 2014). And because § 3663A(c)(l)(A)(i) defines “crime of violence” by explicit reference to § 16, we applied the categorical approach to determine whether the Keelan defendant’s offense was a “crime of violence” for purposes of § 3663A(c)(l)(A)(i). See Keelan, 786 F.3d at 869-72.

Here, however, the MVRA does not define “offense against property” by referring to another statute, and we have never considered whether to apply the categorical approach to determine whether an offense qualifies as an “offense against property” in any context. As a result, Keelan does not resolve whether sentencing courts must apply the categorical approach to determine whether an offense was an “offense against property” for purposes of § 3663A(c)(l)(A)(ii). We must decide that issue for the first time here.

The text of § 3663A(c)(l)(A)(ii) persuades us to reject the categorical approach in this context. The provision uses language that the Supreme Court has previously said suggests consideration of the underlying conduct. In Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the Court was tasked with defining “burglary” under the sentencing enhancement provisions of the Armed Career Criminal Act, 18 U.S.C. § 924(e), and setting forth the method by which sentencing courts were to determine whether a defendant’s prior state-law burglary conviction qualified for the enhancement. Relying in part on the word “element” in § 924(e), the Court ultimately decided that, with rare exception, sentencing courts should apply the categorical approach, looking “only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions.” See Taylor, 495 U.S. at 600-01, 110 S.Ct. 2143. In adopting the categorical approach, the Court also relied on the fact that § 924(e) refers to a person who “has three previous convictions” for certain types of crimes, and not to a person who has “committed” those crimes. Id. The Court, in other words, believed that the word “committed” would have served as a congressional directive to sentencing courts to consider the underlying conduct. See id. And so, describing a covered offense in terms of how it was “committed” suggests consideration of the underlying conduct, without which we could not know how an offense was actually committed or carried out.

Unlike § 924(e), § 3663A(c)(l)(A)(ii) does not define an “offense against property” by referring to the “elementfs]” of the offense. Further, it describes an “offense against property” by reference to how it was “committed” — specifically, it specifies that an “offense against property” “include[s] any offense committed by fraud or deceit.” 18 U.S.C. § 3663A(c)(l)(A)(ii). We agree with the premium the Supreme Court placed on the word “committed” and the absence of the word “element,” and we therefore decline to apply the categorical approach to determine whether a conviction qualifies as an “offense against property” under § 3663A(c)(l)(A)(ii).

Our decision today to eschew the categorical approach puts us in line with a number of decisions by our sister courts, which, though not expressly discussing the issue, have focused on the conduct underlying the offense of conviction instead of the elements of the crime. See, e.g., Luis, 765 F.3d at 1065-66; United States v. Pescatore, 637 F.3d 128, 138-39 (2d Cir. 2011); Quarrell, 310 F.3d at 678.

D

With a definition and analytical framework in hand, we now turn to the question of whether Ms. Collins committed an “offense against property.” In cases such as this one, where the conviction is for conspiracy, we focus on the offense that was the object of the unlawful scheme. See Singletary, 649 F.3d at 1220 (looking to the “objects of the conspiracy” to determine the applicability of the MVRA). The unlawful conduct here was that Ms. Collins, as an “employee ... of a financial institution,” “corruptly accepted] or agree[d] to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business or transaction of such institution.” See § 215(a)(2). Ms. Collins’ predicate offense, in so many words, was the illegal acceptance of gratuities.

We have previously noted that there may be a question about whether bribery is an “offense against property” under the MVRA. See United States v. McNair, 605 F.3d 1152, 1221 n.107 (11th Cir. 2010). As with bribery, it is not readily apparent to us that a gratuities offense will always trigger mandatory restitution under the MVRA. For example, there may be situations where the government establishes criminal liability under § 215(a)(2) without demonstrating that any improperly influenced transaction implicated someone else’s property.

We need not address all variants of a gratuities offense because, in this case, the evidence demonstrates that Ms. Collins sought to derive an unlawful benefit from the property at play in the bank transactions she corruptly facilitated. Specifically, Ms. Collins admitted that she withdrew $69,000 from a bank account for Mr. Mack. See D.E. 25 at 42-44. At the time of the withdrawal, that money belonged to Wells Fargo. See Shaw v. United States, — U.S. —, 137 S.Ct. 462, 466, 196 L.Ed.2d 373 (2016) (explaining that a bank owns the deposited funds). By accepting Mr. Mack’s cash payment in connection with transactions such as this one, Ms. Collins intentionally derived an unlawful pecuniary gain by taking property belonging to Wells Fargo, thereby making her gratuities offense an “offense against property.” Cf. Black’s Law Dictionary 454 (10th ed. 2014) (defining “crime against property” as an “offense[ ] in which the perpetrator seeks to derive an unlawful benefit from ... another’s property without the use or threat of force”).

E

Almost as an afterthought, Ms. Collins contends that, to the extent she committed an “offense against property,” she did not proximately cause Wells Fargo’s losses. She devotes most of her briefing on this issue to rehashing her arguments on the proper analytical approach. See Br. of Appellant at 19-21. When she finally gets around to the causation analysis, she argues, in one conclusory paragraph with no explanation, that Wells Fargo’s losses stemmed from Ms. Mack’s fraud and “perhaps from [her] ... witting or unwitting assistance,” but not from her acceptance of gratuities. See id. at 21. Though her failure to fully brief this issue arguably constitutes abandonment, see Auto-Owners Ins. Co. v. Se. Floating Docks, Inc., 632 F.3d 1195, 1201 n.7 (11th Cir. 2011) (explaining that some “arguments ... are so concluso-ry that they are deemed abandoned”), we address it anyway.

Under the MVRA, sentencing courts must order restitution for a victim’s “actual loss directly and proximately caused by the defendant’s offense of conviction.” United States v. Sharma, 703 F.3d 318, 323 (5th Cir. 2012). The “[defendant's conduct need not be the sole cause of the loss,” but it cannot be “too attenuated (either factually or temporally).” United States v. Robertson, 493 F.3d 1322, 1334 (11th Cir. 2007) (citations omitted). Here, the government proved that Wells Fargo’s loss “would not have occurred but for” Ms. Collins’ conduct. Id. The question, then, is whether Ms. Collins’ actions proximately caused Wells Fargo’s losses. The district court found that they did, see D.E. 26 at 4-15, and we review this factual finding for clear error. See Robertson, 493 F.3d at 1334.

We have addressed proximate causation in the MVRA context before. In United States v. Washington, 434 F.3d 1265, 1266 (11th Cir. 2006), the defendant robbed a bank and fled. Several police cars were damaged in the ensuing chase. The district court ordered the defendant to pay the police department restitution for the property damage. See id. at 1266-68. On appeal, the defendant did not dispute that the MVRA applied to his bank robbery conviction, but he argued that his offense was not the proximate cause of the police department’s property damage. See id. at 1268. We rejected this argument and affirmed the order of restitution because flight was a natural component of bank robbery and because the defendant could have foreseen that any ensuing high-speed chase would result in property damage. See id. at 1268-69.

Wells Fargo’s losses here were even more foreseeable than the police department’s in Washington, where at least the defendant could not have known with certainty that various police cars would be damaged. By contrast, Wells Fargo having to reimburse its customers for the fraud enabled by its own employee was the natural — if not inevitable — consequence of Ms. Collins’ actions. Moreover, Ms. Collins directly facilitated Mr. Mack’s scheme by processing the withdrawals of the funds on his behalf. She even physically effectuated some of Wells Fargo’s losses by walking money out the bank’s doors, allaying any concern that those losses were “too [physically or temporally] attenuated.” See Robertson, 493 F.3d at 1334. Given Ms. Collins’ role as a bank employee, we do not believe that the district court clearly erred in finding that she could have reasonably foreseen Wells Fargo’s losses.

IV

For these reasons, we affirm the district court’s order of restitution under the MVRA.

AFFIRMED.

