In Kipp Flores Architects v. AMH Creekside Devel, Judges Willett and Oldham disagreed about what happens when a district court  erroneously uses FRCP 41(a)(2) to dismiss only some claims, rather than an entire action as the rule’s text requires. —deprives the appellate court of jurisdiction. (A third judge concurred only in the judgment reached by Judge Willett.)

Judge Willett acknowledged that “Rule 41(a) did not authorize the district court to dismiss only KFA’s remaining claims,” but held that the error did not strip the court of appellate jurisdiction. He distinguished between Rule 41(a)(1) dismissals, which are “immediately self-effectuating” by the plaintiff’s own act, and Rule 41(a)(2) dismissals, which occur by court order. Because a Rule 41(a)(2) dismissal depends on the court’s order—not on whether the rule’s requirements are met—an erroneous order is still an order, and “like any other erroneous dismissal,” it may be reversed on appeal but does not render the judgment a nullity.

In dissent, Judge Oldham argued that the court lacked jurisdiction entirely. He emphasized that Rule 41 permits dismissal of “an action”—defined as “the entire lawsuit, not just one part of it”—and that using it to dismiss individual claims is flatly unauthorized. Citing the Court’s en banc decision in Williams v. Taylor Seidenbach, he argued that “an invalid Rule 41(a) dismissal is a nullity,” meaning the claims purportedly dismissed “are still ‘pending in district court'” and no final, appealable judgment exists. He rejected the majority’s distinction between subsections (a)(1) and (a)(2), noting that district courts routinely make errors—such as improperly refusing to certify a decision under 28 U.S.C. § 1292(b)—that cannot be corrected on appeal simply because they are wrong, and “those errors did not give appellate jurisdiction.” No. 23-50750, Aug. 21, 2026.

Quadvest, L.P. v. San Jacinto River Authority arose after the Montgomery County conservation district mandated a 30% cut in groundwater use, leading to changes in water production. Smaller water utilities that were negatively affected by the law sued the River Authority that implemented the law,  alleging that the resulting water-production contract violated the Sherman Act.

Among other holdings the Fifth Circuit concluded that the contract at issue was vertical, and not horizontal, for two reasons.

First, even if the parties competed in the wholesale water market generally, the specific transaction at issue was vertical. Here, the River Authority was “acting as a supplier of an input into the production of” the plaintiff’s water services—namely, regulatory compliance services.

Second, and “more fundamentally,” the parties were not competitors at the time the agreement was made. The plaintiff had not yet entered the wholesale water market when it signed the contract, and the record showed the two parties had never competed for the same customers, even after the plaintiff later entered that market. The Court rejected the argument that potential competitor status was sufficient, and distinguished cases cited by the plaintiff by noting that it  lacked the infrastructure and capital to compete, given that water transmission lines cost on average $7.2 million per mile to construct. No. 25-20415 (5th Cir. Aug. 18, 2026).

A cert petition has been filed in Nathan v. Alamo Heights ISD, the Texas “Ten Commandments” case.

In Progressive Laboratories, Inc. v. Living Fuel, Inc., the Fifth Circuit affirmed the district court’s handling of a contract dispute over the purchase and delivery of nutritional supplements, rejecting the seller’s argument that a course of dealing between the parties transformed a series of transactions into a single “installment contract” under Texas Business and Commerce Code section 2.612(a).

The Court held that “the various agreements between the parties were separate transactions, that the mere ‘expectation of future dealings does not creat[e]’” an installment contract, and that where the contractual language is clear, course of dealing need not be considered. No. 25-10232 (July 2, 2026).

Salt and Light Energy Equipment, L.L.C. v. Origin Bancorp, Incorporated asked whether Texas’s fair notice rules for indemnity clauses — the express negligence doctrine and the conspicuousness requirement — reach a bank’s ordinary fee-shifting provision. The Fifth Circuit affirmed the summary judgment and attorney’s fee award for Origin Bank, holding that “the fair notice requirements do not apply because SNLEE did not bring a negligence claim” against the bank.

