Hot Potatoes

Gatheright bought sweet potatoes from Clark, paying with two post-dated checks. When they were returned for insufficient funds, Clark instituted criminal proceedings against Gatheright, which were ultimately dismissed after Gatheright spent several weeks in jail. Gatheright then sued Clark for malicious prosecution and abuse of process. The Fifth Circuit affirmed summary judgment for Clark, observing that “$16,000 in bad checks . . . [is] a sum greater than what the Mississippi Supreme Court has previously found would prompt a reasonable person to institute criminal proceedings.” Based on that observation, the Court rejected arguments about whether a post-dated check was a proper basis for a “false pretenses” prosecution in Mississippi, and about the effect of Gatheright’s filing for personal bankruptcy. Gatheright v. Clark, No. 16-60364 (Feb. 23, 2017, unpublished).

Certified questions answered about Texas home equity loans.

seal_of_the_supreme_court_of_texasLast year, the Fifth Circuit certified these two questions to the Texas Supreme Court:

1. Does a lender or holder violate Article XVI, Section 50(a)(6)(Q)(vii) of the Texas Constitution, becoming liable for forfeiture of principal and interest, when the loan agreement incorporates the protections of Section 50(a)(6)(Q)(vii), but the lender or holder fails to return the cancelled note and release of lien upon full payment of the note and within 60 days after the borrower informs the lender or holder of the failure to comply?

2. If the answer to Question 1 is “no,” then, in the absence of actual damages, does a lender or holder become liable for forfeiture of principal and interest under a breach of contract theory when the loan agreement incorporates the protections of Section 50(a)(6)(Q)(vii), but the lender or holder, although filing a release of lien in the deed records, fails to return the cancelled note and release of lien upon full payment of the note and within 60 days after the borrower informs the lender or holder of the failure to comply?

The TTexasBarToday_TopTen_Badge_VectorGraphicexas Supreme Court answered both questions “no” in Garofolo v. Ocwen Loan Servicing, No. 15-0437 (Tex. May 20, 2016). Accordingly, the Fifth Circuit affirmed the dismissal of the plaintiff’s contract claim in Garofolo v. Ocwen Loan Servicing, No. 14-51156 (Oct. 3, 2016, unpublished).

“Intertwined claims” estoppel requires arbitration.

stopsignHays, a cardiologist suffering from epilepsy, sued HCA for wrongful discharge as a result of mishandling his illness. The Fifth Circuit agreed that his tortious interference claim against HCA had to be arbitrated, because its viability depended on reference to the employment agreement between him and the specific hospital where he worked. It also affirmed on the theory of “intertwined claims estoppel,” making an Erie guess that the Texas Supreme Court would recognize this theory, and concluding that “Hays’s current efforts to distinguish amongst defendants and claims are the archetype of strategic pleading intended to avoid the arbitral forum, precisely what intertwined claims estoppel is designed to prevent.” Hays v. HCA Holdings, No. 15-51002 (Sept. 29, 2016).

The Erie Railway keeps a-rollin’

erie railwayThe Fifth Circuit recently denied en banc review — by a “photo finish” 8-7 vote — of Passmore v. Baylor Health System, which concluded that Texas’s expert report requirements for medical malpractice cases were procedural and did not apply in federal court under the Erie doctrine. A dissent argued that this vote was inconsistent with the recent en banc opinion in Flagg v. Stryker Corp. that analyzed a comparable requirement of Louisiana law.

Fore! Golf Channel returns to the Fifth Circuit.

foreFor some time, the Golf Channel and the receiver for Allen Stanford’s affairs have disputed whether the Channel gave value in exchange for the purchase of roughly $6 million in advertising. The Channel contended that it did by giving exactly the advertising that Stanford ordered; the receiver disagreed, noting that Stanford was running a valueless Ponzi scheme. On certification from the Fifth Circuit, the Texas Supreme Court sided with the Channel, holding that under the Texas version of the Uniform Fraudulent Transfer Act, the Channel gave value from an objective perspective. The Fifth Circuit accepted that holding as to this case, but noted: “The Supreme Court of Texas’s answer interprets the concept of ‘value’ under TUFTA differently than we have understood ‘value’ under other states’ fraudulent transfer laws and under section 548(c) [of] the Bankruptcy Code.” Janvey v. Golf Channel, No. 13-11305 (Aug. 22, 2016).

