author: BLACK, Circuit Judge:

text:
    BROWN JORDAN INTERNATIONAL, INC., BJI Holdings, LLC, Brown Jordan Services, Inc., Brown Jordan Company, Plaintiffs-Appellees, v. Christopher CARMICLE, Defendant-Appellant. Christopher Carmicle, Plaintiff-Appellant, v. BJI Holdings, LLC, Brown Jordan International, Inc., Brown Jordan Services, Inc., Gene J. Moriarty, Vincent A. Tortorici, Jr., et al., Defendants-Appellees.
    No. 16-11350
    United States Court of Appeals, Eleventh Circuit.
    (January 25, 2017)

      Lloyd B. Chinn, Proskauer Rose, LLP, New York, NY, Júrate Schwartz, Allan H. Weitzman, Proskauer Rose, LLP, Boca Raton, FL, Daniel J. Davis, Proskauer Rose, LLP, Washington, DC, for Plaintiffs-Appellees and Defendants-Appelles.
    Glenn Alan Cohen, Lynn M. Watson, Seiller Waterman, LLC, Louisville, KY, Daniel Frederick Blonsky, Susan E. Raffa-nello, Coffey Burlington, PL, Miami, FL, for Defendant-Appellant.
    Before MARCUS and BLACK, Circuit Judges, and COHEN, District Judge.

       Honorable Mark Howard Cohen, United States District Judge, for the Northern District of Georgia, sitting by designation.

   BLACK, Circuit Judge:

This case arises out of Christopher Car-micle’s termination from Brown Jordan in early 2014. The parties filed cross-complaints, and the two cases were consolidated. After granting summary judgment in favor of Brown Jordan on some of Carmi-cle’s claims, the district court conducted an 11-day bench trial and entered judgment on behalf of Brown Jordan. Carmicle appeals, raising issues regarding the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030, the Stored Communications Act (SCA), 18 U.S.C. § 2701, wrongful discharge, and breach of an employment agreement.

We affirm the district court. Carmicle’s CFAA arguments fail because Brown Jordan suffered “loss” as defined in the CFAA. As to his SCA issues, Carmicle waived his unopened-versus-opened-email argument because he did not fairly present it to the district court, and Brown Jordan showed Carmicle exceeded his authorization in accessing the emails of other Brown Jordan employees. Lastly, the district court did not err in granting summary judgment on Carmicle’s wrongful discharge claim or in concluding that Carmi-cle was terminated for cause as defined by the Employment Agreement.

I. BACKGROUND

A. Factual Background

Carmicle began working for Brown Jordan in 2002. Carmicle rose swiftly through the ranks at Brown Jordan, the parent company of a number of entities engaged in the manufacture and sale of furniture for residential and commercial use. By 2005, Carmicle was responsible for the national accounts of Brown Jordan, which soon after led to his responsibility for a Brown Jordan subsidiary, Brown Jordan Services. According to Brown Jordan, Car-micle was never formally appointed as president of Brown Jordan Services, but was permitted to use the title as a “customer facing accommodation.”

When Gene Moriarty became CEO of Brown Jordan, Moriarty requested Carmi-cle enter into an Executive Employment Agreement with Brown Jordan. The November 1, 2005 agreement solidified the terms of Carmicle’s employment and is the only written employment agreement between Carmicle and Brown Jordan. Carmi-cle subsequently entered into Profits Interest Agreements with Brown Jordan, pursuant to which Carmicle acquired a profits interest in BJI Holdings, LLC, subject to the Agreements’ vesting and forfeiture provisions.

Moriarty testified that he and others began to have doubts about Carmicle around 2011. Indication that Carmicle had been incurring excessive entertainment expenses began to appear. It was also discovered that Carmicle’s wife was on Brown Jordan’s payroll and Carmicle himself approved her salary. After a stern warning about these actions, Moriarty gave Carmi-cle a second chance. Moriarty also gave Carmicle greater responsibility making him responsible for Brown Jordan Company, another Brown Jordan subsidiary, in addition to Brown Jordan Services.

In 2013, Moriarty learned that Carmicle had breached his trust again by incurring more unauthorized expenses. As far as Moriarty was concerned, Carmicle had blown his second chance. Moriarty was ready to terminate Carmicle’s employment for cause.

However, Moriarty was persuaded not to pursue termination at that time. In the spring of 2013, Brown Jordan’s Board of Directors decided to hire an investment bank and offer Brown Jordan for sale. Brown Jordan would be sold as a whole to a single buyer, or alternatively, the commercial and consumer businesses would be divided and offered to separate purchasers. In the event Brown Jordan were sold separately, Moriarty would likely remain with the commercial business and Carmi-cle would remain with the consumer business, so Moriarty would no longer have to work with Carmicle and the buyer of the consumer business would have the benefit of continuity. Moriarty ultimately agreed that it was best not to terminate Carmi-cle’s employment while Brown Jordan was offered for sale.

In the meantime, Moriarty, Brown Jordan’s CFO, and Brown Jordan’s General Counsel decided to pursue a management buyout (MBO) of the commercial business. In connection with seeking lending to finance the MBQ, they prepared a financial model that differed from that prepared by Brown Jordan’s investment bank for potential outside buyers.

In the summer of 2013, Brown Jordan began a transition from one email service to another. To assist in that transition, Brown Jordan’s Chief Information Officer provided a generic password—Pass-wordi—to Brown Jordan employees and instructed each to. test his or her new email account with that password.

Carmicle testified that he was suspicious that a subordinate employee he considered difficult to manage was communicating directly with Moriarty, and that both were lying to Carmicle about a personnel issue. This prompted Carmicle to use the generic password to access their accounts and read their emails. From there, Carmicle’s behavior began to snowball. Carmicle repeatedly accessed the email accounts of other employees, including his superiors, with the generic password and used his personal iPad to take screenshots of hundreds of emails over the next six months. Along the way, Carmicle learned about the MBO and the second financial model. Car-micle also learned that Brown Jordan’s CFO was scrutinizing his expenses.

As 2014 began, it became clear that Brown Jordan Services and Brown Jordan Company had not performed well. Brown Jordan’s Board of Directors was scheduled to meet in early 2014, and the. poor performance of Brown Jordan Services and Brown Jordan Company were on the agenda. In an attempt to save his job, Carmicle wrote a letter to Brown Jordan’s Board of Directors in January of 2014, accusing Moriarty and others of various illegal and fraudulent activities, including their preparation of a second financial model to the detriment of shareholder value in an attempt to secure the consumer business through an MBO.

Concerned about Carmicle’s accusations, and because Carmicle had expressed a fear of retaliation, the Board of Directors hired an independent investigator. During the investigation - into Carmicle’s allegations, Carmicle revealed to the investigator that he had learned much of the information contained in his letter by accessing others’ email accounts. The investigator ultimately concluded Carmicle’s allegations were entirely without merit, and reported that fact to the Board of Directors. The investigator also reported Carmicle’s email access and the fact Carmicle had used in excess of $100,000.00 in Brown Jordan funds for unauthorized entertainment expenses. When the Board of Directors met in February 2014, they decided that Carmicle’s employment should be terminated for cause.

