Here is a condition precedent.

A recurring issue in contract litigation is whether a provision creates a “condition precedent” to the performance of other obligations. In Red Hook Communications I, LP v. On-Site Manager, Inc., the Fifth Circuit identified this provision as one that “plainly creates a condition precedent that both [parties] must comply with before either can bring suit (and thus, denying subject matter jurisdiction if it is not complied with): “[T]he Indemnifying Party and the Indemnified Party will, for a period of sixty (60) days following delivery of such objection, use good faith efforts to resolve the Dispute.” No. 16-11351 (July 3, 2017, unpublished).

If the ghost of Lochner lurks about, it must pay toll.

In St. Joseph Abbey v. Castille, 712 F.3d 215 (5th Cir. 2013), the Fifth Circuit struck down a state-law restriction on the sale of funeral caskets by a monastery, finding that the state had no rational basis for that restriction. Cautious about encouraging similar challenges to economic regulation, the Court warned: “Nor is the ghost of Lochner lurking about. . . . We insist only that Louisiana’s regulation not be irrational—the outer-most limits of due process and equal protection . . . . ”

The recent case of Reyes v. North Texas Tollway Authority confiirms that if the ghost of Lochner chooses to lurk on Dallas-area tollways, it will have to pay its toll charges timely. It found that the NTTA’s system for charging late fees has a rational basis in both its legitimate need to recover collection costs and desire to encourage the use of TollTags, and concluded: “The Zip Cash system with its challenged fees is the type of novel policymaking for which the limited scrutiny of rational basis review is most justified. . . . The political process may continue to fine tune toll collection, but that is not the Due Process Clause’s role to play.”

In so doing, the Court clarified a sometimes-confusing principle about the legal standard: “[G]overnment action that applies broadly gets rational basis [review]; government action that is individualized to one of a few plaintiffs gets [‘]shocks the conscience[‘] review.” No. 16-10767 (June 27, 2017).

Sorry, Servisiar.

Servisair bought a workers’ compensation policy from Liberty Mutual, “There is no dispute that Servisair significantly over-allocated payroll to clerical employees, which is a considerably less expensive classification.” Thus, after the payroll period ended and an audit concluded, Liberty Mutual billed Servisair for $3.6 million in additional premium. Servisair alleged a mistake in the “underlying factual basis” relied upon “in negotiating and agreeing to the policy,” but the Fifth Circuit sided with Liberty Mutual, noting that the policy expressly stated: “If the final premium is more than the premium [Servisair] paid to [Liberty Mutual], [Servisair] must pay [Liberty Mutual the balance.” In other words, “[t]his is an open-ended obligation with no limit on the amount of additional premium Servisair might ultimately owe.” In sum: “Servisair made a deal that, in retrospect, it did not like. That does not allow it to rewrite or avoid its obligations.” Liberty Mutual Ins. Co. v. Servisair, LLC, No. 16-20472 (June 27, 2017, unpublished).

No res judicata, when claims arise during the first suit –

Welsh unsuccessfully sued her employer for allegedly retaliating against her for filing an EEOC charge in 2012. Welsh then sued her employer again in 2015, alleging discrimination based on incidents occurring between April and December of 2014. The district court granted summmary judgment for the defense on res judicata grounds, and the Fifth Circuit reversed. Reviewing Texas law about claim preclusion, pleading amendments, and compulsory counterclaims, the Court concluded: “[W]e reject [Defendant’s] argument that Welsh was required to amend her petition in Welsh I to include claims that were not mature at the time of filing Welsh I. We specifically reject the idea that every time something happens after a lawsuir is filed the plaintiff must immediately amend or risk losing that claim forever.” Welsh v. Fort Bend ISD, No. 16-20538 (June 22, 2017).

How to conspire, and when –

In the course of affirming a substantial judgment for misappropriation of trade secrets, the Fifth Circuit made an interesting observation in a footnote about liability for civil conspiracy under Texas law: “For instance, [Defendant] argues he is entitled to judgment on the conspiracy to misappropriate claim because such a claim is barred by Texas’ intra-corporate conspiracy doctrine, i.e., that a corporation and its employees cannot conspire with each other in carrying out a company’s business. He has presented no case applying it to the instant situation, where the conspiracy predated even the creation of the company at issue. Here, [Defendant] stole [Plaintiff’s] trade secrets months before the creation of SXP, and the creation and operation of SXP was the means by which the conspiracy was carried out.” Quantlab Technologies v. Kuharsky, No. 16-20242 (June 22, 2017, unpublished).