      . Although Wells Fargo suffered $276,714.71 in losses, the district court reduced the restitution figure by $24,854.40. Ms. Collins argued that when she began helping Mr. Mack open accounts and make withdrawals, she did not immediately know that he was depositing. stolen U.S. Treasury checks. See D.E. 26 at 5-15. The government supported her position, see id. and the district court agreed to subtract the losses Wells Fargo sustained due to the earliest transactions of the conspiracy.

      . For purposes of the MVRA, the words "offense” and "crime” are essentially interchangeable. The MVRA itself cross-references the two words. Compare § 3663A(a)(l) (requiring courts to order restitution when "a defendant [is] convicted of an offense described in subsection (c)”), with § 3663A(c) (explaining that mandatory restitution applies to “any offense” that is "a crime of violence, as defined in [§ ] 16,” which, in turn, defines "crime of violence” as “an offense” with certain characteristics).

      . The presence or absence of the word "element” in a statute does not, on its own, resolve the issue here. Indeed, we have applied the categorical approach in cases where the federal sentencing statute makes no mention of "elements.” See, e.g., United States v. James, 430 F.3d 1150, 1154 (11th Cir. 2005) (applying the categorical approach to determine whether a particular offense is a "serious drug offense” under the ACCA).


source: Caselaw Access Project

author: RESTANI, Judge:

license: Public Domain

text:
    Ryan PERRY, Plaintiff-Appellant, v. CABLE NEWS NETWORK, INC., Delaware corporation, CNN Interactive Group, Inc., a Delaware corporation, Defendants-Appellees.
    No. 16-13031
    United States Court of Appeals, Eleventh Circuit.
    (April 27, 2017)

      Ryan D. Andrews, Rafey Balabanian, Courtney C. Booth, Jay Edelson, James Dominick Larry, John Aaron Lawson, Roger Perlstadt, Benjamin H. Richman, Edelson, PC, Chicago, IL, Jennifer Auer Jordan, The Jordan Firm, LLC, Atlanta, GA, for Plaintiff-Appellant.
    Marc J. Zwillinger, Jonathan S. Frankel, Jeffrey G. Landis, ZwillGen, PLLC, Washington, DC, Alan W. Bakowski, James Andrew Lamberth, Troutman Sanders, LLP, Atlanta, GA, Clinton Earl Cameron, Trout-man Sanders, LLP, Chicago, IL, for Defendant-Appellee.
    Alan Jay Butler, Electronic Privacy Information Center, Washington, DC, for Amicus Curiae.
    Before WILSON and BLACK, Circuit Judges, and RESTANI, Judge.

       Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation.

   RESTANI, Judge:

Appellant Ryan Perry' (“Perry”) appeals the district court’s dismissal of his complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The district court held that Perry failed to state a claim under the Video Privacy Protection Act (“VPPA”) both because Perry is not a statutory “consumer” and the information at issue is not “personally identifiable information.” The district court also reasoned that Perry’s proposed amendments to his complaint would be futile. We affirm.

BACKGROUND

According to Perry’s complaint, Appel-lee Cable News Network, Inc. is a producer of news programming for television. Cable News Network, Inc. along with its subsidiary Appellee CNN Interactive Group, Inc. (collectively, “CNN”) offer media content on a mobile software application (or “app”), and Perry alleges that CNN’s proprietary app (the “CNN App”) is available for download on mobile devices, including on Apple, Inc. (“Apple”)’s iPhone. Through the CNN App, users can get breaking news alerts, follow stories, and watch video clips and coverage of live events.

The CNN App. may be downloaded through the Apple iTunes Store. The CNN App never seeks the user’s consent to disclose the user’s personal data to any third parties. Perry, who is a citizen of Illinois, began using the CNN App in early 2013 on his iPhone. He never consented to allow CNN to disclose his personally identifiable information.

Perry alleges that the CNN App, without a user’s knowledge, both tracks the user’s views of news articles and videos and also collects a record of this viewing activity. When a user closes the CNN App, CNN sends the collected record of viewing activity to a company called Bango, a third party company that conducts data analyt-ics. CNN also sends Bango a media access control address (“MAC address”), which is a unique string of numbers associated with a particular user’s specific mobile device.

Bango then uses the MAC address to link an internet user’s unique device identifier to the user’s other internet activity in order to understand the user’s online behavior. Bango constructs a digital file related to the user’s online behavior by accessing information available to Bango from an extensive range of networks and devices. Bango is able to compile personal information, including the user’s name, location, phone number, email address, and payment information, and it can attribute this information to a single user across different devices and platforms.

On February 18, 2014, Perry filed a proposed class action in the district court. In his first amended complaint, Perry sets forth one cause of action for violation of the VPPA, 18 U.S.C. § 2710. Perry seeks injunctive relief and both statutory and punitive damages due to CNN’s allegedly unlawful disclosures of personally identifiable information.

Following this court’s opinion in Ellis v. Cartoon Network, Inc., 803 F.3d 1251 (11th Cir. 2015), in which we affirmed the dismissal of a complaint bringing similar allegations pursuant to the VPPA, Perry, sought leave of the district court to amend his complaint. On April 20, 2016, the district court granted CNN’s motion to dismiss the amended complaint, reasoning that further amendment to the complaint would be futile. Perry appeals.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction of this appeal pursuant to 28 U.S.C. § 1291. We review de novo the issue of whether a party has standing. Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245, 1251 (11th Cir. 2015). We also review de novo a district court’s decision to deny leave to amend for futility. Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007) (per curiam).

DISCUSSION

I. Standing

CNN argues Perry has not alleged a legally cognizable injury in the light of the Supreme Court’s decision in Spokeo, Inc. v. Robins, — U.S. —, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016) because Perry’s alleged violation of a statutory right is not on its own sufficiently concrete.

Federal jurisdiction is circumscribed by the case or controversy requirement of Article III of the Constitution, essential to which is the doctrine of standing. U.S. Const, art. III, § 2, cl. 1; Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). To demonstrate standing, a “plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, 136 S.Ct. at 1547. An injury in fact is both “concrete and particularized” as well as “actual or imminent, not conjectural or hypothetical[J” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).

In Spokeo, the Supreme Court vacated the decision of the Court of Appeals and remanded the issue of whether a plaintiff sufficiently alleged a concrete injury where the plaintiff claimed a statutory violation of the Fair Credit Reporting Act (“FCRA”). 136 S.Ct. at 1545-46. The plaintiff alleged that a website had published inaccurate information about him. Id, at 1544. The Supreme Court emphasized that in addition to being particularized, intangible injuries, including statutory violations, must still be concrete. Id, at 1548 (“A ‘concrete’ injury must be ‘de facto’; that is, it must actually exist.”). The Supreme Court stated that “both history and the judgment of Congress play important roles” in determining whether an intangible harm is concrete, explaining that “it is instructive to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts.” Id. at 1549. The Supreme Court held that the plaintiff there had only alleged a “bare procedural violation” of the FRCA because the violation, on its own, may not cause any harm or present a material risk of harm. Id. at 1550.

Perry has established his standing to file this action because his alleged injury is sufficiently concrete. Although Perry does not allege any additional harm beyond the statutory violation, the Supreme Court has made clear that our analysis does not end there. See Spokeo, 136 S.Ct. at 1549. Instead, “the violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact” so that “a plaintiff in such a case need not allege any additional harm beyond the one Congress has identified.” Id.; see also Havens Realty Corp. v. Coleman, 455 U.S. 363, 373, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) (instructing that injury in fact “may exist solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing....’” (quoting Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975))).