On February 17, 2014, Moriarty met with Carmicle and informed him of the decision to terminate his employment for cause. Carmicle demanded that he be permitted to take his personal laptop with him when he left, but was told it would not be returned to him until Carmicle proved he had used his own funds to purchase the laptop. As soon as he returned home, Car-micle used the “Find My iPhone” application to remotely lock a different laptop owned by Brown Jordan, rendering it inaccessible. Carmicle claimed he intended to lock his personal laptop, and inadvertently locked the Brown Jordan-owned laptop. Carmicle also claims to have subsequently lost the personal iPad with which he had taken screenshots of emails, and was therefore unable to produce it during the course of discovery.

B. Procedural Background

On March 11, 2014, Brown Jordan filed its initial Complaint against Christopher Carmicle in the Southern District of Flori-da, asserting, among other things (1) violation of the CFAA; (2) violation of the SCA; and (3) a declaration that Carmicle’s termination amounted to “cause” under them written employment agreement.

Ten days later, Carmicle filed his initial complaint against Brown Jordan in Kentucky state court. He asserted numerous claims, but only two claims are at issue on appeal (1) wrongful termination, and (2) breach of contract. Carmicle’s complaint was removed to federal court and transferred to the Southern District of Florida. The two cases were then consolidated.

The district court denied both Carmi-cle’s motion to dismiss and for partial summary judgment as to Brown Jordan’s CFAA and SCA claims, and granted Brown Jordan’s motion for summary judgment on several claims, including Carmi-cle’s wrongful termination claim.

The court then conducted an 11-day bench trial. In a lengthy memorandum opinion, the district court concluded Car-micle’s employment was terminated for cause (and that therefore Carmicle was not entitled to any profits interest or severance pay) due to his improper access of other employees’ email accounts. The district court also concluded the access of the email accounts violated the CFAA and SCA.

II. DISCUSSION

A Computer Fraud and Abuse Act

Carmicle appeals the district court’s conclusion that he violated the CFAA. Carmi-cle contends the evidence established Brown Jordan suffered no loss as it is defined in the CFAA because he caused no damage to Brown Jordan’s computer system and there was no “interruption of service.” The loss Brown Jordan claims it incurred stems from a payment to an outside consultant, Crowe Horwath, to assess how Carmicle accessed the emails, and a payment to a contractor, Kroll, to sweep the office building for audio and video surveillance devices. Based on these payments, the district court found Brown Jordan sustained a “loss” within the meaning of the CFAA and awarded Brown Jordan damages.

Carmicle asserts there are two reasons that the alleged damages do not meet the CFAA’s definition of “loss”: (1) Brown Jordan’s “loss” did not stem from an “interruption of service;” and (2) Brown Jordan admits there was no damage to its computers and it paid no money to remedy such damage—specifically the fee Brown Jordan paid Crowe Horwath was unnecessary, and the fee Brown Jordan paid Kroll to sweep its building for surveillance does not relate to Brown Jordan’s computers at all and is not a compensable loss under the CFAA.

1. Interruption of Service

Whether Carmicle violated the CFAA is a mixed question of law and fact, which we review de novo. Reynolds v. McInnes, 338 F.3d 1201, 1211 (11th Cir. 2003). To the extent this issue involves the interpretation of the CFAA, it is a question of law we review de novo. Vista Mktg., LLC v. Burkett, 812 F.3d 954, 962 (11th Cir. 2016).

“Whoever ... intentionally accesses a computer without authorization or exceéds authorized access, and thereby obtains ... information from any protected computer” violates the CFAA. 18 U.S.C. § 1030(a)(2)(C). “A civil action for a violation of this section may be brought only if the conduct involves 1 of the factors set forth in subclauses (I), (II), (III), (IV), or (V) of subsection (c)(4)(A)(i).” 18 U.S.C. § 1030(g) (emphasis added). Subclause (I), applicable to the instant case, permits an action only if the plaintiff incurs a minimum “loss” of $5,000 as a result of the defendant’s violation of the CFAA. 18 U.S.C. § 1030(c)(4)(A)(i)(I). The CFAA provides that:

the term “loss” means any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offenses, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service.

18 U.S.C. § 1030(e)(ll).

The interpretation of “loss” as defined by 18 U.S.C. § 1030(e)(ll) is an issue of first impression in our Circuit. “As with any question of statutory interpretation, we begin by examining the text of the statute to determine whether its meaning is clear.” Harry v. Marchant, 291 F.3d 767, 770 (11th Cir. 2002) (en banc). When we construe a statute, “we must begin, and often should end as well, with the language of the statute itself.” Id. (quotations omitted).

Two circuits have interpreted the definition of “loss” as set forth in 18 U.S.C. § 1030(e)(ll) to include the cost of responding to the offense, irrespective of whether there was an interruption of service. See Yoder & Frey Auctioneers, Inc. v. EquipmentFacts, LLC, 774 F.3d 1065, 1073-74 (6th Cir. 2014); A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630, 646 (4th Cir. 2009). The Yoder court explained its reasoning:

“Loss” is defined in the disjunctive—it includes “any reasonable cost to any victim including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense.” 18 U.S.C. § 1030(e)(ll). It also encompasses “any revenue lost, cost-incurred, or other consequential damages incurred because of interruption of service,” Id. If a plaintiff is able to establish a loss of at least $5,000 in value, whether that be composed solely of costs identified in the first clause, or solely costs identified in the second clause, or a combination of both, then he may recover under the statute.

Yoder, 774 F.3d at 1073.

Although no Court of Appeals has interpreted the statute to require an interruption of service in all cases, a more narrow view followed by some district courts requires that any loss under the CFAA be the result of an “interruption of service.” See, e.g., Cont’l Grp., Inc. v. KW Prop. Mgmt., LLC, 622 F. Supp. 2d 1357, 1371 (S.D. Fla. 2009). The court in Continental Group reasoned as follows:

This Court ... concludes that all loss must be as a result of “interruption of service.” Otherwise, it would appear that the second half of the “loss” definition is surplusage. If loss could be any reasonable cost without any interruption of service, then why would there even be a second half to the definition that limits some costs to an interruption of service. Rather, the better reading (though reasonable minds surely can differ until the Court of Appeals decides the issue) appears to be that all “loss” must be the result of an interruption of service. This conclusion is supported by the legislative intent in the CFAA, a criminal statute, to address interruption of service and damage to protected computers.

Id.