 

Exemplary Example

While otherwise affirming a judgment in the plaintiff’s favor, in Merrit Hawkins & Associates v. Gresham the Fifth Circuit vacated an award of exemplary damages under Texas law in a non-compete case. It distinguished the plaintiff’s authorities by saying: “Unlike in those cases, the only argument and evidence that [plainitff] MHA presented to the jury on the issue of exemplary damages was that [defendant] Consilium intentionally breached the non-compete contract. MHA claimed that ‘the circumstances of this case [were] quite egregious, that everything was intentional, [Consilium] knew [MHA] had these agreements . . . and they breached them anyway.’ However, this is the exact type of argument that the Texas Supreme Court explains is insufficient to show malice when an element of the underlying cause of action is willful harm. Even drawing all inferences in favor of MHA, the additional evidence MHA points to is insufficient to show that Consilium acted with specific intent to cause substantial harm to MHA. The proximity of the two businesses, without more, does not lead to the conclusion that Consilium acted with malice towards MHA. And the fact that Consilium’s founder was a partner at MHA was not raised for the purpose of showing that MHA engaged in a strategic plan of hiring away MHA employees to harm it, but rather to show that Consilium was aware that MHA’s employees had non-compete agreements. Moreover, MHA has never claimed that Consilium induced [the employee] to steal or use its proprietary information . . . .” No. 16-10439 (June 21, 2017).

Reminder about FRAP 28(j) submissions –

The Fifth Circuit website has recently posted an “Important Note Regarding FRAP 28(j) Filings,” which reminds: “Counsel sometimes file a FRAP 28(j) letter after oral argument, ostensibly to provide information requested by the court, but make supplemental argument in the filing. . . . [U]nless authorized or requested by the panel, it is improper to make supplemental argument in the letter.”

Dental regulations gummed up by the First Amendment

Longtime Texas practitioners will remember when lawyer ads had to contain a cumbersome notice that the attorney was “NOT BOARD CERTIFIED – TEXAS BOARD OF LEGAL SPECIALIZATION” if he or she did not have a TBLS certification.  The dental field bit into a similar regulation in American Academy of Implant Dentistry v. Parke, which prohibited claims of specialization in areas not recognized by the American Dental Association. The Fifth Circuit panel majority, after chewing on the First Amendment framework for the regulation of commercial speech, found a poor bridge between the asserted government interest and the scope of the regulation, making it unconstitutional. A dissent would have affirmed the regulation as addressing “inherently misleading” speech, which is rooted in a different First Amendment framework. No. 16-50157 (June 19, 2017).

No claim yet? Then no estoppel, either.

In ASARCO LLC v. Montana Resources, Inc., a case involving the interplay of a business’s bankruptcy with a later lawsuit for breach of contract by that business, the Fifth Circuit observed:

  • “[A] declaratory claim on its own typically will not preclude future claims involving the same circumstances (as noted, issue preclusion may still apply to any declaration the court issues). But in a case involving both declaratory claims and ones seeking coercive relief, the former will not serve as an antidote that undoes the preclusive force that traditional claims would ordinarily have.” (applying the “seminal case” on the point, Kaspar Wire Works, Inc. v. Leco Engineering & Machine, Inc., 575 F.2d 530 (5th Cir. 1978))
  • As to the damages claim, “ASARCO’s claim for failure to reinstate did not accrue until MRI rejected the tender in 2011. . . .  ASARCO may or may not have attempted to cure, and MRI may or may not have denied ASARCO’s reinstatement. Because the present breach of contract claim was contingent on future events, ASARCO could not have brought it during the adversary proceeding.”
  • For the same reasons, the plaintiff was not judicially estopped by allegedly inadequate disclosures during the earlier bankruptcy: “MRI cites no case requiring a party to disclose a potential claim for breach of contract when the contract had not yet been breached. This makes sense, because MRI’s position would require a debtor to scour its contracts looking for hypothetical claims that another party could maybe breach in the future.”