The structure and purpose of the VPPA supports the conclusion that it provides actionable rights. Subject to certain exceptions, the VPPA prohibits the wrongful disclosure by a video tape service provider of video tape rental or sale records. 18 U.S.C. § 2710. It creates a cause of action for “[a]ny person aggrieved by any act of a person in violation of this section.” 18 U.S.C. § 2710(c)(1). The statute was enacted in response to a newspaper’s publication of Supreme Court nominee Judge Robert H. Bork’s video rental history from a particular store, and it seeks “‘to preserve personal privacy with respect to the rental, purchase, or delivery of video tapes or similar audio visual materials....’” Ellis, 803 F.3d at 1252-53 (quoting 134 Cong. Rec. S5396-08, S. 2361 (May 10, 1988)). We conclude that violation of the VPPA constitutes a concrete harm. See In re Nickelodeon, 827 F.3d 262, 274 (3d Cir. 2016) (“While perhaps ‘intangible,’ the harm is also concrete in the sense that it involves a clear de facto injury, ⅛ the unlawful disclosure of legally protected information.”).

Indeed, the VPPA’s creation of a cause of action for this type of an invasion of privacy “has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts.” Spokeo, 136 S.Ct. at 1549. Since the early 1900s, “the existence of a right of privacy [has been] recognized in the great majority of the American jurisdictions that have considered the question.” Restatement (Second) of Torts § 652A cmt. a. (Am. Law Inst. 1977); see also U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 763, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (“[B]oth the common law and the literal understandings of privacy encompass the individual’s control of information concerning his or her person.”). Further, in the tort of intrusion upon seclusion, “[t]he intrusion itself makes the defendant subject to liability, even though there is no publication or other use,” meaning a showing of additional harm is not necessary to create liability. Restatement (Second) of Torts § 652B cmt. b (emphasis added). The VPPA is similar but subjects a video service provider to liability only when that provider actually discloses the consumer’s personal information. Supreme Court precedent has recognized in the privacy context that an individual has an interest in preventing disclosure of personal information. See Reporters Comm. for Freedom of the Press, 489 U.S. at 762, 109 S.Ct. 1468 (“[C]ases sometimes characterized as protecting ‘privacy’ have in fact involved ... the individual interest in avoiding disclosure of personal matters, .... ” (quoting Whalen v. Roe, 429 U.S. 589, 598-600, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977))). Accordingly, we hold that a plaintiff such as Perry has satisfied the concreteness requirement of Article III standing, where the plaintiff alleges a violation of the VPPA for a wrongful disclosure.

II. Video Privacy Protection Act

Although Perry concedes that his complaint fails to state a claim under the VPPA, he argues that the district court erred in denying leave to amend. Specifically, Perry argues that, if permitted, he would amend his complaint to. “allege that in addition to downloading the CNN App and viewing CNN content on his iPhone, he also subscribed to CNN’s television channel through his cable package.” Perry also contends that CNN’s transmission of his MAC address and video history is “personally identifiable information” as defined in the VPPA.

The VPPA generally prohibits “[a] video tape service provider [from] knowingly disclosing], to any person, personally identifiable information concerning any consumer of such provider.” 18 U.S.C. § 2710(b). The statute defines “consumer” as “any renter, purchaser, or subscriber of goods or services from a video tape service provider[.]” Id. § 2710(a)(1). In interpreting the term “subscriber,” we have previously said that the term requires some sort of “ongoing commitment or relationship between the user and the entity which owns and operates the app.” Ellis, 803 F.3d at 1257.

The district court properly held that Perry’s attempt to amend his corn-plaint is futile. Our decision in Ellis controls and requires the conclusion that Perry is not a “subscriber” within the meaning of the VPPA because Perry has failed to sufficiently plead new allegations that would distinguish his case from Ellis. Similar to the situation here, in Ellis, a plaintiff alleged that he was a subscriber of a Cartoon Network free mobile app where he viewed videos on the app and Cartoon Network sent his viewing history and his mobile device identification number to Bango without the plaintiffs consent. 803 F.3d at 1253-54. We held that the plaintiff there was not a “subscriber,” reasoning that “downloading an app for free and using it to view content at no cost is not enough to make a user of the app a ‘subscriber’ under the VPPA.... [S]uch a user is free to delete the app without consequences whenever he likes, and never access its content again.” Id. at 1257.

By the same token, Perry is not a subscriber of CNN because he has not demonstrated an ongoing commitment or relationship with CNN. Just as the plaintiff in Ellis, Perry did not “sign up for or establish an account with” CNN, “provide any personal information to” CNN, “make any payments” to CNN in using its app, “become a registered user” of CNN or its app, “receive a [CNN] ID,” “establish a [CNN] profile,” “sign up for any periodic services or transmissions,” nor “make any commitment or establish any relationship that would allow him to have access to exclusive or restricted content.” Id. Perry, through his proposed amendment regarding his cable television subscription, attempts to address the aforementioned factors in Ellis by claiming that he received some exclusive or restricted content on the CNN App based on his relationship with his cable television provider and that he made payments to CNN.

Perry’s proposed amendment, however, shows a commitment to only his cable television provider, rather than to CNN. First, Perry contends that because of his television subscription he is able to access “certain features” on the CNN App that a typical CNN App user cannot. From Perry’s cursory explanation, it appears that he accesses these features due to his status as a subscriber of his cable television provider. The only example of a feature that Perry provides is that a user of the CNN App can watch live television on the CNN App, if the user has a cable television subscription, selects their cable service provider in the CNN App, and signs in using their credentials for an online account that the user maintains with their cable television provider. But, Perry’s choice to watch CNN live on the CNN App (after logging in) rather than on his television does not somehow convert him into a subscriber of CNN. Again, Perry can access this live television on the CNN App solely because of his separate relationship with his cable television provider, as is clear by the fact that Perry has to select his cable television provider, that Perry uses the credentials associated with his cable television provider’s account (not a separate CNN account), and that the content available on his television and on the CNN App appear to be the same. Notably, a person, who has not downloaded the CNN App, but has a subscription to the same cable television provider could access the same content as Perry on his or her television. Yet, that person would not be a subscriber of CNN. Outside of downloading the CNN App and perhaps acknowledging in the app that he has a cable television subscription, there is no indication that Perry has engaged CNN in any other way in order to gain access to this exclusive feature. This is insufficient to create the requisite “ongoing commitment or relationship” with CNN. Ellis, 803 F.3d at 1256-57 (describing a subscription as involving “some type of commitment, relationship, or association (financial or otherwise) between a person and an entity”).

Second, Perry’s argument that CNN indirectly receives a monetary benefit by virtue of Perry’s direct payments to his cable television provider similarly misses the mark. Perry’s distinct financial relationship with his cable television provider does not shed light on his commitment to CNN because, for instance, if his cable television provider removed CNN from Perry’s cable package, it would not affect Perry’s ability to use the CNN App for free video content.

Perry’s citation to the First Circuit’s decision in Yershov v. Gannett Satellite Information Network, Inc., 820 F.3d 482 (1st Cir. 2016) does not alter our holding. Not only are we bound by our decision in Ellis, the reasoning with which the First Circuit appears to take some issue, but also Yershov is distinguishable. There, the First Circuit distinguished Ellis by noting that the plaintiff in Yershov, in order to use the app at issue, provided his mobile device identification number and GPS location to the proprietor of the app. Id at’ 489. That fact was sufficient to “establish a relationship” with the proprietor of the app. Id. In the present case, however, Perry admitted before the district court that he was never required to register for the CNN App, even stating that the CNN App did not request his email address, his credit card number, or his GPS location. Perry, therefore, did not actively provide his personal information to CNN in exchange for the CNN App nor has he demonstrated that he manifested his relationship with and commitment to CNN in any meaningful way.

We decide that the ephemeral investment and commitment associated with Perry’s downloading of the CNN App on his mobile device, even with the fact that he has a separate cable television subscription that includes CNN content, is simply not enough to consider him a “subscriber” under Ellis. Perry still “is free to delete the app without consequences whenever he likes, and never access its content again.” Ellis, 803 F.3d at 1257. Accordingly, the district court correctly determined that Perry’s cable subscription as described is not the something “more” under Ellis necessary to state a claim under the VPPA. Id. at 1258. At most, the cable subscription shows that Perry is a subscriber of his cable television provider. Having concluded that the district court did not err in concluding that Perry is not a “subscriber” as defined by the VPPA such that CNN may be held liable, we need not address the second prong for liability under the VPPA, whether CNN provided Perry’s “personally identifiable information” to a third party.