We agree with the Fourth and Sixth Circuits. The plain language of the statutory definition includes two separate types of loss: (1) reasonable costs incurred in connection with such activities as responding to a violation, assessing the damage done, and restoring the affected data, program system, or information to its condition prior to the violation; and (2) any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service. See 18 U.S.C. § 1030(e)(ll). The statute is written in the disjunctive, making the first type of loss independent of an interruption of service. Yoder, 774 F.3d at 1073. Contrary to the assertion of the court in Continental Group, this interpretation does not reduce “interruption of service” to surplusage. See Cont’l Grp., 622 F.Supp.2d at 1371. “Loss” includes the direct costs of responding to the violation in the first portion of the definition, and consequential damages resulting from interruption of service in the second. Thus, under a plain x-eading of the statute, Brown Jordan’s loss from Carmi-cle’s violation of the CFAA does not need to be related to an interruption of service in order to be compensable.

2. Damages

As to Carmicle’s argument that Brown Jordan’s expenses were unnecessary and were therefore not compensable, the district court made a finding of fact that “[although Carmicle told [Brown Jordan] that he had accessed others’ emails using that generic password befoi'e [Brown Jordan] retained Crowe Hoxwath, [Brown Jordan] was unwilling to accept Carmicle’s word under the circumstances.” During its investigation, Crowe Horwath was unable to access the Brown Jordan-owned laptop because the password and PIN necessary to unlock the laptop were not provided. While Brown Jordan was aware of one way that Carmicle claimed he had accessed their systems, they had reason to doubt his credibility. It was therefore reasonable for Brown Jordan to hire both Crowe Hor-wath and Kroll to engage in an extensive forensic and physical review of Brown Jordan’s systems to determine the extent of Cai-micle’s hacking activity. These losses were incurred in the course of responding to the offense and are therefore compen-sable under the CFAA. See 18 U.S.C. § 1030(e)(ll).

B. Stored Communications Act

The district court determined that Car-micle violated the SCA when he accessed other employees’ emails without authorization. Carmicle contends he did not violate the SCA because the emails Carmicle accessed were not held in “electronic storage” as that term is defined by the SCA and because his email access was authorized.

Anyone who “intentionally accesses without authorization a facility through which an electronic communication service is provided; or ... intentionally exceeds an authorization to access that facility; and thereby obtains ... access to a wire or electronic communication while it is in electronic storage in such system” is liable pursuant to the SCA 18 U.S.C. § 2701(a); see also Vista Mktg., 812 F.3d at 962. As with the CFAA issue above, whether Carmicle violated the SCA is a mixed question of law and fact, which we review de novo. Reynolds, 338 F.3d at 1211. To the extent this issue involves the interpretation of the SCA, it is a question of law we review de novo. Vista Mktg., 812 F.3d at 962.

1. Whether the emails Carmicle accessed were in “electronic storage”

On appeal, Carmicle contends the emails he accessed were not in “electronic storage” as that term is defined by the SCA because the emails had already been opened by their intended recipients at the time he accessed them. Carmicle concedes there is a split of authority over this issue, but asserts that the more reasonable reading of the SCA exempts previously opened emails from the purview of the statute.

The unopened-versus-opened-email issue was raised to our court in Vista Marketing. We did not decide the issue in that case because the defendant conceded that at least some of the emails were unopened by their intended recipient at the time the defendant read them. Id. at 963. We noted that “much debate” surrounded the issue. Id. (citing Theofel v. Farey-Jones, 341 F.3d 978 (9th Cir. 2003), as amended by 359 F.3d 1066 (9th Cir. 2004); In re DoubleClick Inc. Privacy Litig., 154 F.Supp.2d 497, 511-12 (S.D.N.Y. 2001); Cheng v. Romo, No. 11-10007-DJC, 2013 WL 6814691, *3-4 (D. Mass. Dec. 20, 2013); Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F.Supp.2d 548, 555-56 (S.D.N.Y. 2008); Comput. Crime & Intellectual Prop. Section, Exec. Office for U.S. Attorneys, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations, at 124 (3d ed. 2009); Orín Kerr, A User’s Guide to the Stored Communications Act and a Legislator’s Guide to Amending It, 72 Geo. Wash. L. Rev. 1208 (2004)).

Once again, as in Vista Marketing, we will not “wade into the discussion” of this complicated issue, but for a different reason. See Vista Mktg., 812 F.3d at 963. Here, Carmicle did not fairly present the unopened-versus-opened-email issue to the district court. We are unable to reach the merits of this issue of first impression in our Circuit because “[w]e cannot allow [Carmicle] to argue a different case from the case [he] presented to the district court.” See Irving v. Mazda Motor Corp., 136 F.3d 764, 769 (11th Cir. 1998). “As an appellate court with no fact finding mechanism, and, indeed without any factual aver-ments made in the trial court, we are naturally hesitant to consider this claim.” Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004).

The facts supporting Carmicle’s assertion that he never accessed unopened emails were never explained in any document or argument before the district court, and no discovery was ever conducted about them. See id. at 1332. When Brown Jordan stated its position on the issue, Carmicle disavowed he was arguing for a distinction between unopened and opened email, and put forth no facts that would support his claim. Thus, “it would be improvident for us to try to grapple with the important question whether” email that has already been opened by its intended recipient fits into the definition of “electronic storage” in the SCA. Id. We detail Carmicle’s argument in the district court as to this issue to illustrate how the issue was not fairly presented.

The unopened-versus-opened-email argument was most clearly presented in Car-micle’s motion to dismiss. He contended, in one sentence, that the SCA was inapplicable to the facts of his case because “an opened but undeleted email sitting on a server is not a ‘stored communication’ within the meaning of the SCA,” and cited two district court cases for the proposition.

By the time Carmicle filed his partial motion for summary judgment, the focus of his argument had changed. Any reference to unopened or opened email vanished. Instead, his argument was that any message sitting in a recipient’s inbox, whether unopened or opened by the intended recipient, is not a “stored communication.” Carmicle contended the only time a message is a stored communication is during the brief interval when an email service stores a message until the addressee downloads it. Carmicle asserted the only way the SCA could be implicated is if a defendant “literally ‘intercept[s]’ the transmission during its transmission.” Car-micle also asserted that the emails were not held in storage by an internet service provider (ISP) for backup protection, but never mentioned the unopened-versus-opened-email distinction.

Brown Jordan’s opposition to Carmicle’s motion for partial summary judgment contended that “[cjourts have not distinguished between unopened and opened email communications for the purposes of the SCA,” and included cases supporting its interpretation of the unopened-versus-opened-email issue. See Theofel, 359 F.3d at 1075, 1077; Pure Power Boot Camp, 587 F.Supp.2d at 556; Cardinal Health 414, Inc. v. Adams, 582 F.Supp.2d 967, 977 (M.D. Tenn. 2008). Carmicle’s reply in support of his motion for summary judgment made clear that he was not arguing the unopened-versus-opened-email issue, stating:

Nor were the emails which Carmicle accessed “stored communications” as is required by the SCA. BJI’s argument that there is no differentiation between opened or unopened email misses the point. Stored communications are those which are held by the ISP immediately prior to delivery or stored by the ISP for back up. They are not emails which have been delivered locally and are resting in the inbox to which they were delivered.

