Objection is late to class.

Duggan, an non-named member of a class certified under Fed. R. Civ. P. 23(b)(1), made an untimely objection to the fairness of the class settlement. While he was not a named party, he sought to appeal under the doctrine recognized by Devlin v. Scardelletti, 536 U.S. 1 (2002), which allowed non-named class members “who have objected in a timely manner to approval of the settlement at the fairness hearing have the power to bring an appeal without first intervening.”  Unfortunately for Duggan, the Fifth Circuit found no reason to excuse his late objection, in particular rejecting the argument that his opponent was required to move to strike the objection in district court as a prerequisite to arguing waiver on appeal. Farber v. Crestwood Midstream Partners LP , No. 16-20742 (July 17, 2017).

Absence of proof.

Duncan, a Wal-Mart employee, slipped on a mat near an ice freezer in the store. She sued for her injuries and the Fifth Circuit affirmed summary judgment for the defense, noting several ways in which her proof of a dangerous condition was lacking: “In Duncan’s deposition—the only evidence she and Johnson submitted in support of their claim—she repeatedly explained that she did not know how water developed under the mat on which she slipped. Duncan couldn’t say whether water had ‘somehow leaked or spilled underneath the mat’ or whether ‘something on top of the mat . . . leaked through it.’ No one at Wal-Mart told her that they knew there was water in that area before she fell, and she didn’t know whether water had ever accumulated in that area before. Duncan also said that in the four years she worked at Wal-Mart, she had never heard of the Reddy Ice machine leaking, even though she knew other appliances, like the ‘Coke machine,’ leaked. ” Duncan v. Wal-Mart Louisiana LLC, No. 16-31223 (July 14, 2017).

For your next mock argument of Marbury v. Madison –

I recently participated in a mock reargument of Marbury v. Madison (right), albeit changed from the original to (1) actually have discussion about judicial review (2) actually have participation by my character, Attorney General Levi Lincoln, who in “real life” was ordered to stay silent by a highly irritated President Jefferson. In case you should ever need such a thing, here are my notes about the case against judicial review, which rely heavily upon an outstanding 1969 Duke Law Journal article by Professor William Van Alstyne.

Pass “Go,” but don’t collect immunity –

Litigation continues on the Texas tollroads, most recently producing a defamation lawsuit in BancPass v. Highway Toll Administration LLC, arising from letters sent by a company’s competitors to Google and Apple. The defendant unsuccessfully argued that the letters were immune from liability by the Texas privilege associated with court proceedings.

Before the Fifth Circuit, matters began well for the defendant – the Court concluded (1) that an immediate interlocutory appeal was allowed because the Texas privilege protects from suit, not just liability, and (2) while “[c]ertainly, the district court expressed its displeasure” at this issue arising late in the proceedings, it did not formally certify the appeal as frivolous (and thus avoided a line of cases that would otherwise have undermined defendant’s appeal right). But on the merits:

“Texas caselaw is clear that our analysis must focus on the connection between the communications and the specific legal action HTA now claims that it was contemplating, rather than legal action more broadly. The letters to Google and Apple in particular put forward bare accusations of unlawful conduct that was unrelated to HTA’s later tortious interference claim and that neither directly implicated HTA’s own legal rights nor constituted legal claims that HTA had any ability to pursue.”

No. 16-51073 (July 13, 2017).

How to get en banc rehearing –

The Fifth Circuit recently granted rehearing en banc in two civil cases – Ariana M. v. Humana Health Services, 853 F.3d 753 (5th Cir. 2017), which reviewed the decisions of an ERISA plan administrator, and In re: Doiron, 849 F.3d 602 (5th Cir. 2017), which addressed whether a contract was “maritime” in nature. The common thread? Both opinions made express appeals to the full court for review:

  • In Ariana, all three panel members who joined in the same opinion also joined in a special concurrence:  “As any sports fan dismayed that instant replay did not overturn a blown call learns, it is difficult to overcome a deferential standard of review. The deferential standard of review our court applies to ERISA decisions often determines the outcome of disputes that are far more important than a sporting event: decisions made by retirement and health plans during some of life’s most difficult times, as this case involving a teenager with a serious eating disorder demonstrates. So it is striking that we are the only circuit that would apply that deference to factual determinations made by an ERISA administrator when the plan does not vest them with that discretion.” (emphasis added)
  • And the conclusion of the unanimous Dorian panel opinion said: “It is time to abandon the Davis & Sons test for determining whether or not a contract is a maritime contract. The test relies more on tort principles than contract principles to decide a contract case. It is too flexible to allow parties or their attorneys to predict whether a court will decide if a contract is maritime or non-maritime or for judges to decide the cases consistently. The Supreme Court’s decision in Kirby reinforces this conclusion. Just as important, the above test will allow all parties to the contract to more accurately allocate risks and determine their insurance needs more reliably.” (emphasis added)

Patent venue in EDTex after TC Heartland –

While not within the usual subject matter of this blog, the general importance to Texas business litigation of the Eastern District’s June 30 decision in Raytheon Co. v. Cray, Inc. warrants attention. Raytheon sued Cray in the Marshall Division of the Eastern District for alleged infringement of at least two patents about supercomputer systems. After the Supreme Court’s recent opinion in TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S. Ct. 1514 (2017), Cray moved to transfer, arguing that it (1) did not reside in the district and (2) had not committed acts of infringement or had a regular and established place of business there. The Eastern District adopted a four-factor test and denied the motion, examining —

  1. physical presence “including but not limited to property, inventory, infrastructure, or people”;
  2. defendant’s representations “internatlly or externally, that is has a presence in the district”;
  3. benefits received from the defendant’s presence in the district, “including but not limited to sales revenue”; and
  4. “the extent to which a defendant interacts in a targeted way with existing or potential customers, consumers, users or entities within a district, including but not limited to through localized customer support, ongoing contractual relationships, or targeted marketing efforts.”

No. 2:15-CV-01554-JRG (June 29, 2017).

FDCPA summary judgment – for the plaintiff –

By summary judgment, Advanced Recovery Systems lost a case brought under section 8 of the Fair Debt Collection Practices Act, alleging that it failed to disclose on credit reports that the plaintiff disputed two allegedly unpaid debts. Procedurally, while the summary judgment did not follow the traditional Rule 56 schedule, the Fifth Circuit found no harm because ARS had admitted to the district court that there were no remaining issues of fact. Substantively, the Court rejected a challenge to Article III standing, finding that the plaintiff’s injury was sufficiently “tangible” — “[T]he violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact .. . . Among those circumstances are cases where a statutory violation creates the ‘risk of real harm’ . . . Unlike an incorrect zip code, the ‘bare procedural violation’ in [Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016)], an inaccurate credit rating creates a substantial risk of harm.” Sayles v. Advanced Recovery Systems, Inc., No. 16-60640 (July 6, 2017).

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).