CONCLUSION

F.or the reasons stated above, the judgment of the district court is

AFFIRMED.

      . The Restatement defines this tort as follows: "[o]ne who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” Restatement (Second) of Torts § 6S2B. It provides examples, including the "opening [of a plaintiff’s] private and personal mail, searching his safe or his wallet, [and] examining his private bank account.” Id. § 652B cmt. b.

      . For the reasons stated above, we deny CNN's motion to dismiss this appeal and Perry’s subsequent motion for sanctions.

      . Perry limits his appeal to arguing that he is a ''subscriber” as described in 18 U.S.C. § 2710(a)(1). We limit our discussion accordingly.

      . Before us and the district court, Perry has provided few specific details about his proposed allegation or the contents of his cable subscription. Therefore, although he is entitled to reasonable inferences, such inferences may logically derive only from factual allegations actually made. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”). We conduct our review accordingly.

      .Perry does not state a cause of action against his cable television service provider. Although his only claim is an alleged violation of the VPPA, he makes no allegation that his cable television provider is a “video service provider” within the meaning of the VPPA. See 18 U.S.C. § 2710(a)(4). And, in any event, it appears that the conduct of his cable television provider in this context is governed by another law. See 47 U.S.C. § 551(c) (discussing a cable operator's duty to not disclose personally identifiable information subject to certain exceptions); see also 47 U.S.C. § 338(i)(4)(A) (providing a similar duty for satellite carriers).

      . Perry claims instead that he was “de facto registered” as apps, in general, are unique because their proprietors can automatically access personal data on a user's mobile device. Perry’s argument, which rests on the assumption that, upon download, a proprietor of an app gains access to a wealth of personal information belonging to a user, would require the conclusion that every app user is a subscriber. This is so because the exchange of this personal information necessarily occurs, in Perry’s view, with the download and normal use of an app. But, such a broad definition of subscriber would squarely conflict with our holding in Ellis by eliminating the condition that a subscriber have an "ongoing commitment or relationship” with the app’s proprietor. See 803 F.3d at 1257.


author: O’MALLEY, Circuit Judge.

text:
    PHIL-INSUL CORP., DBA IntegraSpec, Plaintiff-Appellant v. AIRLITE PLASTICS CO., Formtech, LLC, Defendants-Appellees
    2016-1982
    United States Court of Appeals, Federal Circuit.
    Decided: April 17, 2017

      Paul Adams, The Adams Law Firm, Albuquerque, NM, argued for plaintiff-appellant.
    Louis DiSanto, Banner & Witcoff, Ltd., Chicago, IL, argued for defendants-appel-lees. Also represented by Jon 0. Nelson.
    Before O’MALLEY, BRYSON, and WALLACH, Circuit Judges.
   O’MALLEY, Circuit Judge.

Phil-Insul Corp. d/b/a IntegraSpec (“In-tegraSpec”) filed suit against Airlite Plastics Co. and Formtech, LLC (collectively, “Airlite”) alleging infringement of U.S. Patent No. 5,428,933 (“the ’933 Patent”), which relates to insulating concrete forms (“ICFs”) that are used in the construction of buildings. Airlite moved for summary judgment of noninfringement, arguing that IntegraSpec’s claims are precluded by our decision in a prior action. In that case, IntegraSpec asserted claims from the same patent against different defendants with similar products. There, after construing the claims, the district court granted summary judgment of noninfringement, and subsequently granted the parties’ stipulated request for a Rule 54(b) certification for immediate appeal. IntegraSpec timely appealed, challenging only the district court’s claim construction. We summarily affirmed the district court’s final judgment without an opinion. Phil-Insul Corp. v. Reward Wall Sys., Inc., 580 Fed. Appx. 907 (Fed. Cir. 2014).

In this case, Airlite argued that Integ-raSpec’s infringement claims are the same as the infringement claims it asserted and lost in Reward Wall and that Airlite’s accused products have the same design as the products found noninfringing in that prior litigation. The district court agreed, and granted Airlite’s motion for summary judgment of noninfringement. Phil-Insul Corp. v. Airlite Plastics, Co., No. 8:12-cv-151, 2016 WL 5107131 (D. Neb. Mar. 2, 2016) (“Decision on Appeal”). Because we agree that IntegraSpec’s claims are barred by collateral estoppel, we affirm.

I. Background

A. The ’933 Patent

IntegraSpec is the assignee of record for the ’933 Patent, which originally issued on July 4, 1995. The ’933 Patent underwent two ex parte reexaminations before the United States Patent & Trademark Office (“PTO”): one that concluded on September 21, 2010, and another that concluded on July 14, 2014.

The ’933 Patent is directed to ICFs, which are expanded polystyrene foam blocks used as molds to cast concrete walls. The ICFs are stacked to form a hollow wall which is then filled with concrete. The ICFs remain in place after the concrete sets to serve as insulation for the building. The ICFs consist of two parallel foam panels that form sidewalls. The top and bottom edges of the sidewalls have interconnecting means used to connect one ICF to another when they are stacked.

Figure 1, shown below, illustrates a preferred embodiment of an ICF having interconnecting means (16) that include two rows of projections (18) and recesses (20) on the top and the bottom edges of each panel/sidewall (10 & 12):

The specification explains that, unlike prior art ICFs, which had to be arranged in a specific way for interconnection, the claimed ICFs are designed to permit interconnection “with like blocks or panels in a bi-directional and/or reversible manner.” ’933 Patent, col. 1, 11. 8-13. Because the claimed ICFs can be stacked in a number of ways, they are “easier to interconnect” and installation can proceed at a faster pace and with less waste because the bidirectional and reversible design avoids orientation restrictions. Id. at col. 1, 11. 38-48.

As originally issued, claim 1 was directed to ICFs where the interconnecting means on the top and bottom edges of each panel “comprise[d] at least two rows of alternating projections and recesses ... wherein said recess of one row is adjacent said projection of the other row.” ’933 Patent, col. 6, 11. 11-15. Claim 2, as originally issued, claimed “[a]n insulating construction member according to claim 1, wherein said member is an insulating construction block.” Id. at col. 6,11. 23-25.

After the first reexamination, Claim 1 provided as follows:

In a bi-directional and reversible insulating construction member having substantially planar ends and top and bottom edges and interconnecting means on said top and on said bottom edges, the improvement wherein each said top interconnecting means and each said bottom interconnecting means has a pattern, each pattern comprising at least two longitudinally extending rows of alternating, continuous, immediately adjacent projections and recesses, extending continuously along the entire length of said top and bottom edges, the end projection in one row flush with at least a portion of one of said end planes, within each said pattern each of said projections and recesses in each one of said at least two rows within said pattern being of substantially the same dimension, wherein within each said pattern said recess of one row is adjacent said projection of the other row, and wherein said interconnecting means patterns on said top and bottom edges are the same and are offset arranged such that said recess of one row in said pattern on said top edge is opposed to said projection of an opposite row in said pattern on said bottom edge; whereby said insulating construction member can be interconnected with a like member in a bi-directional and reversible manner.

Ex Parte Reexamination Certificate for U.S. Patent No. 5,428,933 issued Sept. 21, 2010 (“First Reexam Cert.”) at col. 1, 11. 26-47 (emphases added).

Claim 2 was amended as follows:

An insulating construction member according to claim 1, wherein said member is an insulating construction block comprising two panels, each of said panels having a pattern on the top and bottom edges, each of said patterns on 'each of said panels comprising at least one longitudinally extending row of alternating, continuous, immediately adjacent projections and recesses and each of said projections and each of said recesses within each said pattern in said at least one row being of substantially the same dimension.

Id. at col. 1,11. 49-57 (emphasis added).

