Nicole Sieb Smith
Nicole Sieb Smith represents national and local businesses and institutions in diverse litigation matters with a focus on employment defense and commercial matters. An experienced litigator, Nicole represents clients in state and federal courts at both the trial and appellate levels, as well as before administrative boards.
Nicole represents employers in the public and private sectors in cases involving claims of discrimination, harassment, whistle-blower violations, wrongful termination, retaliation, and violation of civil rights. She has particular experience in defending website inaccessibility claims brought under the ADA and the Rehabilitation Act. She is also an experienced speaker on the topic of website accessibility, and is able to assist her clients to identify the legal considerations involved in auditing and remediating web content and to retain appropriate consultants.
Nicole represents individuals and companies in commercial litigation matters including contract and real estate disputes. Additionally, Nicole is part of a team of lawyers that handles commercial foreclosure and other real estate litigation matters, and represents attorneys, developers, brokers, title and closing agents against malpractice claims.
RumbergerKirk attorneys Nicole Smith, Samantha Duke, and Jeffrey Grosholz secured a final summary judgment in MSPA Claims 1, LLC v. Tower Hill Prime Insurance Co. in the United States District Court for the Northern District of Florida. Plaintiff, an alleged three times removed assignee of a now-defunct Medicare Advantage Organization, sued Tower Hill Prime Insurance Company and Tower Hill Claims Services, LLC, for double damages under the Medicare Secondary Payer Act. Plaintiff claimed Tower Hill was a primary payer under the Act, but that it had failed to make payments for Medicare-covered services provided to the original assignor’s enrollee. This was one of a plethora of class action lawsuits Plaintiff and its related entities have filed in Florida, as well as elsewhere nationwide, seeking recovery under the Medicare Secondary Payer Act for payments that entities such as Tower Hill should have allegedly paid.
Plaintiff’s case was predicated on a single Medicare Advantage enrollee’s claim, although it alleged to have more. Early attempts by Plaintiff to force Tower Hill to engage in data matching that would, Plaintiff argued, prove the existence of these alleged other claims were denied by the court. After extensive discovery, both parties moved for summary judgment. Plaintiff also moved for class certification. Following a hearing on the competing motions for summary judgment, the court requested supplemental briefing on the applicable statute of limitations. Namely, the statute of limitations for the federal government’s cause of action under the Medicare Secondary Payer Act is three years, whereas the Act is silent as to the private cause of action’s limitations period. The court thus asked the parties for argument on what the applicable statute of limitations should be. Both parties submitted additional briefing on the matter, with Tower Hill arguing, in part, that the government’s three-year statute of limitations should be borrowed while Plaintiff argued the six-year statute of limitations applicable to actions brought under the False Claims Act should be used.
After consideration, the court granted in part and denied in part Tower Hill’s motion for summary judgment, finding that Tower Hill Claims Services, as a third-party administrator, was entitled to summary judgment. But the court rejected Tower Hill’s argument that the government’s three-year statute of limitations was applicable; the court, however, left the question of the applicable statute of limitations open. Tower Hill subsequently moved for reconsideration, arguing that if the court were to borrow from state law, i.e., if it used Florida’s general limitations statute, a four-year statute of limitations would apply and Plaintiff’s claim would still be time-barred. The court decided to construe Tower Hill’s motion for reconsideration as a new motion for summary judgment, and allowed the parties to provide further briefing on the matter.
On the eve of the hearing on Plaintiff’s motion for class certification, the court handed down an order granting Tower Hill’s motion for summary judgment. Specifically, the court found that Florida’s limitations statute was more analogous to the Medicare Secondary Payer Act’s private cause of action than the False Claims Act, and thus a four-year statute of limitations applied. Having determined the appropriate statute of limitations, the court accordingly found that Plaintiff’s case could not survive because outside its single, time-barred exemplar claim, Plaintiff could not point to any other specific claim. As such, the court found Tower Hill was entitled to final summary judgment.
The court’s ruling is significant in that it represents one of the only instances where a court has analyzed—and actually answered—the question of the applicable statute of limitations in a case brought under the Medicare Secondary Payer Act’s private cause of action. This is noteworthy because, while the passage of the PAID Act in December 2020 has made it easier for primary payers to learn of the existence of Medicare Advantage Organizations—and, hopefully, to avoid instances where enrollees’ costs are not reimbursed by the proper entity—the continued absence of a statute of limitations for the private cause of action within the language of the Medicare Secondary Payer Act itself means entities still must turn to the courts and caselaw for this answer. Accordingly, this ruling in favor of Tower Hill stands as a marker entities can point to in defending claims such as these.
Case No.: 4:17-CV-00414-RH-CAS, 2018 WL 10560520 (N.D. Fla. June 8, 2018)
Defended 40 of the 67 school boards in the State of Florida against a complex federal employment class action in which plaintiffs alleged that the SAT/ACT requirements of Florida’s Best & Brightest program had a discriminatory impact on teachers who are black, Hispanic and over-40-years-old. In a major victory for the school boards, the court granted motion to dismiss, finding plaintiffs cannot seek money damages against the school boards, but can obtain only injunctive and declaratory relief. Plaintiffs withdrew the class action allegations against the school boards and ultimately entered into a class settlement with the FDOE.
254 So. 3d 628 (Fla. 5th DCA 2018)
Reversing denial of motion for directed verdict and holding that palm tree planter square was not a “dangerous condition.”