(Emphasis added). Thus, Carmicle disavowed that he was arguing for a distinction between unopened and opened email; rather, he was arguing that any email located in an intended recipient’s inbox, whether unopened or opened, was not covered by the SCA.

This was the last reference to the issue of unopened versus opened email by the parties. During the 11-day trial in this case, neither Carmicle nor Brown Jordan elicited any trial testimony on the subject, and Carmicle made no reference to the issue in his pre-trial or post-trial proposed Conclusions of Law and Findings of Fact. In contrast, on appeal, Carmicle fully briefs the issue.

Carmicle had an opportunity to fairly present this argument before the district court, but did not do so. Accordingly, this circumstance is not one in which we elect to evaluate an issue not fairly presented to the district court. See Access Now, 385 F.3d at 1332.

2. Whether Carmicle’s email access was authorized

Carmicle also contends he did not violate the SCA because his email access was authorized. His argument is that Brown Jordan’s company policy states that:

[EJmployees at [Brown Jordan] should have no expectation of privacy while using company-owned or company-leased equipment. Information passing through or stored on [Brown Jordan] equipment can and will be monitored. Employees should also understand that [Brown Jordan] has the right to monitor and review Internet use and e-mail communications sent or received by employees. Access to another employee’s email and internet usage is controlled by senior management. No IT staff person is authorized to give out passwords to users other than the account holder without the permission of senior management. Managers and employees who need access for legitimate [Brown Jordan] purposes to another employee’s email must request such access from a member of corporate senior management.

(Emphasis in original). Carmicle contends that because he was a member of “senior management” he was not required to request access from a member of corporate senior management.

The district court concluded that even though the Computer and Internet Policy uses the terms “employees,” “managers,” “senior management,” and “corporate senior • management” without definition, it found no ambiguity as to whether Carmi-ele’s use of the generic password was authorized. The district court determined it would be “unreasonable to interpret the Computer and Internet Policy as authorizing [Carmicle] to exploit a generic password—which by happenstance permitted Carmicle to access others’ email accounts without requesting such access through appropriate and otherwise necessary channels—solely on suspicion of dishonesty concerning the content of communications between others, without any reason to suspect wrongful or illegal conduct prior to doing so.” We agree. The district court did not err in determining Carmicle’s email access was unauthorized.

In sum, Carmicle’s arguments regarding the SCA are either waived or fail on their merits. We affirm the district court’s conclusion that Carmicle’s actions violated the SCA.

C. Wrongful Discharge

Carmicle argues the district court erred in granting summary judgment in favor of Brown Jordan on Carmicle’s wrongful discharge claim. He asserts that under Kentucky law, his discharge for reporting fraud and breach of fiduciary duty on the part of senior management is actionable.

Under Kentucky law, there are only two situations where an employer’s reason for discharging an employee is so contrary to public policy as to be actionable: (1) “where the alleged reason for the discharge of the employee was the failure or refusal to violate a law in the course of employment,” or (2) “when the reason for the discharge was the employee’s exercise of a right conferred by a well-established legislative enactment.” Grzyb v. Evans, 700 S.W.2d 399, 402 (Ky. 1985) (quotation omitted). Carmicle asserted a wrongful discharge claim under the second situation recognized by Grzyb, alleging he was terminated after he provided information on improper activities, and the district court addressed that issue. Carmicle also attempted to assert a claim under the first situation, but the district court denied amendment because the amended pleadings deadline had passed.

The district court did not err in granting Brown Jordan’s motion for summary judgment on this issue. Carmicle argued he was terminated after providing information that corporate officers violated or were violating their fiduciary duties to Brown Jordan. Carmicle premised his claim on the following statute:

An officer with discretionary authority shall discharge his duties under that authority:
(a) In good faith;
(b) On an informed basis; and
(c) In a manner he honestly believes to be in the best interests of the corporation.

Ky. Rev. Stat. § 271B.8-420(1).

Carmicle contends this statute shows he had fiduciary duties to Brown Jordan, and acting or failing to act otherwise than in good faith in the discharge of his duties could have subjected him to liability. Accordingly, he argues, there is a “clear, strong legislative expressing of public policy against” breaches of fiduciary duty in Kentucky. See Hill v. Kentucky Lottery Corp., 327 S.W.3d 412, 422 (Ky. 2010).

But even assuming that this statute could support a wrongful discharge claim, the district court correctly concluded that the statute Carmicle cited did not apply because he was not a director or corporate officer. Brown Jordan provided evidence that Carmicle was not a corporate officer, and that his title of president was an honorary one only. Carmicle’s status was that of a managerial employee and Carmicle only had a “belief’ that he was a corporate officer. The district court did not err in granting Brown Jordan summary judgment on this issue.

D. Termination for Cause

Carmicle contends that in determining Carmicle was terminated for cause as defined by the Employment Agreement, the district court ignored the requirement that Carmicle be given notice of his alleged negligence or misconduct in writing, and be given an opportunity to cure any such misconduct. He also argues that the court erred in determining that each time Carmicle accessed the email of another employee, he committed a separate occurrence of gross negligence or willful misconduct.

At stake in this issue is Carmicle’s entitlement to profits interest and severance pay. The Executive Employment Agreement he entered into with Brown Jordan defines “cause,” among other things, as:

[T]he Executive’s gross negligence or willful misconduct in the performance of his duties as an employee of [Brown Jordan] that is not cured within seven (7) days following written notice by [Brown Jordan] to the Executive of such gross negligence or willful misconduct, or three (3) occurrences of the Executive’s gross negligence or willful misconduct in any twelve-month period....

The district court first concluded that the contract was governed by Florida law, as stated in the contract. “In interpreting a contract under Florida law, we give effect to the plain language of contracts when that language is clear and unambiguous.” Equity Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv., Inc., 556 F.3d 1232, 1242 (11th Cir. 2009) (quotations omitted). The district court concluded this language unambiguously establishes two separate grounds for termination with cause: (1) a single occurrence of gross negligence or willful misconduct that is not cured within seven days following written notice thereof, or (2) three occurrences of gross negligence or willful misconduct in any twelve-month period, written notice of which is not required.

The district court did not err. The district court’s interpretation of the employment agreement is reasonable. As the district court stated, “[i]t would be unreasonable to interpret this language as requiring written notice and an opportunity to cure both after a single instance of gross negligence or willful misconduct and after three occurrences of gross negligence or willful misconduct in any twelve-month period, inasmuch as such an interpretation would render the definition either redundant or absurdly under-inclusive.” Further, the district court was correct to consider each of Carmicle’s separate access of emails as a separate event. Carmicle was terminated for cause as defined in the Employment Agreement and by incorporation in the Profits Interest Agreements.