Independent Claim 19 was added in the first ex parte reexamination. Claim 19 contains the same “adjacent” requirement present in Claim 1.

The PTO issued a second ex parte reexamination certificate in 2014. As a result .of that reexamination, claims 1, 3, 6-10, and 24 were cancelled. Ex Parte Reexamination Certificate for U.S. Patent No. 5,428,-933 issued Jul. 14, 2014 (“Second Reexam Cert.”) at col. 1. The patentability of claims 2, 4, 5, 11, 13-16, 19-23, and 25-27 was confirmed, however. Id.

B. The Reward Wall Litigation

In February 2011, IntegraSpec filed suit against multiple defendants — including Reward Wall Systems, Inc. (“Reward Wall”) and Nudura Corporation (“Nudura”) — alleging infringement of the ’933 Patent. The parties filed a joint motion for early claim construction, indicating that two independent claims were at issue — Claim 1 and Claim 19. The parties requested that the district court construe three claim terms found in both claims, two of which are relevant to this appeal: “adjacent” and “substantially the same dimension.” Joint Motion for Early Claim Construction at 2, Phil-Insul Corp. v. Reward Wall Sys., Inc., No. 8:12-cv-91 (D. Neb. Nov. 22, 2011), ECF No. 79. The parties agreed that these limitations should be construed the sanie way in both claims. Id.

The district court conducted a Markman hearing in June 2012, and issued its claim construction order soon thereafter. In relevant part, the court construed the term “adjacent” to mean “next to ... on the same panel or sidewall.” Phil-Insul Corp,. v. Reward Wall Sys., Inc., No. 8:12-cv-91, 2012 WL 2958233, at *7 (D. Neb. July 19, 2012). Looking at the prosecution history, the court found that the patentee added the limitation “at least two rows” in Claim 1 to distinguish it from prior art that disclosed an ICF block with one row of alternating projections and recesses on each sidewall. Id. at *9. The court recognized that, although Claim 2 “discloses a construction block on which each panel may have only one row of projections and recesses,”' it would be inconsistent with the specification and the prosecution history to construe “adjacent” in Claim 1 to encompass an ICF block having only one row. Id. at *9, n.13. The district court construed “substantially the same dimension” to mean “the same measurable length, breadth, area and volume, with only minor variations in dimension of up to about 10%.” Id. at *11.

Following the district court’s claim construction, the defendants in Reward Wall separately moved for summary judgment of noninfringement. The district court issued two decisions finding that the accused products did not infringe the claims of the ’933 Patent, either literally or under the doctrine of equivalents.

In the first, the district court addressed whether the accused ICFs contained the “adjacent” limitation. Phil-Insul Corp. v. Reward Wall Sys., Inc., No. 8:12-cv-91, 2012 WL 5906546, *4 (D. Neb. Nov. 26, 2012). With respect to the Nudura ICFs, IntegraSpec did not argue that the products literally infringed, but instead asserted infringement under the doctrine of equivalents. Id. at *5 (“IntegraSpec does not contend that the accused Nudura ICFs or the accused Reward Wall ICFs literally infringe the ’933 Patent.”). Looking to the prosecution history, the court found that there was a narrowing amendment that limited the scope of the patent such that an ICF with less than two rows of alternating projections and recesses on a given panel or sidewall cannot infringe. Id. at *6-7. Given this amendment, the court concluded that “prosecution history precludes an ICF with one row of projections and recesses on a panel or sidewall ... from infringing the ’933 Patent under the doctrine of equivalents.” Id. at *8. Because it was undisputed that the Nudura ICFs had only one row of alternating projections and recesses on a given panel, the court found that the Nudura ICFs did not infringe the asserted claims — which included Claim 2— as a matter of law. Id.

In the second decision, the district court addressed whether the accused ICFs contained the “substantially the same dimension” limitation. IntegraSpec conceded that, given the court’s construction of this limitation, it could not argue that the accused Reward Wall ICFs literally infringed the ’933 Patent. Phil-Insul Corp. v. Reward Wall Sys., Inc., No. 8:12-cv-91, 2013 WL 4774726, *5 (D. Neb. Sept. 5, 2013). Indeed, it was undisputed that the Reward Wall iForm ICFs included “projections and/or recesses that differ in dimension by at least twice the 10% threshold specified in the court’s construction of the limitation ‘substantially the same dimension.’ ” Id. at *14. As such, the only issue was whether the Reward Wall ICFs infringed under the doctrine of equivalents. Looking to the prosecution history, the court found that, “to gain issuance of the ’933 Patent, [IntegraSpec] limited its claims to ICFs with projections and recesses having ‘the same measurable length, breadth, area, and volume.’ ” Id. at *12. Given this concession, the court found that “IntegraSpec is estopped from asserting that ICFs with a row of projections and recesses that do not each have the same measurable length, breadth, area, and volume contain equivalents of the ‘substantially the same dimension’ limitation.” Id. The court concluded, therefore, that the Reward Wall iForm ICFs did not infringe as a matter of law.

Given the district court’s decisions entering summary judgment of noninfringement, the parties stipulated to jointly request certification for immediate appeal under Rule 54(b) of the Federal Rules of Civil Procedure. The court granted the parties’ request and entered final judgment in favor of the defendants.

IntegraSpec appealed the district court’s final judgment to this court, challenging only the court’s construction of the terms “adjacent” and “dimension.” Decision on Appeal, 2016 WL 5107131, at *5 (“On appeal, IntegraSpec challenged only the court’s claim construction, specifically, the construction of the terms ‘adjacent’ and ‘dimension.’ ”). IntegraSpec did not challenge any of the issues determined in the district court’s noninfringement decisions. Id.

After briefing on appeal, b'ut before oral argument, the PTO issued the second ex parte reexamination certificate, confirming the patentability of Claims 2, 4, 5, 11, 13-16, 19-23, and 25-27. Id. IntegraSpec filed an unopposed motion requesting that this court take judicial notice of the results of the reexamination proceedings. We granted that motion on September 22, 2014. Order, Phil-Insul Corp. v. Reward Wall Sys., Inc., No. 14-1078 (Fed. Cir. Sept. 22, 2014), ECF No. 65. The court heard oral argument on October 7, 2014, and summarily affirmed the district court’s judgment pursuant to Federal Circuit Rule 36. Phil-Insul Corp. v. Reward Wall Sys., Inc., 580 Fed.Appx. 907 (Fed. Cir. 2014).

C. Procedural History

IntegraSpec filed its complaint against Airlite in May 2012, while the Reward Wall action was pending. Specifically, In-tegraSpec accused two separate lines of Airlite products of infringement: the Fox Block ICFs and the Fox Block 1440 ICFs. IntegraSpec alleged that the Fox Block ICFs infringed Claims 2 and 5 of the ’933 Patent. Decision on Appeal, 2016 WL 5107131, at *1 n.3. It was undisputed that, like the Nudura ICFs found to be nonin-fringing in Reward Wall — the Fox Block ICFs have only one row of alternating projections and recesses on the top and bottom edges of each sidewall. Id.

IntegraSpec also alleged that the Fox Block 1440 ICFs infringed Claims 2, 4, 5, 19, and 27 of the ’933 Patent. Id. IntegraS-pec did not dispute that — like the Reward Wall iForm ICFs found noninfringing in Reward Wall — the Fox Blocks 1440 ICFs include projections that do not have the same measurable length, breadth, area, and volume, and that the differences are greater than 10%. Id.

Given the overlap of issues, Airlite filed a motion to stay this case pending the outcome of the second ex parte reexamination and the resolution of the Reward Wall litigation. The district court granted that motion in part, and stayed- proceedings pending the outcome of the reexamination. Order, Phil-Insul Corp. v. Airlite Plastics, Inc., No. 8:12-cv-151 (D. Neb. Oct. 18, 2012), ECF No. 35. The parties thereafter agreed that the case should remain stayed pending resolution of the Reward Wall appeal.