SNLEE argued that its claims under the Texas Business and Commerce Code’s good faith and ordinary care provisions were negligence-based and should have triggered fair notice. The court disagreed, noting Section 1.304 imposes a duty of good faith, not ordinary care, and that Origin sought fees only for defeating SNLEE’s good-faith and business-disparagement claims rather than for its own wrongdoing — making the arrangement, in the court’s words, “a contractual fee shifting agreement” that SNLEE did not show was unenforceable. No. 25-11272 (July 20, 2026)

Fornesa v. Enterprise Financial Group, Incorporated affirmed dismissal of a second amended complaint after the plaintiffs, in adding a new defendant alleged to be a Missouri resident, destroyed the complete diversity that had existed between themselves and the original Texas-based EFG defendants. The Court further held the district court did not abuse its discretion, on the facts of this case, in denying leave to add Federal Trade Commission Act and Magnuson-Moss Warranty Act claims. No. 25-20171 (Aug. 14, 2026).

In Adler v. Energy Debt Holdings, the Fifth Circuit affirmed dismissal of a bankruptcy debtor’s suit to invalidate a competing lienholder’s note, holding his claim was barred by the terms of a cash-collateral order.

Judge Willett’s concurrence questioned the basis for the  bankruptcy court’s  decision – judicial estoppel – arguing that the doctrine “was unknown at the Founding, surfaced in state law decades later, and then spread rapidly through the federal courts without any settled account of its source or limits.” He examined the three possible sources of the doctrine—equity, inherent power, and common law—and concluded that none supports judicial estoppel as it is currently applied across unrelated proceedings, without reliance, and sometimes to extinguish entire claims.

Judge Willett emphasized that the doctrine’s appeal—preventing litigants from playing “fast and loose” with the courts—does not itself confer judicial power, and that existing legal tools such as perjury statutes, contempt, sanctions, equitable estoppel, and preclusion already address the same misconduct with identifiable sources and defined limits. No. 25-20475, Aug. 6, 2026. (Enthusiasts of judicial estoppel my enjoy my 1999 article suggesting that it be treated as a way to enforce certain judicial admissions across separately filed lawsuits.)

In Finite Utility Consulting, L.L.C. v. Tawa Supermarket, Inc., the Fifth Circuit affirmed summary judgment against a supermarket chain’s misrepresentation claims against its former energy broker, noting:

• No justifiable reliance. “Tawa first relies on the alleged promise of a fixed all-in price. But the LOA and accompanying emails expressly described the all-in figure as an estimate and disclaimed a guaranteed supplier rate. An estimate of future
  charges is not the definite promise that promissory estoppel requires.”
• No actual reliance. “Tawa next invokes Finite’s promise to conduct a ‘full Commercial and Legal review’ of the supply agreement. Even assuming a sufficiently definite promise and deficient review, Tawa identifies no detrimental change in position attributable to it. The only comparative evidence shows that the resulting arrangement reduced Tawa’s energy costs. And Finite’s later statement about ‘appropriate reimbursement’ came after Tawa signed the supply agreement; Tawa identifies no new action it took in reliance on that statement.”

No. 25-20396 (5th Cir. Aug. 4, 2026).

In MAPP, L.L.C. v. Floor and Decor Outlets of America, Inc., the Fifth Circuit affirmed denial of a national retailer’s motion to compel arbitration against its former contractor. The panel majority noted:

1. The clause gave the retailer sole discretion to elect arbitration: “Any disputed Claims that cannot be decided by confidential negotiation or mediation may, in the sole discretion of Owner, be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then in effect.”
2. Fee awards were one-sided, given that the retailer had sole discretion to enforce the clause: “… each party shall be entitled to any attorneys’ fees incurred by such party for any motions practice required to enforce this provision by litigation, including any motions to compel arbitration, which shall be awarded by the arbitrator in the form of an interim award upon application for fees by the party enforcing this provision.
3. The contract was negotiated by a local contractor seeking a national retail chain’s business.

A concurrence would have reached the same conclusion, but because of a failure to follow the specified contractual procedure. No. 25-30536 (Aug. 6, 2026).