III. CONCLUSION

We affirm the district court. Carmicle’s CFAA arguments fail because Brown Jordan suffered loss as defined in the CFAA. As a matter of first impression, we hold a “loss” does not have to stem from an “interruption of service” to be compensable. Carmicle’s SCA arguments also fail. He waived his unopened-versus-opened-email argument because he did not fairly present it to the district court. Additionally, Brown Jordan showed Carmicle exceeded his authorization in accessing the emails of other Brown Jordan employees. Lastly, the district court did not err in granting summary judgment on Carmicle’s wrongful discharge claim or in determining that Carmicle was terminated for cause as defined by the Employment Agreement.

AFFIRMED.

      . We refer collectively to the Appellees as "Brown Jordan.”

      . Carmicle also contends there can be no loss under the CFAA unless it relates to fixing damage to a computer or network. However, the definition of loss includes “any reasonable cost to any victim, including the cost of responding to an offense-" 18 U.S.C. § 1030(e)(ll) (emphasis added). The reasonable cost of responding to the offense—in this case, the unauthorized email access—is not limited to damage to a computer or network.

      . While we may choose to hear an argument fairly presented for the first time on appeal in special circumstances, the issue here does not meet any of the five circumstances in which we will consider such an issue. See Access Now, 385 F.3d at 1332.

      . We also reject Carmicle’s argument that he did not access a "facility” within the meaning of the SCA. The language of the SCA requires intentionally accessing without (or exceeding) authorization "a facility through which an electronic communication service is provided,” 18 U.S.C. § 2701(a) (emphasis added). The SCA does not define "facility,” see Garcia
        v. City of Laredo, 702 F.3d 788, 792 (5th Cir. 2012); however, the Oxford English Dictionary definition of "facility” includes “the physical means or equipment for doing something,” Oxford English Dictionary Online, http://www.oed.com/viewdictionaryentry/ Entry/67465. "Electronic communication service” is defined as “any service which provides users thereof the ability to send or receive wire or electronic communications.” 18 U.S.C. § 2510(15).
      Brown Jordan presented evidence that Car-micle used a generic password to access the Microsoft Office 365 program, a cloud-based service. Microsoft Office 365 provides the ability to send and receive emails. Thus, Microsoft Office 365 is a facility through which an electronic communication service is provided.

      . Both parties agree that Kentucky law applies to this issue because the termination occurred in Kentucky.

      . Carmicle tries to weave the public policy and violation of law arguments together in his initial brief, but does not appeal the district court's refusal to allow him to amend his complaint to add allegations under the second prong.

      . We review the district court’s grant of summary judgment de novo. Fish v. Brown, 838 F.3d 1153, 1156 (11th Cir. 2016).


source: Caselaw Access Project

author: WILSON, Circuit Judge:

license: Public Domain

text:
    John DOE #1, John Doe #2, John Doe #3, Florida Action Committee, Inc., Plaintiffs-Appellants, v. MIAMI-DADE COUNTY, FLORIDA Department of Corrections, Sunny Ukenye, Circuit Administrator for the Miami Circuit Office, Florida Department of Corrections, in his full official capacity, Defendants-Appellees.
    No. 15-14336
    Non-Argument Calendar
    United States Court of Appeals, Eleventh Circuit.
    (January 25, 2017)

      Brandon Buskey, Ezekiel Edwards, American Civil Liberties Union of New York State (NYCLU), New York, NY, Nancy Gbana Abudu, Daniel Boaz Tilley, ACLU Foundation of Florida, Inc., Miami, FL, for Plaintiffs-Appellants.
    Michael B. Valdes, Miami-Dade County Attorney’s Office, Miami, FL, for Defendant-Appellee Miami-Dade County, Flori-da.
    John Bajger, Attorney General’s Office, West Palm Beach, FL, for Defendants-Appellees Florida Department of Corrections, Sunny Ukenye, Circuit Administrator for the Miami Circuit Office, Florida Department of Corrections, in his full official capacity.
    Carrol Y. Cherry Eaton, Attorney General’s Offiee, FT Lauderdale, FL, for Defendant-Appellee Florida Department of Corrections.
    Before TJOFLAT, WILSON, and JILL PRYOR, Circuit Judges.
   WILSON, Circuit Judge:

We vacate our prior opinion, Doe v. Miami-Dade Cnty., 838 F.3d 1050 (11th Cir. 2016), and substitute the following opinion in its place.

Plaintiffs-Appellants John Doe #1, John Doe #2, John Doe #3, and the Florida Action Committee, Inc. (FAC) (collectively, the Plaintiffs), appeal the district court’s dismissal of their ex post facto challenges to the residency restriction in Miami-Dade County’s Lauren Book Child Safety Ordinance (the Ordinance). On appeal, the Plaintiffs argue that they pleaded sufficient facts to state a claim that the residency restriction is so punitive in effect as to violate the ex post facto clauses of the federal and Florida Constitutions. At this stage, we conclude that Doe #1 and Doe #3 have alleged plausible ex post facto challenges to the residency restriction. Therefore, we affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

I

On November 15, 2005, Miami-Dade County (the County) adopted the Ordinance, which imposes, inter alia, a residency restriction on “sexual offenders” and “sexual predators.” See Miami-Dade Cty., Fla., Code of Ordinances ch. 21, art. XVII. The Ordinance prohibits a person who has been convicted of any one of several enumerated sexual offenses involving a victim under sixteen years of age from “resid[ing] within 2,500 feet of any school.” Id. § 21-281(a). The 2,500-foot distance is “measured in a straight line from the outer boundary of the real property that comprises a sexual offender’s or sexual predator’s residence to the nearest boundary line of the real property that comprises a school,” rather than “by a pedestrian route or automobile route.” Id. § 21-281(b). There are three exceptions to the County’s residency restriction: (1) “[t]he sexual offender or sexual predator established a residence prior to the effective date of th[e] [Ordinance”; (2) “[t]he sexual offender or sexual predator was a minor when he or she committed the sexual offense and was not convicted as an adult”; and (3) “[t]he school was opened after the sexual offender or sexual predator established the residence.” Id. § 21-282(1). Violations of the Ordinance are punishable by a fíne up to $1,000, imprisonment for up to 364 days, or both. Id. § 21-281 (c).

On December 20, 2014, the Plaintiffs filed a complaint against the County, the Florida Department of Corrections, and the Florida Department of Corrections Miami Circuit Administrator, Sunny Uken-ye, in his official capacity (collectively, the Defendants), challenging the constitutionality of the County’s residency restriction. Specifically, the Plaintiffs challenged the County’s residency restriction (1) as void for vagueness under the Fourteenth Amendment and the Florida Constitution; (2) as a violation of their substantive due process rights to personal security and to acquire residential property under the Fourteenth Amendment and the Florida Constitution; and (3) as an unconstitutional ex post facto law under the federal and Florida Constitutions. The Defendants moved to dismiss, and the district court dismissed all the claims with prejudice under Federal Rule of Procedure 12(b)(6). The Plaintiffs properly appealed only the dismissal of their ex post facto challenges against the County.