After this court issued its decision in Reward Wall, the district court lifted the stay, and IntegraSpec moved for claim construction. Specifically, IntegraSpec asked the court to construe “adjacent” and “substantially the same dimension.” Airlite opposed that motion on collateral estoppel grounds, but nonetheless responded to In-tegraSpec’s proposed constructions.

Airlite subsequently moved for summary judgment of noninfringement based on collateral estoppel. Therein, Airlite argued that IntegraSpec’s infringement claims against Airlite’s accused products are indistinguishable from the claims asserted against the defendants in Reward Wall. Airlite also argued that there are no material differences between the products found noninfringing in Reward Wall and its accused products. According to Airlite, because this court affirmed the claim construction of the “adjacent” and “dimension” limitations, those constructions are binding on IntegraSpec for collateral es-toppel purposes.

In response, IntegraSpec argued that: (1) it did not have a full and fair opportunity to litigate the issues in Reward Wall because it now alleges infringement of Claim 2, rather .than Claim 1; (2) the district court’s claim construction in Reward Wall was incorrect; and (3) “the defense of collateral estoppel is not available in this case because the claim construction was not essential to the court’s noninfringement rulings.” Decision on Appeal, 2016 WL 5107131, at *6. According to IntegraSpec, the district court’s claim construction in Reward Wall created an “irreconcilable conflict between Claims 1 and 2.” Id. at *7.

On March 2, 2016, the district court granted Airlite’s motion for summary judgment based on collateral estoppel. First, the court explained that the patent claims at issue contain the same “adjacent” and “dimension” terms that were construed in Reward Wall. Id. at *9. “The construction of those terms was dispositive of the' issue of non-infringement in that case.” Id. Although IntegraSpec alleges that Airlite infringes Claim 2, rather than Claim 1, and argues that Claim 2 was not considered in Reward Wall, it conceded to the district court that Claim 2 contains all of the limitations of the now-cancelled Claim 1. Id.

Next, the court found that all of the elements for collateral estoppel were satisfied for both the claim construction and noninfringement issues presented. Specifically, the court found that IntegraSpec had a “full and fair opportunity to litigate” the claim constructions in Reward Wall and that the court’s construction of those terms resulted in a finding of noninfringement. Id. The court further found that: (1) the infringement issues in this case are “essentially indistinguishable” from those in Reward Wall; and (2) the accused Airlite products have the same design as the products found noninfringing in Reward Wall. Id. at *9-10.

IntegraSpec timely appealed the district court’s final judgment to this court. We have jurisdiction under 28 U.S.C. § 1295(a)(1).

II. Standard of Review

We review a grant of summary judgment under the law of the regional circuit. Grober v. Mako Prods., Inc., 686 F.3d 1335, 1344 (Fed. Cir. 2012). The Eighth Circuit reviews a grant of summary judgment de novo. Wilson v. Spain, 209 F.3d 713, 716 (8th Cir. 2000). Summary judgment is appropriate if “the mov-ant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

III. Discussion

Collateral estoppel “precludes a plaintiff from relitigating identical issues by merely ‘switching adversaries’ ” and prevents a plaintiff from “asserting a claim that the plaintiff had previously litigated and lost against another defendant.” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 329, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979) (citation omitted). Because the application of general collateral estoppel principles is not within the exclusive jurisdiction of this court, we apply the law of the circuit in which the district court sits. Aspex Eyewear, Inc. v. Zenni Optical Inc., 713 F.3d 1377, 1380 (Fed. Cir. 2013).

In the Eighth Circuit, the application of collateral estoppel is a question of law reviewed de novo on appeal. Robinette v. Jones, 476 F.3d 585, 588 (8th Cir. 2007). Collateral estoppel requires five elements:

(1) the party sought to be precluded in the second suit must have been a party, or in privity with a party, to the original lawsuit; (2) the issue sought to be precluded must be the same as the issue involved in the prior action; (3) the issue sought to be precluded must have been actually litigated in the prior action; (4) the issue sought to be precluded must have been determined by a valid and final judgment; and (5) the determination in the prior action must have been essential to the prior judgment.

Id. at 589 (citation omitted).

Federal Circuit precedent applies, however, to aspects of the collateral estoppel analysis that are particular to patent law. Aspex Eyewear, 713 F.3d at 1380 (“[F]or any aspects that may have special or unique application to patent cases, Federal Circuit precedent is applicable.”). Under this court’s precedent, “an infringement claim in a second suit is the ‘same claim’ as in an earlier infringement suit if the accused products in the two suits are ‘essentially the same.’ ” Roche Palo Alto LLC v. Apotex, Inc., 531 F.3d 1372, 1379 (Fed. Cir. 2008) (citation omitted). “Accused products are ‘essentially the same’ where the differences between them are merely colorable or unrelated to. the limitations in the claim of the patent.” Id.

Applying this framework, the district court found each of the collateral estoppel criteria satisfied for the claim construction and the noninfringement issues presented in this case. With respect to claim construction, the court found that: (1) Integ-raSpec was a party in Reward Wall; (2) the construction of the “adjacent” and “substantially the same dimension” claim terms were issues in the prior case; (3) construction of those terms was “actually litigated” in Reward Wall; (4) the claim constructions became final when we affirmed them on appeal; and (5) the claim constructions were essential to the nonin-fringement judgments in Reward Wall. Decision on Appeal, 2016 WL 5107131, at *9.

With respect to noninfringement, the court explained that the infringement issues IntegraSpec litigated in Reward Wall are “substantively the same” as those presented here. Id. Specifically, the court found that the noninfringement issues regarding the accused products in Reward Wall were fully and fairly litigated in that proceeding; those determinations were essential to the final judgment of nonin-fringement; and the judgment of nonin-fringement was final because it was not appealed. Id. In addition, the district court found that Airlite’s accused products do not infringe the ’933 Patent “for the same reasons stated in connection with the,accused Nudura ICFs and Reward Wall [iForm] ICFs in Reward Wall.” Id. at *10. In reaching this conclusion, the court noted that the accused products in this case have the same design as the products found not to infringe in Reward Wall. Id.

IntegraSpec submits that two of the collateral estoppel requirements are at issue on appeal: whether there was a valid and final judgment and whether the determination in the prior action was “essential” to the prior judgment. Appellant’s Reply 5-6. In particular, IntegraSpec argues that the district court erred when it: (1) gave collateral estoppel effect to a Rule 36 judgment; (2) relied on the oral argument transcript from the Reward Wall appeal; and (3) failed to construe Claim 2. We address each argument in turn.

A. Rule 36 and Collateral Estoppel

IntegraSpec’s primary argument on appeal is that a Rule 36 judgment can never serve as a basis for collateral estoppel. We disagree.

Federal Circuit Rule 36 provides that:

The court may enter a judgment of affir-mance without opinion, citing this rule, when it determines that any of the following conditions exist and an opinion would have no precedential value:
(a) the judgment, decision, or order of the trial court appealed from is based on findings that are not clearly erroneous;
(b) the evidence supporting the jury’s verdict is sufficient;
(c) the record supports summary judgment, directed verdict, or judgment on the pleadings;
(d) the decision of an administrative agency warrants affirmance under the standard of review in the statute authorizing the petition for review; or
(e) a judgment or decision has been entered without an error of law.

Fed. Cir. R. 36. As we have explained on several occasions, “[ajppeals whose judgments are entered under Rule 36 receive the full consideration of the court, and are no less carefully decided than the cases in which we issue full opinions. The Rule permits the court to dispense with issuing an opinion that would have no precedential value, when the circumstances of the Rule exist.” U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1556 (Fed. Cir. 1997).