Candel & Partners SAS v. ExxonMobil Corporation tested how far a Section 1782 subpoena can reach when the target lacks a meaningful connection to the foreign case. Candel wanted U.S. discovery for a French proceeding against a former ExxonMobil subsidiary, but the district court quashed the subpoena, and the Fifth Circuit affirmed.

The Court accepted the district court’s assessment of the Intel factors, under which that court (a) found the French tribunal capable of ordering its own discovery, (b) concluded that Candel was trying to evade “foreign proof-gathering restrictions,” and (c) found the request too broad. No. 25-20366 (July 23, 2026).

In In re Prime Insurance Co., the Fifth Circuit granted mandamus relief to an insurer ordered to produce privileged claims-file materials, holding that, “[b]ecause the district court treated relevance as sufficient to overcome the asserted privilege, it applied an incorrect legal standard.” While the Court vacated the production orders for the time being, it recognized that the plaintiff could pursue other privilege-waiver theories on remand. No. 26-30410 (Aug. 5, 2026).

This is a cross-post from 600Commerce

In re Jackson holds that attorney immunity protects an in-house corporate attorney from a tortious interference claim brought by a terminated CEO. The former CEO had amended his petition to remove references to Jackson as “general counsel” and recast him as a “business advisor,” but the Fifteenth Court found this recharacterization did not defeat the defense: “[N]o matter how Jackson’s conduct is characterized, for immunity purposes the question is whether rendering advice to a client in these circumstances is ‘the kind of conduct‘ attorneys engage in when discharging their professional duties to a client.” (emphasis added).

The Court clarified that the test for attorney immunity does not ask what actual advice an attorney gave (since that is privileged) but instead examines hwether the challenged conduct is “the kind of conduct” that attorneys undertake while discharging professional duties to a client. Here, when a multi-billion-dollar company considers firing a CEO who may raise a $350 million claim, seeking legal advice is expected, and rendering that advice is precisely the kind of conduct corporate attorneys and general counsel perform.

The Court rejected the argument that allegations of Jackson’s involvement in business operations—such as attending strategy meetings and meeting with employees on technology matters—showed his interference was non-legal, noting that none of those activities related to the actual conduct sued upon: advising on the CEO’s termination. The Court further held that an attorney’s self-interest does not cancel the immunity defense so long as that interest coincides with the client’s interests, because the inquiry “focuses on the function and role the lawyer was performing, not the alleged wrongfulness, or even asserted criminality, of the lawyer’s conduct.”

A dissent argued that the live pleadings—which must be taken as true under Rule 91a—portrayed Jacksonas a business advisor pursuing his own self-interest in obtaining the CEO position for himself. The dissent stressed that attorneys often wear many hats in the corporate world and that not every action by someone with a law license qualifies for immunity; rather, the conduct must be particular to “the office, professional training, skill, and authority of an attorney.” No. 15-25-00235-CV, Jul. 14, 2026. (Of general interest, a 2014 Fifth Circuit case addressed similar issues in the context of privilege.)

The Great Gatsby concludes with the famous line: “So we beat on, boats against the current, borne back ceaselessly into the past.” So too, the opinion in rehearing in In re Google, L.L.C., which substitute a new opinion for its earlier panel opinion granting mandamus relief – becoming unpublished and with two of the three panel members. adopting their propert writings.No. 25-40788 (July 2, 2026).

I carry the ball about the recent SCOTUS term and the Fifth Circuit in Bloomberg in Bloomberg this week.

In Alta Power v. General Electric, the Fifth Circuit held that a mutual contractual waiver of consequential damages was enforceable and barred the plaintiff’s tort claims, even though the party invoking it was a non-signatory subcontractor accused of fraud and intentional wrongdoing.

The waiver said that neither party, nor their “contractors[,] or subcontractors,” would be liable for “any incidental, indirect[,] or consequential damages arising out of or connected in any way to” the agreement. Applying Texas law, the court concluded that the subcontractor was an intended third-party beneficiary entitled to enforce the waiver, reasoning that the contracting parties “bargained only for a scope limitation”—that disputes have a connection to the contract—rather than a restriction as to capacity or timing about who was a subcontractor.