II

“We review de novo the district court’s grant of a motion to dismiss under 12(b)(6) for failure to state a claim, accepting the allegations in the complaint as true and construing them in the light most favorable to the plaintiff.” Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003) (per cu-riam).

III

Both the federal and Florida Constitutions prohibit the passage of ex post facto laws. See U.S. Const, art. I, § 9, cl. 3; id. art. I, § 10, cl. 1; Fla. Const, art, I, § 10. An ex post facto law is a law that “applies] to events occurring before its enactment” and that “disadvantage^] the offender affected by it, by altering the definition of criminal conduct or increasing the punishment for the crime.” Lynce v. Mathis, 519 U.S. 433, 441, 117 S.Ct. 891, 896, 137 L.Ed.2d 63 (1997) (internal quotation marks and citation omitted). In Smith v. Doe, the Supreme Court outlined a framework for determining whether Alaska’s sex offender registration and notification requirements violated the federal Ex Post Facto Clause. See 538 U.S. 84, 92-93, 97, 123 S.Ct. 1140, 1146-47, 1149, 155 L.Ed.2d 164 (2003). We join our sister circuits in applying the Smith framework to evaluate an ex post facto challenge to a residency restriction on sexual offenders. See Doe v. Snyder, 834 F.3d 696, 699-701 (6th Cir. 2016) (consolidated); Shaw v. Patton, 823 F.3d 556, 561-62 (10th Cir. 2016); Doe v. Miller, 405 F.3d 700, 718 (8th Cir. 2005).

The Smith Court noted that Alaska’s statute was retroactive and applied the following framework to determine whether the statute violated the Ex Post Facto Clause:

We must ascertain whether the legislature meant the statute to establish civil proceedings. If the intention of the legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is so punitive either in purpose or effect as to negate the State’s intention to deem it civil.

538 U.S. at 92, 123 S.Ct. at 1146-47 (alteration adopted) (internal quotation marks and citations omitted). After determining that the Alaska legislature intended to “create a civil, nonpunitive regime,” the Court explained that several factors guide the second part of the analysis:

whether, in its necessary operation, the regulatory scheme: [1] has been regarded in our history and traditions as a punishment; [2] imposes an affirmative disability or restraint; [3] promotes the traditional aims of punishment; [4] has a rational connection to a nonpunitive purpose; or [5] is excessive with respect to this purpose.

See id. at 96-97, 123 S.Ct. at 1149. Ultimately, the Court concluded that the Alaska statute was not punitive and, therefore, did not violate the Ex Post Facto Clause. See id. at 105-06, 123 S.Ct. at 1154.

IV

The County does not contest that its residency restriction applies to individuals “convicted” of relevant sexual offenses before the passage of the Ordinance. See Ordinance § 21-281(a); Lynce, 519 U.S. at 441, 117 S.Ct. at 896 (a statute is only retroactive if it “applies] to events occurring before its enactment” (internal quotation mark omitted)). Therefore, we accept for purposes of this appeal that the residency restriction applies retroactively. Additionally, the Plaintiffs do not contest the County’s assertion that the County intended the Ordinance to be civil and non-punitive. Therefore, we also accept for purposes of this appeal that the County intended to “create a civil, nonpunitive regime” under the first step of the Smith analysis. See Smith, 538 U.S. at 96, 123 S.Ct. at 1149.

Finally, only Doe #1 and Doe #3 have properly alleged that the County’s residency restriction applied retroactively to them—that the restriction applied to their pre-enactment convictions for qualifying sexual offenses. Accordingly, we need only decide whether Doe #1 and Doe #3 alleged sufficient facts .to state a plausible claim that the County’s residency restriction is so punitive in effect as to violate the federal and Florida ex post facto clauses under Smith. See Ashcroft v. Iqbal, 556 U.S. 662, 677-79, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009). We conclude they have done so.

The complaint sufficiently alleged that the County’s residency restriction imposes a direct restraint on Doe #l’s and Doe #3’s freedom to select or change residences. Under the “affirmative disability or restraint” factor, “we inquire how the effects of the [Ordinance] are felt by those subject to it.” See Smith, 538 U.S. at 99-100, 123 S.Ct. at 1151 (internal quotation marks omitted). The Plaintiffs alleged in their complaint that the County’s residency restriction severely limits housing options for individuals subject to the restriction, “drastically exacerbat[ing] transience and homelessness.” See Amended Complaint at ¶74. Doe #1 and Doe #3 have specifically alleged that they are homeless and that their homelessness resulted directly from the County’s residency restriction “severely restricting available, affordable housing options.” Id. at ¶ 54; accord id. at ¶ 28. Doe #1 was twice instructed by probation officers to live at homeless encampments after the County’s residency restriction made him unable to live with his sister and he could not find other housing compliant with the restriction. See id. at ¶¶ 18-28. He currently lives at a makeshift homeless encampment near “an active railroad track” (the Encampment). See id. at ¶¶ 5, 25. Similarly, Doe #3 sleeps in his car at the Encampment because, “despite repeated attempts, he has been unable to obtain available, affordable rental housing in compliance with the Ordinance.” See id. at ¶¶ 52-53.

Doe #1 and Doe #3 also sufficiently alleged that the County’s residency restriction is excessive in comparison to its public safety goal of addressing recidivism. See Smith, 538 U.S. at 105, 123 S.Ct. at 1154 (regulation is excessive if “[un]reasonable in light of [its] noripunitive objective”). Accepting the facts alleged in the complaint as true, the County’s residency restriction is “amorig the strictest in the nation.” See Amended Complaint at ¶ 74. An individual becomes subject to the restriction based solely on the fact of his or her prior conviction for a listed sexual offense, without regard to his or her individual “risk of recidivism over time.” See id. at ¶¶ 72-73. And the County’s residency restriction applies for life, even after an individual no longer has to register as a sexual offender under Florida law and is no longer subject to the state law 1,000-foot residency restriction. See id. at ¶ 72. The County’s residency restriction also applies “even if there is no viable route to reach the school within 2500 feet.” Id. at ¶ 141. The County adopted this broad residency restriction even though “there is no evidence that residency restrictions have any impact on recidivism or public safety, or that an individual’s residential proximity to a school, is a salient risk factor in sexual offending.” Id. at ¶ 140.