No. 16-40682 (June 2, 2017).

Wonkier than the Rooker-Feldman doctrine . . .

For those who enjoy topics even more arcane than the basic Rooker-Feldman doctrine, there is Kreit v. Quinn, No. 16-20744 (June 13, 2017, unpublished). A state court appointed a receiver for a hospital, which then entered bankruptcy. The bankruptcy court approved a sale, a doctor strenuously objected to the sale after the fact, and the court sanctioned the doctor for his filings. On appeal, the receiver contended that the doctor’s filings were barred by the Rooker-Feldman doctrine as a collateral, federal attack on a state court order. The doctor asked the Fifth Circuit to recognize an exception to that doctrine for orders that are void ab initio. But while noting a circuit split on the point, the Court declined to weigh in, finding that the state court had the needed authority.

Not admissible, but genuine –

Lee sued for his injuries from a fall on the M/V BALTY (right). In resolving the defendant’s summary judgment motion, “[t]he district court dismissed Captain Jamison’s report solely because it was not sworn without considering Lee’s argument that Captain Jamison would testify to those opinions at trial and without determining whether such opinions, as testified to at trial, would be admissible.” The Ffith Circuit remanded for reconsideration in light of a 2010 amendment to Fed. R. Civ. P. 56 that says (as summarized by Moore’s Federal Practice): “Although the substance or content of the evidence submitted to support or dispute a fact on summary judgment must be admissible . . . , the material may be presented in a form that would not, in itself, be admissible at trial.” Lee v. Offshore Logistical & Transport, LLC, No. 16-31049 (June 9, 2017).

Dec action not ripe

Total Gas, the American subsidiary of the large French energy concern, sued for a declaratory judgment that FERC could not impose certain penalties under the Natural Gas Act. But while FERC had begun an administrative proceeding against Total, that case had to proceed through several more steps before any penalty would be assessed. Accordingly, the dispute was not ripe for adjudication. The “step by step” analysis of ripeness in this case appears to be of general applicability to other cases involving conditions precedent. Total Gas v. FERC, No. 16-20642 (June 8, 2017).

Sign, on the line.

The common situtation of a loan modification raised two general issues – (1) given the princple that “all parts of a contract should be read so that none will be rendered meaningless,” the outcome is not clear if a modification has a signature line, when companied by “contratual language [that] indicated that once the [borrowers] performed, their loan would be modified automatically and [the servicer] would be bound by the Agreement” – and (2) given that the Statute of Frauds in Texas for loan agreements generally involves oral agreements or agreements that clearly require signature by both parties, it is not clear if “the written offer itself, along with the attached Modification Agreement” would satisfy that status. Owens v. Specialized Loan Servicing LLC, No. 16-20557 (June 5, 2017).

Arbitration right waived by litigation conduct

Vine v. PLS Financial Services presents the infrequently-encountered waiver of arbitration rights by litigation conduct. PLS made a short-term loan to Vine; to obtain such a loan, a PLS customer must present a blank or post-dated check sufficient to cover the loan amount and a finance charge. PLS and Vine had a broad, general arbitration agreement. The Fifth Circuit found that PLS waived that right when it submitted inaccurate “worthless check affidavits” under Texas law after Vine defaulted. It held that the issue of waiver by litigation conduct, as distinct from waiver by failure to comply with a contractual condition precedent, was appropriate for the court rather than an arbitrator. And, the general clause here did not have specific language about that particular waiver issue. A dissent questioned whether submitting the affidavits amounted to “substantial invocation” of the judicial process, as required for waiver of an arbitration right. No. 16-50847 (May 19, 2017, unpublished).

Buyer beware. Or get an assignment of the seller’s rights.