The Court also rejected the argument that alleged fraudulent inducement made the waiver unenforceable, noting Texas authority holding that sophisticated parties can bargain to limit fraud damages without waiving a fraud claim altogether. Finally, the Court held that the waiver included intentional torts, in that the provision’s references to “any cause of action,” and its illustrative list of claims, signaled an intent for the clause to have broad coverage. No. 25-10774; Jul. 1, 2026.

In Watson v. RNC, the Supreme Court reversed a Fifth Circuit statutory-interpretation opinion. The issue was whether federal “election day” laws require absentee ballots to be received by election day, or only cast by then.

The Fifth Circuit gave substantial weight to historical election practice, reasoning that, when Congress adopted the federal election-day statutes, an “election” generally involved both the voter’s act and the official receipt of the ballot on the same day.

The Supreme Court took a more text-centered path. It focused on the ordinary meaning of “election” as the electorate’s choice, and held that this choice is made when voting is complete—not when a ballot physically arrives. The Court also found support in another federal statute’s use of state ballot-receipt deadlines, while treating the historical record as too uncertain to add a receipt deadline that Congress did not expressly write. No. 24-1260 (U.S. June 29, 2026).

In Trailer Bridge, Inc. v. Louisiana International Marine, L.L.C., the Fifth Circuit affirmed a maritime-lien judgment in favor of a tugboat owner for unpaid towing invoices, but also affirmed the district court’s refusal to award attorney’s fees to the prevailing claimant. The court explained that under traditional admiralty principles a maritime lien creates an in rem right against the vessel without, on its own, generating a separate basis of in personam liability against the vessel’s owner. Absent that separate substantive basis, the in personam defendant “is generally not liable to the plaintiff merely because a maritime lien has come into existence.” No. 25-30331 (June 17, 2026).

In Williams v. Rent 2 Own Trailers, LLC, the Fifth Circuit held that the defendants in a lease dispute waived any protection by a provision requiring that any controversy “shall be settled first by good faith mediation” within 30 days after notice of the dispute.

The Court credited the complaint’s allegation that the plaintiff gave notice on June 15, 2023, and emphasized that the defendants neither sought mediation during the ensuing 30 days nor pursued it afterward. Instead, they waited until after suit was filed and invoked the clause as a barrier to litigation rather than as a genuine settlement mechanism. The Court also noted the defendants’ later litigation conduct, including their failure to request mediation after acknowledging in a case management plan that court or magistrate mediation could be an effective dispute-resolution technique. No. 25-20352, Jun. 18, 2026.

A running gag on Saturday Night Live in the 1970s featured Chevy Chase, hosting the “Weekend Update,” proclaiming: “Generalissimo Francisco Franco is still dead.“

In that spirit, today the Supreme Court proclaimed that the Rooker/Feldman doctrine remains unchanged after today’s release of opinions, proclaiming: “The Court today neither expands nor constrains Rooker/Feldman.” T.N. v. Univ. of Maryland Health System, No. 25-197 (June 18, 2026).

In Wightman v. Ameritas Life Insurance Corp., the Fifth Circuit reversed and remanded fr a second time in a dental-network reimbursement dispute, holding that the district court – on remand from a prior Fifth Circuit reversal – had improperly refused to consider certain theories by concluding that those theories had been forfeited in the earlier appeal.

The Court court explained: “this court, not the district court, has the authority to determine whether to consider issues that may have been forfeited on appeal,” and that the district court’s refusal “violated the mandate rule, which requires a district court on remand to effect our mandate and to do nothing else.” No. 24-30775 (June 12, 2026).

Yet again, my friend Art Ayala has good insights about supersedeas bonds, in this recent article, “Six Common Misconceptions About Appeal Bonds.”

Regrettably, I did not get a picture from my presentation last week at the University of Texas Appellate Conference (organized by UT Law CLE), but this is pretty close, and here are copies of my PowerPoint and paper from the conference.

In Providence Title Co. v. Truly Title, Inc., the Fifth Circuit affirmed summary judgment between two Texas insurance competitors, where one company’s new hires from their rival title company brought their clients and colleagues with them, resulting in alleged breaches of their fiduciary duties.

