Precedents Cited and Their Role

• Whitesell Corp. v. Electrolux Home Prods., Inc., 2025 WL 2538638 (11th Cir. Sept. 4, 2025): Cited for standards of review. The Eleventh Circuit reviews summary judgments and contract interpretations de novo, drawing all reasonable inferences in favor of the nonmovant. This framing undergirds the court’s willingness to revisit the settlement’s plain language and reject the district court’s “continuation” approach.

• TheraTx, Inc. v. Duncan, 234 F.3d 1240 (11th Cir. 2000): Confirms that, where parties designate governing law (here, Georgia), federal courts apply it to interpret the contract.

• Dennis v. City of Atlanta, 751 S.E.2d 469 (Ga. Ct. App. 2013), citing U.S. Anchor Mfg. v. Rule Indus., 443 S.E.2d 833 (Ga. 1994): Georgia law permits releases of future claims, but only if the intent to release future claims is clearly expressed. The Eleventh Circuit used this to underscore that the parties did not clearly release future keyword‑bidding claims; indeed, they limited the release to pre‑execution facts and made any keyword‑bidding obligation contingent on FTC approval that never came.

• In re Managed Care, 756 F.3d 1222 (11th Cir. 2014): The district court relied on this case to treat post‑settlement conduct as a “continuation” of prior wrongdoing, but the Eleventh Circuit distinguished it. Managed Care barred certain RICO/antitrust claims because the same conspiracy allegedly continued post‑settlement; by contrast, it allowed ERISA claims that accrued after settlement. The court analogized Edible’s claims to the latter: in trademark, each new use can be a distinct infringement accruing after the settlement’s effective date.

• Marcel Fashions Grp. Inc. v. Lucky Brand Dungarees, Inc., 779 F.3d 102 (2d Cir. 2015): Quoted for the proposition that a suit seeking damages for prior trademark infringements does not bar a subsequent suit for damages for subsequent infringements. This supports treating post‑settlement keyword‑bidding as actionable new conduct, not as a precluded continuation.

• TVPX ARS, Inc. v. Genworth Life & Annuity Ins. Co., 959 F.3d 1318 (11th Cir. 2020): Provides the four-factor res judicata test—court of competent jurisdiction, final judgment, same parties, and same cause of action. The “same cause of action” analysis is central and is modified when the prior dismissal rests on a settlement.

• Norfolk S. Corp. v. Chevron, U.S.A., Inc., 371 F.3d 1285 (11th Cir. 2004): The lynchpin for preclusion analysis here. When a prior dismissal is based on a settlement, res judicata’s scope is “controlled by the Settlement Agreement,” not by the complaint. Parties can, by contract, narrow or expand the preclusive effect. Because the 2016 Settlement’s release was limited to pre‑execution facts, it did not preclude claims based on later conduct.

• Federal Rule of Civil Procedure 56(a): Requires courts to state reasons when granting or denying summary judgment. The district court’s failure to address Edible’s non‑keyword breach‑of‑contract claim warranted reversal.

Legal Reasoning

1) Contract Interpretation under Georgia Law: Reading the Settlement as a Whole

The court’s interpretive starting point was the settlement’s text. Three provisions interact decisively:

• Paragraph 3 creates a category of “prohibited conduct” but expressly excludes “bidding on, purchase or use of keywords,” deferring that topic to Paragraph 5. This carve‑out is a strong indicator that the parties addressed keyword bidding exclusively through Paragraph 5.
• Paragraph 5 obligates 1‑800‑Flowers to seek FTC approval to halt specified keyword bidding, and provides that absent such approval, “this Paragraph shall be null and void and shall have no force or effect.” The contingency failed; the clause never came to life. Thus, no standalone contractual prohibition on keyword bidding survived the settlement.
• Paragraph 14 releases claims “arising out of any facts and matters occurring prior to the execution” of the settlement—thereby preserving claims for later conduct, unless otherwise clearly released.