A Rule 36 summary affirmance is a valid and final judgment of this court. See Taylor v. McKeithen, 407 U.S. 191, 194 n.4, 92 S.Ct. 1980, 32 L.Ed.2d 648 (1972) (‘We, of course, agree that the courts of appeals should have wide latitude in their decisions of whether or how to write opinions. That is especially true with respect to summary affirmances.”). We have explained that, because there is no opinion, “a Rule 36 judgment simply confirms that the trial court entered the correct judgment.” Rates Tech., Inc. v. Mediatrix Telecom, Inc., 688 F.3d 742, 750 (Fed. Cir. 2012). “It does not endorse or reject any specific part of the trial court’s reasoning.” Id. That said, we have also expressly recognized that a Rule 36 disposition can be used “in support of a claim of ‘claim preclusion, issue preclusion, judicial estoppel, law of the case, and the like.’” Id. (quoting Fed. Cir. R. 32.1(c)).

The Supreme Court likewise has recognized that a summary affirmance has binding precedential effect, but it “extends no further than ‘the precise issues presented and necessarily decided by those actions.’ ” Anderson v. Celebrezze, 460 U.S. 780, 786 n.5, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983) (“A summary disposition affirms only the judgment of the court below, and no more may be read into our action than was essential to sustain that judgment.”). As such, the Court\ias said that summary affirmances only “prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions.” Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977). Consistent with this approach, our internal operating procedures provide that “Rule 36 judgments shall not be employed as binding precedent by this court, except in relation to a claim of res judicata, collateral estoppel, or law of the case[.]” Fed. Cir. Internal Operating Procedure No. 9 ¶ 8 (Nov. 14, 2008). Accordingly, it is clear that a Rule 36 affirmance is a binding judgment for collateral estoppel purposes.

IntegraSpec argues that our decision in TecSec, Inc. v. International Business Machines Corp., 731 F.3d 1336 (Fed. Cir. 2013) created a new rule: that a Rule 36 summary affirmance cannot have preclu-sive effect. We disagree. Indeed, a careful reading of that decision reveals that it supports application of estoppel in this case.

In TecSec, TecSec accused IBM and several other defendants of infringement. The district court severed TecSec’s claims against IBM and stayed proceedings against the other defendants. Id. at 1340. IBM filed a motion for summary judgment of noninfringement. The district court granted IBM’s motion on two separate and independent grounds. Specifically, the court found that: (1) TecSec failed to present sufficient evidence of direct and indirect infringement; and (2) TecSec failed to show that IBM’s software met various claim limitations, as construed. Id. at 1342. TecSec appealed the district court’s judgment to this court, challenging both of the court’s determinations. After oral argument, we affirmed the district court’s judgment without opinion pursuant to Rule 36. TecSec, Inc. v. IBM, 466 Fed.Appx. 882 (Fed. Cir. 2012).

On remand, proceedings against the other defendants remained, and TecSec stipulated that it could not prove infringement under the claim construction adopted in the IBM proceedings. Based on that stipulation, the district court entered judgment of noninfringement in favor of the defendants. TecSec appealed that judgment to this court. On appeal, the defendants argued that, under the mandate rule and collateral estoppel, the Rule 36 affirmance in the IBM appeal precluded TecSec from reasserting its claim construction arguments. TecSec, 731 F.3d at 1341. TecSec responded that collateral estoppel did not apply because the district court’s claim constructions were not “necessary to the final judgment, which rested on multiple, independent grounds.” Id. at 1343. Because this court could have affirmed on either ground, TecSec argued that claim construction was not actually determined in the IBM appeal and was therefore not necessary to the Rule 36 affirmance.

We agreed with TecSec that collateral estoppel did not apply. Although the district court stated that its claim constructions were “strictly necessary” to resolving the parties’ summary judgment motions, we found that the court’s judgment based on TecSec’s failure of proof was independent of the court’s construction. Id. at 1344. Because claim construction was “neither actually determined by nor critical and necessary to our summary affirmance in the IBM appeal,” we found that collateral estoppel did not preclude TecSec’s challenge. Id.

In TecSec, we reiterated that “Rule 36 judgments only affirm the judgment of the lower tribunal. ‘[A] Rule 36 judgment simply confirms that the trial court entered the correct judgment. It does not endorse or reject any specific part of the trial court’s reasoning.’ ” Id. at 1343 (quoting Rates Tech., 688 F.3d at 750). Citing this language, IntegraSpec argues that a Rule 36 affirmance can never give rise to collateral estoppel. But we expressly rejected IntegraSpec’s proposed rule in TecSec. Specifically, we made clear that “[h]ad claim construction been the only issue in the IBM appeal, and had that claim construction been essential to sustaining the judgment of noninfringement, the preclusive, effect of our Rule 36 judgment would have been undeniable.” Id.

Despite IntegraSpec’s arguments to the contrary, TecSec did not create a categorical ban against asserting a Rule 36 judgment for collateral estoppel purposes. Instead, it stands for the proposition that collateral estoppel cannot apply where the appellate court affirmed, without explanation, the judgment of a trial court that “determined two issues, either of which could independently support the result,” because it is not known which issue was “necessary” to the final appellate judgment. Id. at 1343-44. TecSec is therefore consistent with the principle that, for es-toppel to apply, there must be no uncertainty as to whether the precise issue was raised and determined in the prior suit. De Sollar v. Hanscome, 158 U.S. 216, 221, 15 S.Ct. 816, 39 L.Ed. 956 (1895) (“[I]t is of the essence of estoppel by judgment that it is certain that the precise fact was determined by the former judgment.”).

Unlike the situation in TecSec, here it is clear that the prior panel actually and necessarily adopted the district court’s claim constructions when it affirmed the judgments in Reward Wall. In the Reward Wall appeal, IntegraSpec raised only two issues of claim construction: (1) the “adjacent” limitation; and (2) the “substantially the same dimension” limitation. Decision on Appeal, 2016 WL 5107131 at *5. The former construction supported the district court’s November 26, 2012 noninfringement judgment as to the accused Nudura ICFs, and the latter supported the court’s September 5, 2013 noninfringement judgment as to the accused Reward Wall iForm ICFs. Neither of the claim constructions on appeal could have independently supported both noninfringement judgments. Therefore, our Rule 36 affir-mance in Reward Wall necessarily meant that we found no error in either of the district court’s claim constructions.

As the district court explained, the claim constructions affirmed on appeal in Reward Wall were essential to the non-infringement determinations therein. Id. at *9. IntegraSpec did not raise on appeal issues adjudicated in the district court’s noninfringement decisions. “An issue that falls within the scope of the judgment appealed from but is not raised by the appellant in its opening brief on appeal is necessarily waived. Unless remanded by this court, all issues within the scope of the appealed judgment are deemed incorporated within the mandate and thus are precluded from further adjudication.” Engel Indus., Inc. v. Lockformer Co., 166 F.3d 1379, 1383 (Fed. Cir. 1999) (citing United States v. Russ, 861 F.2d 184, 185 (8th Cir. 1988)). Accordingly, the noninfringement determinations in Reward Wall are final for collateral estoppel purposes by virtue of IntegraSpec’s failure to appeal them.

Although the district court in this case blended its analysis of collateral es-toppel as to the claim construction and noninfringement issues, we find no error in the court’s ultimate conclusion as to either issue. First, we agree with the district court that the claim constructions from Reward Wall are entitled to preclusive effect. The court correctly concluded that IntegraSpec was a party in Reward Wall, the “adjacent” and “substantially the same dimension” claim terms were construed in Reward Wall, construction of those terms was “actually litigated” in that case, the claim constructions became final when we affirmed them on appeal, and the claim constructions were essential to the nonin-fringement judgments. Decision on Appeal, 2016 WL 5107131, at *9. Because the record reveals that IntegraSpec had a full and fair opportunity to litigate the meaning of the terms “adjacent” and “dimension” — the same terms at issue here — it is bound by those constructions.