Erie Railroad collides with tort reform

erie railwayPresenting a textbook Erie problem, Passmore sued Baylor Regional Medical Center about his back surgeries in federal court based on bankruptcy jurisdiction. The defendants obtained dismissal on the expert report requirements in section 74.351 of the Texas Civil Practice & Remedies Code. Reviewing the requirements of that statute, the requirements of the Federal Rules of Civil Procedure governing discovery, and district court opinions on the matter, the Fifth Circuit reversed, holding: “Section 74.351’s regulation of discovery and discovery-related sanctions sets it apart from the pre-suit requirements in the cases cited by the defendants and brings it into direct collision with Rules 26 and 37.”   Passmore v. Baylor Health Care System, No. 15-10358 (May 19, 2016).

Golf Channel gets out of the rough

golf roughAfter a bad start in the Fifth Circuit, the Golf Channel ultimately prevailed in the Texas Supreme Court in a fraudulent transfer case against the Allen Stanford receiver.  The Channel ran advertisements for Stanford’s golf business in exchange for payments of roughly $6 million.  The issue was whether the “value” of those ads, for purposes of the Channel’s defenses under TUFTA, “became valueless based on the true nature of the debtor’s business as a Ponzi scheme or the debtor’s subjective reasons for procuring otherwise lawful services.”  The Texas Supreme Court ruled for the Channel, finding that “TUFTA does not contain separate standards for assessing ‘value’ and ‘reasonably equivalent’ value based on whether the debtor was operating a Ponzi scheme. . . .  “[V]alue must be determined objectively at the time of the transfer and in relation to the individual exchange at hand rather than viewed in the context of the debtor’s entire enterprise, . . . the debtor’s perspective, or . . . a retrospective evaluation of the impact it had on the debtor’s estate.”  Janvey v. Golf Channel, No. 15-0489 (Tex. Apr. 1, 2016).

Erie SLAPP

slapp-graphicIn another case that defly manuevers around the thorny Erie issues presented by state anti-SLAPP laws, the Fifth Circuit reminded that Louisiana’s law imposes a burden that “is the same as that of a non-movant opposing summary judgment under Rule 56.” (applying Lozovyy v. Kurtz, No. 15-30086 (5th Cir. Dec. 29, 2015)).  The Court assumed the law would apply, but noted: “We do not conclusively resolve today whether Article 971 applies in diversity cases.”  Block v. Tanenhaus, No. 15-30459 (March 7, 2016).

SLAPPing around the Erie doctrine?

slapp-graphicThe Texas anti-SLAPP law (the “TCPA”) imposes a number of deadlines that can fit awkwardly with federal practice.  The panel majority in Cuba v. Pylant concluded that when no hearing is held on a TCPA motion as required by the statute (hearings being common in Texas state practice but not in federal court), appeal-related deadlines that start from the hearing date do not begin to run.  A dissent said: “Applying an Erie analysis, I conclude that the TCPA is procedural and must be ignored.”  Nos. 15-10212 & -10213 (Feb. 23, 2016).

Attorneys fee recovery for insurance coverage claims?

scotxbuildingCameron International, a main defendant in the Deepwater Horizon cases, successfully sued Liberty Insurance to help cover its substantial settlement costs. After affirming on the merits, the Fifth Circuit certified this question to the Texas Supreme Court: “Whether, to maintain a cause of action under Chapter 541 of the Texas Insurance Code against an insurer that wrongfully withheld policy benefits, an insured must allege and prove an injury independent from the denied policy benefits?” Cameron International Corp. v. Liberty Ins. Underwriters, Inc., No. 14-31321 (Nov. 19, 2015).

Oklahoma law wins “Red River Shootout” in noncompete case

texas-ouCardoni v. Prosperity Bank, an appeal from a preliminary injunction ruling in a noncompete case, involved a clash between Texas and Oklahoma law, and led to these noteworthy holdings from the Fifth Circuit in this important area for commercial litigators:

  • Under the Texas Supreme Court’s weighing of the relevant choice-of-law factors, Oklahoma has a stronger interest in the enforcement of a noncompete than Texas, “with the employees located in Oklahoma and employer based in Texas”;
  • As also noted by that Court, “Oklahoma has a clear policy against enforcement of most noncompetition agreements,” which is not so strong as to nonsolicitation agreements;
  • The district court did not clearly err in declining to enforce a nondisclosure agreement, given the unsettled state of Texas law on the “inevitable disclosure” doctrine; and
  • “[T]he University of Texas leads the University of Oklahoma 61-44-5 in the Red River Rivalry.”

No. 14-20682 (Oct. 29, 2015).