Under Georgia law, releasing future claims requires clear expression. The agreement did the opposite: it tethered the release to pre‑execution facts and made any keyword‑bidding restraint contingent. The court therefore held that post‑execution keyword‑bidding claims were not released.

2) Rejecting the “Continuation” Theory for Post‑Settlement Keyword Bidding

The district court’s “continuation of the same conduct” rationale—drawn from Managed Care’s conspiracy context—does not translate to trademark advertising. The Eleventh Circuit emphasized that each alleged instance of keyword bidding after the settlement constitutes a new potential infringement with a fresh accrual date. That framing aligns with trademark law’s treatment of repeated use as discrete actionable events and with the Second Circuit’s observation in Marcel/Lucky Brand that prior infringement does not immunize future infringement.

3) Res Judicata is Cabined by What the Settlement Releases

Res judicata’s fourth element—same cause of action—typically uses a “same nucleus of operative facts” standard. But when the prior dismissal is by agreement, Norfolk Southern instructs that the settlement’s terms control preclusion. Because the settlement here did not release post‑execution keyword‑bidding, those claims are not precluded.

4) Procedural Error Regarding the Breach‑of‑Contract Claim

Edible separately alleged that 1‑800‑Flowers violated non‑keyword “prohibited conduct” provisions. The district court entered summary judgment without addressing that claim or providing reasons. Rule 56(a) requires an explanation; the omission necessitated reversal and remand for proper consideration.

Impact and Practical Implications

A) Drafting Lessons for Settlements in IP/Advertising Disputes

• Releases must be explicit to bar future conduct. Under Georgia law (mirroring general principles), a release of “future” claims demands clear language. Limiting the release to “pre‑execution” facts will not reach post‑settlement acts—even if the conduct is similar. Parties seeking peace from future keyword‑bidding claims must say so expressly (for example, “all claims based on acts occurring before and after the Effective Date, including future keyword bidding”).
• Beware contingent obligations that can evaporate. Making a covenant (such as curbing keyword bidding) contingent on agency approval, and declaring it “null and void” if approval does not issue, means the restraint may never bind. If a party intends obligations to survive a failed approval, draft a fallback (e.g., “reasonable alternative measures,” “good‑faith renegotiation,” or a unilateral covenant effective absent approval).
• Carve‑outs control. If a paragraph excludes a subject (keyword bidding) and assigns it to a separate paragraph, a court will respect that structure. Do not rely on general “prohibited conduct” clauses to capture a topic expressly carved out.
• Integration with preclusion. When settlements are incorporated into dismissals with prejudice, Norfolk Southern makes clear that the agreement’s scope defines claim preclusion. Narrow releases preserve future litigation space; broad releases extinguish it. Draft with preclusion in mind.

B) Litigation Strategy in Trademark and Online Advertising

• Post‑settlement acts are new claims. Infringement theories tied to ongoing or repeat advertising practices typically accrue with each use. Plaintiffs may bring suits targeting post‑execution conduct even if similar pre‑execution acts were released.
• Defending “continuation” arguments. Defendants cannot convert pre‑execution releases into blanket immunity by labeling later conduct a “continuation.” Unless the settlement clearly releases future acts, that theory is unlikely to prevail in the Eleventh Circuit.
• Recordkeeping matters. Because each alleged infringement can be a new claim, precise records of post‑settlement ad buys, bid terms, and campaign dates may be outcome determinative for both liability and damages windows.

C) Procedural Compliance

• Rule 56(a) requires reasons. District courts must explain summary‑judgment rulings on each claim. Failure to do so risks reversal and remand, adding time and cost to already complex disputes.

D) Persuasive Value in the Eleventh Circuit

The opinion is unpublished and therefore not binding precedent in the Eleventh Circuit. Nonetheless, its reasoning—especially the intersection of settlement drafting, Georgia release law, trademark accrual, and Norfolk Southern’s settlement‑controlled preclusion—will be persuasive in similar cases and influential in settlement negotiations across IP and unfair‑competition matters.