Guilbeau bought real property and sued Hess Corporation for alleged contamination resulting from oil and gas drilling done several years before. Acknowledging that the Louisiana Supreme Court had not ruled on the precise issue presented – whether the “subsequent purchaser” rule applied to mineral interests – the Fifth Circuit concluded that Louisiana law would bar Guilbeau’s claim. A consensus of Louisiana intermediate courts, applying the most analogous authority from that state’s Supreme Court, reasoned “that while mineral rights in the lessee are real rights, a lessor’s rights, including the right to sue for damages, are personal and do not automatically transfer with the property” absent an assignment. Guilbeau v. Hess Corp., No. 16-30971 (April 18, 2017).

Well, you proved liability . . .

The Fifth Circuit reversed a JNOV on liability for breach of contract in Kerr v. Mapei Corp., holding: “The jury was presented with two alternative, but plausible, accounts of the formation and authorization of a contract. The jury reasonably selected one of those alternatives.” As to consequential-type damages for lost profits for other sales, however, the Court affirmed the judgment for the defendants, finding that the plaintiff’s damages model “was not supported by any empirical analysis or any evidence outside of the [contract] relationship . . . (e.g., real-world sales, customer surveys, or current market demand).” In particular, it noted the lack of evidence that the substantial business opportunity related to the contract would recur, the fact that the contract was terminable at will, and the lack of weight for a party’s own “unsubstantiated, self-serving speculations” about future business. No. 16-10430 (May 23, 2017, unpublished).

BP settlement gets real, more or less.

The Herculean effort of settling the many lost-profits claims related to the Deepwater Horizon accident led to a claims process described by the Fifth Circuit as follows – “Somewhat simplified, and more than somewhat condensed, the claims process works as follows: The Claims Administrator compares a claimant’s financial performance prior to and after the spill. If the former is greater than the latter, BP is liable for the difference.
Causation is, in all other respects, presumed.”

Efforts to implement this process led to guidelines “requiring the Claims Administrator to move, smooth, or otherwise reallocate revenue for claimants engaged in construction, education, agriculture, and professional services. Claimants in these four industries tend to be paid in lump sums, which are capable of generating damages awards that do not comport with tort principles.”

Mindful that in an earlier dispute about these issues, the Court had reminded that “[i]n interpreting a settlement, surely some weight has to be given to what damages recoverable in civil litigation actually are,” the Court reversed the use of these particular guidelines: “[W]e decline to re-write the Settlement Agreement under the guise of contractualinterpretation. When we said . . . that the Claims Administrator should ‘process claims in accordance with economic reality,’ we assumed that doing so would comport with the text of the Settlement Agreement. . . . [, which] grants claimants the right to choose their own Compensation Period.” Lake Eugenie Land & Devel. v. BP, No. 15-30377 (May 23, 2017).

Objectively unreasonable removal

A business named “Renegade Swish” sued Wright in Texas state court for breach of an employment agreement. Wright counterclaimed for violations of the FLSA. For reasons not explained in the opinion, Swish then nonsuited its contract claims, moved to realign the parties so it would be the new defendant, and removed the case to federal court based on federal jurisdiction. The Fifth Circuit held that Swish lacked an objectively reasonable basis for removal, citing both precedent (primarily, Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U.S. 826 (2002)), and the text of 28 U.S.C. § 1441(a), which refers to removal by “defendants.” The Court did not credit Swish’s reliance on the pending motion to realign, declining to “invite federal courts to dream of counterfactuals when actual litigation has defined the parties’ controversy,” and rejected the cases cited by Swish as not presenting a meaningful conflict: “As compared to [a controlling case]m where the disagreement among the courts was ‘hotly contested,’ any disagreement here is tepid and lopsided.” Renegade Swish v. Wright, No. 16-11152 (May 22, 2017).

SCOTUS 8-0 – fewer patent cases to EDTEX

While arising from the Federal Circuit’s patent jurisdiction rather than the Fifth Circuit, the Supreme Court’s unanimous May 22 decision in TC Heartland LLC v. Kraft Foods Group Brands LLC is of great interest to all local corporations involved in patent litigation: “As applied to domestic corporations, ‘reside[nce]’ in [28 U.S.C.] § 1400(b) refers only to the State of incorporation.”