The Plaintiffs further argue that the County’s residency restriction not only fails to advance, but also directly undermines, the goal of public safety. The complaint stated that “[t]he only demonstrated means of effectively managing reentry and recidivism [of former sexual offenders] are targeted treatment, along with maintaining supportive, stable environments that provide access to housing, employment, and transportation,” rather than by “[making] categorical assumptions about groups of former sexual offenders.” See id. at ¶¶ 137, 143. The complaint also alleged that the transience and homelessness that the residency restriction causes undermine sexual offenders’ abilities to successfully re-enter society and increase the risk of recidivism by “mak[ing] it more difficult for Plaintiffs and others to secure residences, receive treatment, and obtain and maintain employment.” See id. at ¶¶ 146, 149. In light of the foregoing, we conclude that Doe #1 and Doe #3 have stated a plausible claim that the County’s residency restriction is so punitive in effect as to violate the ex post facto clauses of the federal and Florida Constitutions.

V

Our role in reviewing the grant of a 12(b)(6) motion merely is to determine whether the plaintiffs stated a plausible claim, such that they should be permitted to proceed to discovery. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012) (per curiam). Here, Doe #1 and Doe #3 alleged sufficient facts to raise plausible claims that the County’s residency restriction is so punitive in effect that it violates the ex post facto clauses of the federal and Florida Constitutions. Whether Doe #1 and Doe #3 ultimately prevail is a determination for a future stage of this litigation. Thus, we reverse the district court’s grant of the County’s motion to dismiss as to Doe #1 and Doe #3’s ex post facto challenges and remand for further proceedings.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Appendix

ARTICLE XVII.—THE LAUREN BOOK CHILD SAFETY ORDINANCE

Sec. 21-277.—Title.

Article XVII shall be known and may be cited as “The Lauren Book Child Safety Ordinance.”

Sec. 21-278.—Findings and Intent.

(a) Repeat sexual offenders, sexual offenders who use physical violence and sexual offenders who prey on children are sexual predators who present an extreme threat to the public safety. Sexual offenders are extremely likely to use physical violence and to repeat their offenses. Most sexual offenders commit many offenses, have many more victims than are ever reported, and are prosecuted for only a fraction of their crimes. This makes the cost of sexual offender victimization to society at large, while incalculable, clearly exorbitant.

(b) The intent of this article is to serve the County’s compelling interest to promote, protect and improve the health, safety and welfare of the citizens of the County, particularly children, by prohibiting sexual offenders and sexual predators from establishing temporary or permanent residence in certain areas where children are known to regularly congregate, to prohibit renting or leasing certain property to sexual offenders or sexual predators if such property is located where children are known to regularly congregate and to restrict sexual offenders’ and sexual predators’ access to parks and child care facilities.

Sec. 21-280.—Definitions.

The following terms and phrases when used in this article shall have the meanings ascribed to them in this section unless the context otherwise requires:

(4) “Convicted” or “conviction” means a determination of guilt which is the result of a trial or the entry of a plea of guilty or nolo contendere, regardless of whether adjudication is withheld. A conviction for a similar offense includes, but is not limited to: a conviction by a federal or military tribunal, including courts-martial conducted by the Armed Forces of the United States, and includes a conviction or entry of a plea of guilty or nolo contendere resulting in a sanction in any state of the United States or other jurisdiction. A sanction includes, but is not limited to, a fine, probation, community control, parole, conditional release, control release, or incarceration in a state prison, federal prison, private correctional facility, or local detention facility.

(7) “Permanent residence” means a place where a person abides, lodges, or resides for fourteen (14) or more consecutive days.

(8) “Reside” or “residence” means to have a place of permanent residence or temporary residence.

(9) “School” means a public or private kindergarten, elementary, middle or sécondary (high) school.

(10) “Sexual offender” shall have the meaning ascribed to such term in Section 943.0435, Florida Statutes.

(11) “Sexual offense” means a conviction under Section 794.011, 800.04, 827.071, 847.0135(5) or 847.0145, Florida Statutes, or a similar law of another jurisdiction in which the victim or apparent victim of the sexual offense was less than sixteen (16) years of age, excluding Section 794.011(10), Florida Statutes.

(12) “Sexual predator” shall have the meaning ascribed to such term in Section 775.21, Florida Statutes.

(13) “Temporary residence” means a place where the person abides, lodges, or resides for a period of fourteen (14) or more days in the aggregate during any calendar year and which is not the person’s permanent address, or a place where the person routinely abides, lodges, or resides for a period of four (4) or more consecutive or nonconsecutive days in any month and which is not the person’s permanent residence.

Sec. 21-281.—Sexual Offender and Sexual Predator Residence Prohibition; Penalties.

(a) It is unlawful for any person who has been convicted of a violation of Section 794.011 (sexual battery), 800.04 (lewd and lascivious acts on/in presence of persons under age 16), 827.071 (sexual performance* by a child), 847.0135(5) (sexual acts transmitted over computer) or 847.0145 (selling or buying of minors for portrayal in sexually explicit conduct), Florida Statutes, or a similar law of another jurisdiction, in which the victim or apparent victim of the offense was less than sixteen (16) years of age, to reside within 2,500 feet-of any school.

(b) The 2,500-foot distance shall be measured in a straight line from the outer boundary of the real property that comprises a sexual offender’s or sexual predator’s residence to the nearest boundary line of the real property that comprises a school. The distance may not be measured by a pedestrian route or automobile route, but instead as the shortest straight line distance between the two points.

(c) Penalties. A person who violates section 21-281(a) herein shall be punished by a fine not to exceed $1,000.00 or imprisonment in the County jail for not more than 364 days or by both such fine and imprisonment.

Sec. 21-282.—Exceptions.

(1) A sexual offender or sexual predator residing within 2,500 feet of any school does not commit a violation of this section if any of the following apply:
(a)The sexual offender or sexual predator established a residence prior to the effective date of this ordinance. The sexual offender or sexual predator shall not be deemed to have established a residence or registered said residence for purposes of this section, if the residence is an illegal multifamily apartment unit within a neighborhood zoned for single-family residential use.
(b) The sexual offender or sexual predator was a minor when he or she committed the sexual offense and was not convicted as an adult.
(c) The school was opened after the sexual offender or sexual predator established the residence.
(2) Section 21-282(l)(a) and (l)(c) herein shall not apply to a sexual offender or sexual predator who is convicted of a subsequent sexual offense as an adult after residing at a registered residence within 2,500 feet of a school.

      . The present text of the Ordinance is reproduced in the Appendix in relevant part. Any differences between the 2005 version, which went into effect on November 25, 2005, and the present version of the Ordinance are immaterial to this appeal.

      . We evaluate both the federal and state ex post facto challenges under Smith. See Hous
        ton v. Williams, 547 F.3d 1357, 1364 (11th Cir. 2008).

      . None of the factors is dispositive and two other factors may be considered in the second step of the Smith framework: whether the regulatory scheme "comes into play only on a finding of scienter” and whether "the behavior to which it applies is already a crime.” See Smith, 538 U.S. at 97, 105, 123 S.Ct. at 1149, 1154. However, the Court explained, these two factors carried little weight in the Court’s analysis of the Alaska statute. See id. at 105, 123 S.Ct. at 1154.