The case arose from a failed merger. After negotiations between Providence and Truly stalled, several Providence executives — including its president — negotiated their way to Truly, coordinated strategic office openings with data gained during merger dealings, and had a former Providence employee organized a “happy hour” that doubled as a group interview with Truly recruiters.

Providence sued Truly for knowingly participating in its executives’ breach of fiduciary duty. The Fifth Circuit affirmed dismissal of all of them. The Court followed the Texas intermediate-court opinion in Crossroads Hospice v. FC Compassus, which held that hiring at-will employees who secretly agreed to compete with their employer, and knowing about their disloyalty, does not constitute knowing participation. In each instance, Providence’s evidence tracked Crossroads closely: the executives acted largely on their own initiative, Truly required new hires to certify they wouldn’t use Providence’s data, and the happy hour took place the evening of the managing employee’s resignation, after her fiduciary duties had ended. No. 25-40194 (May 15, 2026)

In Students Engaged in Advancing Texas v. Paxton, the Fifth Circuit stayed a district court’s preliminary injunction against the Texas App Store Accountability Act, holding that the State made a strong showing that the law regulates, at most, commercial speech subject to intermediate scrutiny rather than the strict scrutiny the district court applied.

The Court found that app store listings “propose commercial transactions” because users browse a catalog of apps and download or buy them, and even apps that are “free” extract value through “access to user data and private information”. Because this is commercial speech, the State need only show a “reasonable fit” between the law and its goals, not the least restrictive means. The Court also noted the law “may not regulate speech at all, given that it does not target any substantive content but instead regulates commercial conduct with an incidental relationship to speech” No. 25-51073, Jun. 4, 2026.

In EnvTech, Inc. v. DeBusk, the Fifth Circuit reversed dismissal of a civil RICO claim built on trade secret theft as the predicate act.

The plaintiff alleged that the defendant, a CEO, directed a pattern of hiring competitors’ key employees and stealing their proprietary knowledge. The Fifth Circuit held that the plaintiff plausibly alleged both the predicate offenses and the pattern requirement—relatedness and open-ended continuity—by showing a consistent modus operandi: the defendant personally hired competitors’ employees and directed them to use stolen trade secrets for his company’s gain, triggering multiple lawsuits from 2020 onward.

On continuity, the court found the alleged scheme posed a threat of future repetition. The defendant had declined to discipline employees whose theft led to litigation, continued to push the use of stolen methods even after a lawsuit was filed, and testified that he “never thought about trade secrets” despite running a company that deals in proprietary cleaning technologies—a statement the court treated as a possible false exculpatory that made the modus operandi allegations more plausible. No. 25-40237 (Jun. 9, 2026).

In Blue Compass RV, L.L.C. v. Twin City Fire Insurance Co., the Fifth Circuit affirmed the dismissal of a $1.25 million crime-insurance suit,

After receiving a phishing email purporting to be from its construction contractor, an RV dealer updated the contractor’s payment information and remitted a progress payment to the fraudster’s account. The dealer’s insurance arrier paid the smaller sub-limit  for deception fraud involving the “purchase of goods or services,” rather than a larger limit. The dispute turned on whether the contractor’s construction work was a sale of “services” within that sub-limit.

The court rejected the insured’s argument that “services” should be read narrowly to mean only “useful labor that does not produce a tangible commodity.” Although some dictionary definitions support that reading, the Court concluded that in the context of the policy as a whole, a broader ordinary meaning controlled. Under that meaning, the contractor’s construction work qualified as services even though its end product was a tangible building. No. 25-10894 (June 5, 2026).

Somewhat belatedly, I’m proud to announce that the Bar Association of the Fifth Federal Circuit has released Volume I Issue 2 of “Following the Fifth,” its new flagship publication the work of the Fifth Circuit. Join BAFFC and have this – and many other resources – delivered straight to your inbox!

