From the second third of 2012, here are 5 commercial litigation cases from the U.S. Court of Appeals for the Fifth Circuit worth knowing:
1. Personal jurisdiction. “[O]ff-the-shelf, out-of-the-box” software contract did not create a “long-term interactive business relationship” with Texas. Pervasive Software v. Lexware GMBH & Co., No. 11-50097 (5th Cir. July 20, 2012).
2. Class certification. No “commonality” for claims about “whether each individual qualified for the discount based on the evidence in his or her file.” Ahmad v. Old Republic Nat’l Title Ins., No. 11-10695 (5th Cir. Aug. 13, 2012).
3. Daubert challenges rejected. Several issues about mechanical engineering testimony “ultimately . . . affected the weight of the evidence” rather than admissibility. Roman v. Western Manufacturing, No. 10-31271 (5th Cir. Aug. 17, 2012)
4 and 5. Satisfying Twombly and Iqbal
Not enough: pleading that “invokes three potentially cognizable theories of liability,” but “does not identify by date or amount or type of service, any of the alleged bad-faith denials and delays . . . .” Patrick v. Wal-Mart, 681 F.3d 614 (5th Cir. 2012).
Not enough: “no allegations regarding the types of businesses . . . the size . . . where they are located, or what laws and regulations they have violated.” Bowlby v. City of Aberdeen, 681 F.3d 215 (5th Cir. 2012).
Compare: “Particularity” standard under FRCP 9(b) “require[s] a plaintiff pleading fraud to specify the statements contended to be fraudulent, identify the speaker, state when and where the statements were made, and explain why the statements were fraudulent. . . . the who, what, when, where, and how of the events at issue.” E.g., Dorsey v. Portfolio Equities, 540 F.3d 333, 339 (5th Cir. 2008).