296 F.Supp.3d 181, 2018 WL 910719 (D.D.C. Feb. 15, 2018)
Dismissing lawsuit and finding that Administrative Procedure Act did not apply to college’s actions, and thus subject matter jurisdiction was lacking
RumbergerKirk attorneys Josh Lerner and Nicole Smith secured a final summary judgment in MSP Claims 1, LLC v. Infinity Auto Insurance Company in the U.S. District Court for the Southern District of Florida. Plaintiff, an alleged three times removed assignee of a Medicare Advantage Organization, sued for double damages under the Medicare Secondary Payer Act. Plaintiff claimed Infinity was a primary payer under Medicare but had failed to make primary payments for Medicare covered services provided to the original assignor’s enrollee. After the completion of discovery, both parties moved for summary judgment.
The original assignment required the approval of the original assignor to any subsequent assignments. Plaintiff testified in deposition that such approval had been secured orally in conversations between its lead counsel and representatives of the original assignor but there was no other evidence of that. And, plaintiff successfully obtained a protective order when Infinity sought to depose its counsel. In opposition to summary judgment, although it submitted an affidavit of its lawyer, plaintiff was unable to produce admissible evidence showing it received the required approval. This was one of a plethora of cases this and related plaintiffs have filed in Florida and elsewhere seeking recovery under the Medicare Secondary Payer Act for payments that, allegedly, others, not Medicare, should have paid.
Case No.: CIV–14–177–R, 2014 WL 2982919 (W.D. Okla. July 1, 2014)
Dismissing case on the grounds that Oklahoma Governmental Tort Claims Act barred the suit.
110 So. 3d 105 (Fla. 4th DCA 2013)
Affirming summary judgment and holding that subcontractor’s employee was the statutory employee of dealership.
- Banking and Financial Institutions
- Florida Association of Association Executives
- Florida Bar Association
Vice Chair, Student Education and Admissions to the Florida Bar Committee (2008-2011)
- Tallahassee Association of Women Lawyers (TAWL)
University of Miami School of Law — J.D., magna cum laude, 2005
- Staff Editor for the Inter-American Law Review
- Member of the Executive Board of the Moot Court Board
- Member of Duberstein National Bankruptcy Moot Court Team
- Intern for the Center for Ethics and Public Service
- Thomas Ewald Award (Highest award given in Litigation Skills Program)
- Order of the Coif
- Order of Barristers
Smith College — B.A., cum laude, 1996
London School of Economics and Political Science — General Course, 1995
- Florida — 2005
- U.S. Court of Appeals, 11th Circuit
- U.S. District Courts of Florida (Southern, Middle, Northern)
- Listed in Florida Super Lawyers Rising Star 2012, 2013, 2014
- Author, "Confusion Follows Eleventh Circuit Decision In Seminal ADA Website Case Vacating Its Prior Ruling In Favor Of Winn-Dixie Based On Mootness," January 2022
- Co-Presenter, "Employment Law Concerns," CEO Roundtable event for Florida Society of Association Executives, September 2021
- Author, "Eleventh Circuit Vacates First-of-Its-Kind ADA Website Accessibility Judgment Against Grocery Store Chain," April 11, 2021
- Co-Author, "Fifth DCA Finds Florida’s Private Whistleblower Act Requires Proof of But-For Causation," December 15, 2020
- Author, "Remain Mindful Of ADA Mask Policies," Independent Retailer, October 6, 2020
- Co-Author, "INSIGHT: Can Retailers Refuse to Serve Maskless Customers? Check ADA Rules," Bloomberg Law, September 16, 2020
- Co-Author, "Coronavirus Q&A: A Legal Resource Guide for Employers, March 2020
- Author, “How Businesses Can Defeat Website Accessibility Lawsuits,” Bloomberg Law, December 13, 2019
- Author, "More ADA Lawsuits Targeting Mobile Apps Are Likely Ahead," Law360, October 2019
- Presenter, "How to Avoid Expensive ADA Website Accessibility Claims," Association of Corporate Counsel South Florida, October 2019
- Author, "What Law Enforcement Executives Need To Know About Website Accessibility Claims," Red Alert Email, Florida Police Chiefs Association, April 25, 2019
- Presenter, "Legal Topics," Florida Society of Association Executives Tallahassee Roundtable, September 26, 2018,
- Co-Author, "5 Reasons Your Sexual Harassment Training Isn’t Working," Law360.com, December 7, 2017
- "Blind Plaintiff Prevails in First-of-Its-Kind ADA Website Accessibility Trial against Grocery Store Chain," June 14, 2017
- Presenter, “What You Need to Know about ADA Website Accessibility Claims,” Live Webinar Presentation to Willis Towers Watson, Risk Control and Claim Advocacy Practice, May 2017
- "FCRA Retaliation Claims Require Proof of But-For Causation According to Fourth DCA," April 2017
- "What Restaurants Need to Know About Website Accessibility Claims," Florida Restaurant & Lodging Magazine, Spring 2017
- Presenter, "Recent Developments in State & Federal Employment Law" and "Responding to EEOC and State Agency Charges," NBI Advanced Employment Law Seminar, February 2017
- "What to Know About Website Accessibility Claims," PGIT Preferred News, Winter 2016
- “How to Avoid Expensive Website Accessibility Claims,” Live Webinar Presentation to the Florida Retail & Lodging Association, November 2016
- “How to Avoid Expensive Website Accessibility Claims,” Live Webinar Presentation to the Florida Retail Federation, November 2016.
- Co-Author, "What to Know About Website Accessibility Claims," June 2016
- Co-Presenter - Social Media and Texting - Considerations and Practice Pointers 23rd Annual Joint DIF/SIU Conference - Fighting Insurance Fraud Through Education and Commitment, June 2015
- Co-Presenter, "Maximizing Recovery in the Wake of Insurance Fraud," 22nd Annual FIFEC Conference, June 2014