Filed first, but not first-to-file –

Green Tree Servicing, LLC v. Clayton involved an unusual argument about the “first-to-file rule, in the context of two actions pending before the same district judge. The Fifth Circuit observed: “[T]he concerns undergirding the firstto-file rule are not triggered when the cases are before the same judge. The first-to-file rule is aimed at avoiding both conflicting rulings on similar issues and duplicative rulings. But when the same judge is deciding both cases, there is no danger of conflicting rulings.” No. 16-60726 (May 18, 2017, unpublished).

How not to maintain privilege – 4 key points for privilege logs

Document logs are a necessary, if unloved, feature of privilege disputes. A privilege log is inherently difficult to create, since it must describe the relevant documents but not reveal the privileged information in them. And because a log often lists many documents on the same subject, it can quickly become dull and repetitive. But proper preparation of a log is key to litigating about privilege, as the Fifth Circuit recently held in EEOC v. BDO Seidman LLP when it rejected the sufficiency of the defendant’s log in an employment case. No. 16-20314 (May 4, 2017). The opinion provides four practical tips for attorneys involved in privilege disputes.

The case began when Hang Bower, a former HR manager at BDO Seidman, alleged that she had been subjected to gender discrimination. In response to an EEOC subpoena, BDO prepared a privilege log listing 278 documents. The EEOC filed an enforcement action in federal court, offering a declaration from Bower in support. In it, she said that many of the communications “were made for the primary purpose of conveying business directives or factual information.” She also said that “BDO required her . . . to include in HR-related emails a false designation that the communication was prepared ‘at the request of legal counsel.’”

The magistrate judge found that BDO’s log was adequate, declined to do an in camera review of the documents, and denied relief to the EEOC. The district judge affirmed and the Fifth Circuit reversed, identifying four particular areas of concern:

  1. Substance. “[N]umerous log entries fail to identify a sender, recipient, date, or provide a substantive description of the subject matter . . . [s]ome entries have only vague descriptions such as ‘discrimination claim,’ ‘internal investigation,’ or ‘work environment claim’”
  2. Email chains. “Emails involving counsel are also problematic, as the log’s descriptions do not indicate whether a particular entry consists of one email or a string of emails – a distinction that may be dispositive as to whether the privilege applies.”
  3. Business/Legal distinction. “[N]ot only does the log include conclusory descriptions of ‘legal advice,’ it does so in the context of communications with in-house counsel – an area court have acknowledged presents unique challenges . . . further compounded where HR personnel, such as Bower, are involved.” The Court noted the issues raised in Bower’s declaration.
  4. Disclosure. “[T]he log leaves open questions about (1) whether emails courtesy copied to a third party remained privileged . . . (2) whether matters communicated to attorneys were done so with the intention of remaining privileged . . . and (3) whether non-attorney individuals to whom communications were sent were within the sphere of confidence . . . .”

Because the log lacked sufficient detail to establish BDO’s prima facie case of attorney-client privilege as to all the entries, the Fifth Circuit found that the magistrate judge’s legal analysis was flawed and remanded. The Court observed: “Although we leave to the district court’s discretion how to proceed on remand, we note that in camera review will likely be necessary given the facts and circumstances of this case.”

In addition to reminding about four key components of a good privilege log, this opinion reinforces the importance of evidence in resolving a privilege dispute. Bower’s declaration raised questions about the information in the log, which could not be resolved by the log entries themselves. Counsel preparing a privilege log thus needs to not only consider the completeness of the log entries, but how those entries will be supported by evidence and in camera review if there are further proceedings.

Case goes to arbitration, case stays in arbitration.

The district court in Salas v. GE Oil & Gas ordered arbitration in 2014 and dismissed the case. The arbitration did not proceed. Each side blamed the other; the district court had a status conference in 2016; and afterwards, withdrew its earlier order and reopened the case. The Fifth Circuit found that the district court lacked jurisdiction to do so, as its 2016 order “did not fall within the narrow scope of th[e] ancillary jurisdiction” provided by section 4 of the FAA: “The court neither determined whether the parties’ agreement to arbitrate was valid nor enforced that agreement. Instead, the court found that the parties had ‘failed’ to arbitrate and withdrew its prior order compelling arbitration. This was not permitted under the FAA.” No. 16-20379 (May 12, 2017).