The district court also found that IntegraSpec’s infringement claims in this case are the same as the infringement claims it litigated and lost in Reward Wall. In reaching this conclusion, the district court found that Airlite’s accused Fox Blocks ICFs have the same design of only one row of projections and recesses on the top and bottom edges of each sidewall as the Nudura ICFs that were found not to infringe the “adjacent” limitation in Reward Wall. Id. Likewise, the court concluded that the accused Fox 1440 ICFs in this case have the same design of projections that differ in volume by greater than 10% as the Reward Wall ICFs that were adjudicated in Reward Wall to not infringe the “substantially same dimension” limitation of Claim 1. Id. at *10. IntegraSpec does not challenge these determinations on appeal. Nor could it, given that counsel for IntegraSpec conceded during argument to the district court that there was “no substantial difference” between the Nudura ICFs found noninfringing in Reward Wall and the Fox Blocks ICFs accused of infringement here. Transcript of Proceedings at 75:5-76:12, Phil-Insul Corp. v. Airlite Plastics, Co., No. 8:12-cv-151 (D. Neb. July 31, 2015), ECF. No. 73.

The district court noted that In-tegraSpec did not propound “any argument or evidence on the substantive issue of noninfringement.” Decision on Appeal, 2016 WL 5107131, at *10 n.13. On appeal, IntegraSpec concedes that the determination of no literal infringement in Reward Wall was based on the court’s claim construction, but maintains that its claim for infringement under the doctrine of equivalents was not. It is well established, however, that an infringement analysis is a two-step process. The court must: (1) determine the scope and meaning of the patent claims asserted; and (2) compare the properly construed claims to the allegedly infringing device. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454 (Fed. Cir. 1998) (en banc). IntegraSpec fails to explain how the determinations of nonin-fringement under the doctrine of equivalents in Reward Wall were allegedly made without reference to claim construction. Accordingly, we find IntegraSpec’s arguments with respect to the doctrine of equivalents unpersuasive.

On this record, and given IntegraSpec’s concession that the accused products in this case are substantially the same as those at issue in Reward Wall, we find no error in the district court’s conclusion that Airlite’s accused products do not infringe the ’933 Patent.

B. The Reward Wall Appellate Record

Next, IntegraSpec argues that the district court did not understand the appellate record in Reward Wall and misrepresented the oral argument transcript. According to IntegraSpec, the district court here relied almost entirely on what was said about claim construction at the oral hearing, but failed to recognize that two judges on the panel “doubted that the district court construction made sense.” Appellant Br. at 22. We disagree.

As noted, the district court correctly determined that the only issues IntegraS-pec raised on appeal in Reward Wall were the construction of the “adjacent” and “substantially the same dimension” limitations. The court cited IntegraSpec’s opening brief on appeal in Reward Wall in support of this determination. Decision on Appeal, 2016 WL 5107131, at *5. The court also noted that the audio recording of the oral argument in Reward Wall confirmed that IntegraSpec did not challenge the noninfringement determinations in that appeal. Id. at *5 n.8. The district court did not err in citing these sources to confirm the scope of what was at issue in Reward Wall. That the panel of judges in the Reward Wall appeal appeared to challenge the appellee during oral argument does not establish that they doubted the district court’s claim construction. The fact remains that the panel issued a Rule 36 affirmance. Accordingly, IntegraSpec’s interpretation of the oral argument in Reward Wall is irrelevant.

C. Claim Construction of Claim 2

IntegraSpec also argues that Claim 2 must be construed in this case because it was not at issue in Reward, Wall. According to IntegraSpec, the district court in Reward Wall only construed Claims 1 and 19, and its construction of the term “adjacent” in Claim 1 created an irreconcilable conflict with Claim 2.

Airlite responds that IntegraSpec asserted infringement of Claim 2 — not Claim 1 — against the Nudura ICFs in Reward Wall. Airlite also argues that the disputed claim terms in this case — “adjacent” and “substantially the same dimension” — were at issue in Reward Wall, and the court considered and rejected IntegraSpec’s claim construction arguments in that case.

We agree with Airlite. In Reward Wall, the parties jointly requested early claim construction of certain claim terms found in both Claim 1 and Claim 19 of the ’933 Patent. Decision on Appeal, 2016 WL 5107131, at *3. Because the parties selected the claims and the claim terms to be construed, IntegraSpec’s suggestion that the district court overlooked and failed to construe other claims is without merit. As the district court explained, the patent claims at issue here contain the same “adjacent” and “dimension” terms that the court construed in Reward Wall. Id. at *9. Although Reward Wall involved Claims 1 and 19, IntegraSpec conceded to the district court in this case that Claim 2 contains all of the same limitations of Claim 1, which was cancelled during reexamination. Id. The court found that those claim terms were dispositive of the issue of nonin-fringement in Reward Wall.

At oral argument, counsel for In-tegraSpec argued that, although the same terms appear in Claims 1 and 2, those terms can be construed differently between the two claims. Oral Argument at 10:52-11:00, available at http:// oralarguments.cafc.uscourts.gov/default. aspx?fl=2016-1982.mp3 (“So you are saying that the exact same language could be construed differently? In the context of a different claim, yes.”). It is well-established, however, that claim terms are to be construed consistently throughout a patent. Rexnord Corp. v. Laitram Corp., 274 F.3d 1336, 1342 (Fed. Cir. 2001) (“Furthermore, a claim term should be construed consistently with its appearance in other places in the same claim or in other claims of the same patent.”).

In any event, the district court considered and rejected IntegraSpec’s claim construction arguments in Reward Wall, and we affirmed the court’s constructions on appeal. We decline IntegraSpec’s request to reeonstrue those terms now. IntegraS-pec’s arguments were either made or could have been made in Reward Wall, and they cannot preclude the application of estoppel in this case.

IV. Conclusion

For the foregoing reasons, we affirm the district court’s judgment of noninfringement.

AFFIRMED

      . Although the mandate rule was at issue in TecSec, it is not at issue in this appeal, and is therefore not discussed herein.

      . We recognize that circuits are split on the related but different question of whether alternative holdings that are each independently sufficient to support a judgment can be given preclusive effect. See Jean Alexander Cosmetics, Inc. v. L'Oreal USA, Inc., 458 F.3d 244, 251-52 (3d Cir. 2006) (collecting cases and noting "no consensus among the courts of appeals”). The Courts of Appeals for the Second, Third, Ninth, and Eleventh Circuits generally give preclusive effect to independent alternative holdings. See Gelb v. Royal Globe Ins. Co., 798 F.2d 38, 45 (2d Cir. 1986) ("The general rule in this Circuit is that 'if a court decides a case on two grounds, each is a good estoppel.’ " (quoting Irving Nat’l Bank v. Law, 10 F.2d 721, 724 (2d Cir. 1926))); Jean Alexander Cosmetics, 458 F.3d at 255 ("Thus, we will follow the traditional view that independently sufficient alternative findings should be given preclusive effect.”); In re Westgate-Cal. Corp., 642 F.2d 1174, 1176-77 (9th Cir. 1981) (following the "established rule” that estoppel applies even where a court "rests its judgment alternatively upon two or more grounds”); Deweese v. Palm Beach, 688 F.2d 731, 734 (11th Cir. 1982) ("Normally, each alternative basis would form an independent ground for collateral estoppel.... In this case, however, the existence of alternative grounds makes the application of offensive collateral estoppel problematic.”).

        The Fourth, Seventh, and Tenth Circuits have declined to give independently sufficient alternative holdings preclusive effect. See In re Microsoft Corp. Antitrust Litig., 355 F.3d 322, 328 (4th Cir. 2004) ("if a judgment in the prior case is supported by either of two findings, neither finding can be found essential to the judgment”); Peabody Coal Co. v. Spese, 117 F.3d 1001, 1008 (7th Cir. 1997) (en banc) ("Holdings in the alternative, either of which would independently be sufficient to support a result, are not conclusive in subsequent litigation with respect to either issue standing alone.”); Turney v. O’Toole, 898 F.2d 1470, 1472 n.1 (10th Cir. 1990) (noting that, where a petition for writ gave two reasons for relief, either of which would be sufficient, and the order granting the writ did not explain its reasoning, the writ had no preclusive effect). Because the Reward Wall proceedings did not involve independent alternative holdings, either below or on appeal, we need not address this split in authority.