      . Construing the complaint in the light most favorable to the Plaintiffs, Doe #1 was convicted of his relevant sexual offense in 1992, and Doe #3 was convicted of his relevant sexual offense in 1999—both before the County’s residency restriction was enacted in 2005, See Amended Complaint at ¶¶ 17, 48, Doe v. Miami-Dade Cty., No. 1:14-cv-23933~PCH (S.D. Fla. Apr. 3, 2015) [hereinafter Amended Complaint]. Both are also "sexual offenders” under the Ordinance because they are residents of Miami-Dade County and are registered as sexual offenders. Id. at ¶¶ 14, 45; see Ordinance § 21-280(10) (citing Fla. Stat. § 943.0435).
      However, Doe #2 only alleged that he was convicted of his relevant sexual offense in 2006. See Amended Complaint at ¶ 32. Thus, Doe #2 failed to allege that the County’s residency restriction retroactively increased his punishment. Similarly, FAC—a non-profit corporation that works to reform the sexual offender laws in Florida—failed to allege that any of its members were convicted of, or even committed, a relevant sexual offense before November 15, 2005. See id. at ¶¶ 55-63.

      . There are no restroom facilities, sanitary water, or designated shelter at the Encampment, which is technically on private property. See id. at ¶¶ 120-23.

      . The stated intent of the Ordinance "is to . serve the County’s compelling interest to promote, protect and improve the health, safety and welfare of the citizens of the County, particularly children, by prohibiting sexual offenders and sexual predators from establishing temporary or permanent residence in certain areas where children are known to regularly congregate.” The County made findings that, inter alia, "[s]exual offenders are extremely likely to use physical violence and to repeat their offenses.” See Ordinance § 21-278.


author: PER CURIAM:

text:
    PRUCO LIFE INSURANCE COMPANY, Plaintiff/Counter-Defendant/Appellee, v. WELLS FARGO BANK, N.A., as Securities Intermediary, Defendant/Counter-Claimant/Appellant. Pruco Life Insurance Company, Plaintiff/Appellant, v. U.S. Bank, N.A., as Securities Intermediary, Defendant/Appellee.
    No. 13-12135, No. 13-15859
    United States Court of Appeals, Eleventh Circuit.
    (January 25, 2017)

      Nolan B. Tully, Stephen Alan Serfass, Drinker Biddle & Reath, LLP, Philadelphia, PA, Wendy L. Furman, Pett Fur-man, PL, Boca Raton, FL, for Pruco Life Insurance Company (Case Nos. 13-12185, 13-15859).
    Stephen C. Baker, Michael D. Rafalko, Drinker Biddle & Reath, LLP, Philadelphia, PA, Kristina B. Pett, Pett Furman, PL, Boca Raton, FL, for Pruco Life Insurance Company (Case No, 13-12135).
    Raoul G. Cantero, White & Case, LLP, Juan J. Farach, John Kressfíeld Shubin, Shubin & Bass, PA, Miami, FL, Maria Josefa Beguiristain, Leon Cosgrove, LLC, Coral Gables, FL, for Defendant-Appellant (Case No. 13-12135), Defendant-Ap-pellee US Bank, as Securities Intermediary (Case No. 13-15859).
    Charles G. Geitner, Hinshaw & Culbertson, LLP, Tampa, FL, for Defendants-Appellees Gary A. Richardson, Life Brokerage Equity Group, LLC (Case No. 13-15859).
    Lawrence Gordon Horsburgh, Leon Cosgrove, LLC, Coral Gables, FL, for Defendant-Appellee US Bank, as Securities Intermediary (Case No. 13-15859).
    Before TJOFLAT and JULIE CARNES, Circuit Judges, and DUBOSE, District Judge.

       Honorable Kristi K. DuBose, United States District Judge for the Southern District of Alabama, sitting by designation.

   PER CURIAM:

These consolidated appeals require us to determine the validity of two individuals’ Stranger-Originated Life Insurance (“STOLI”) policies that the issuing insurance company sought to have invalidated several years after their issuance. Arguing that the policies were invalid, the insurance company relied on a Florida statute that requires a person who procures life insurance to have an insurable interest in the life of the insured at the inception of the policy. The insurance company contends that no such interest is present when a STOLI policy is purchased and accordingly such policies should be considered void ab initio. The owners of the policies relied on a second Florida statute that requires all insurance policies to include a clause providing that the policy is incontestable after it has been “in force” for two years. The policies at issue in this consolidated appeal contained such a clause, and the insurance company clearly faded to contest the policies within that two-year window.

Thus, the question before this Court was whether an insurance company can contest a STOLI policy that has been in force for more than two years. Given the absence of any controlling Florida precedent and the inconsistent answers provided by district courts within our circuit, we certified the following questions to the Supreme Court of Florida:

1. Can a party challenge an insurance policy as' being void ab initio for lack of the insurable interest required by Fla, Stat. § 627.404 if that challenge is made after expiration of the two-year contestability period mandated by Fla. Stat. § 627.455?
2. Assuming that a party can do so, does Fla. Stat. § 627.404 require that an individual with the required insurable interest also procure the insurance policy in good faith?

See Pruco Life Ins. Co. v. Wells Fargo Bank, N.A., 780 F.3d 1327, 1336 (11th Cir. 2015).

We indicated that the phrasing of the above questions should not restrict the Florida Supreme Court’s consideration of the issues presented in these appeals. In providing an answer, the Florida Supreme Court determined that with a STOLI policy like the two policies at issue in this consolidated appeal, an insurable interest exists in the life of the insured at the inception of the policy, as required by Florida Statute § 627.404. That being so, the Florida Supreme Court indicated that these policies became incontestable within two years from their issuance, as provided in Florida Statute § 627.455. Wells Fargo Bank, N.A. v. Pruco Life Ins. Co., 200 So.3d 1202, 1206 (2016). The court stated:

Because STOLI policies like the Berger and Guild policies at issue have the insurable interest required by section 627.404(1) at their inception, they become incontestable two years after their issuance under the plain language of section 627.455. Accordingly, we rephrase the questions certified by the Eleventh Circuit into the following question:
Can a party challenge the validity of a life insurance policy after the two-year contestability period established by section 627.455 because of its creation through a STOLI scheme?
We answer this rephrased question in the negative and return this case to the Eleventh Circuit.

Id. at 1206-07.

We thank the Florida Supreme Court for its guidance. In light of its response, we AFFIRM the entry of judgment for U.S. Bank as to the Guild policy, Appeal No. 13-15859, District Court No. l:12-cv-24441-FAM. We REVERSE the entry of judgment for Pruco Life Insurance Company as to the Berger policy, Appeal No. 13-12135, District Court No. 9:10-cv-80804-JIC, and remand for proceedings consistent with this opinion.

      . Fla. Stat. § 627.404.

      . Fla. Stat. § 627.455.