The baffling interplay between the administrative state and the Seventh Amendment gained another wrinkle today in FCC v. AT&T, which reversed a Fifth Circuit judgment and explained:

Even if the Commission’s orders do not require payment, [the telecommunication carriers] contend, the Seventh Amendment nonetheless applies because forfeiture orders have legal effect—namely, they enable the Department of Justice to initiate a § 504 suit. But the Seventh Amendment “secure[s] a right to the individual,” that attaches when “legal rights” are to be “determined,” A forfeiture order under 47 U.S.C. § 503(b)(4) does not determine legal rights; it is simply a “prerequisite[ ] to suit” that must be met before the Department may bring a collection action. It is thus analogous to a right-to-sue letter, or an exhaustion requirement–statutory conditions precedent that enable a subsequent suit. The Seventh Amendment does not extend to such “preliminary” procedures.

Nos. 25–406 and 25–567 (June 4, 2026) (citations omitted).

The plaintiff in Gemstone Foods, L.L.C. v. JPMorgan Chase Bank, N.A, was a Mississippi food processor with no banking relationship with Chase. Nevertheless, it alleged that Chase failed to adequately vet certain account-holder and thus facilitate the misdirection of $187,000 in wire transfers into sham accounts. The Fifth Circuit held that Chase owed no duty of care to a non-customer under Mississippi law. The court was not persuaded that the “sham account” issue created enough of a factual difference from earlier precedent to allow departure from it under the rule of orderliness, or to require certification to the Mississippi Supreme Court. No. 26-60049 (May 29, 2026).

In Simmons v. Brotherhood Mutual Insurance Co., the Fifth Circuit confronted an ambiguous district-court order resolving competing motions for partial summary judgment in an insurance-coverage dispute. Rather than dismissing the appeal for want of final judgment, the court ordered a remand “for the limited purpose of permitting the district court to issue final judgment” within fourteen days while retaining jurisdiction over the appeal. That procedure allows the district court to enter a final judgment to support § 1291 jurisdiction without requiring a new notice of appeal or additional appellate briefing. No. 25-30463 (May 15, 2026).

Here is my paper from my “Fifth and Fifth” presentation today at the DBA Appellate Section meeting at the Arts District Mansion.

Come to the Arts District Mansion this coming Thursday, the 21st, for my yearly “Fifth and Fifth” case-law update!

In Fleming v. Black Diamond Capital Management, L.L.C., the Fifth Circuit affirmed a  judgment that a private equity sponsor was not liable under the Worker Adjustment and Retraining Notification (WARN) Act for a portfolio company’s mass layoff, because plaintiffs failed to prove the sponsor “specifically directed” the plant closing that triggered the layoffs.

The panel acknowledged circumstantial evidence that the sponsor exercised pervasive influence over its portfolio company’s operations, but cautioned that proof of general control was not the same as proof of specific direction of the challenged decision. A dissent argued that the majority’s narrow framing of de facto control will make it nearly impossible for plaintiffs to prevail absent an admission of fault by the parent. No. 24-30291 (May 11, 2026)

In Conyers v. Kellogg Brown & Root, Inc., the Fifth Circuit addressed whether a qui tam relator may recover attorneys’ fees under the False Claims Act when the Government intervenes, drops the relator’s original claims, and the relator receives no share of the settlement proceeds.

Applying the “rule of the last antecedent” to 31 U.S.C. § 3730(d)(1), the court affirmed the denial of the relator’s fee motion, holding that the statute’s reference, to “such person” who “shall also receive” reasonable expenses and attorney fees, refers to the person who received payment from the proceeds. The court thus condluded that “a relator may only recover attorney fees and costs if he received a relator’s share of the proceeds of the action or settlement.” This decision aligns the Fifth with similar holdings in the Sixth and First Circuits on this point. No. 25-20194 (May 7, 2026)

In Trojan Battery Co. LLC v. Golf Carts of Cypress, LLC, the Fifth Circuit affirmed the district court’s finding of a likelihood of confusion between the plaintiff’s TROJAN® marks for golf-cart batteries and the defendant’s TROJAN-EV mark for golf carts. The court applied the eight “digits of confusion” as follows:

1. Strength of the mark. The court held that the TROJAN® marks are strong due to “decades of use, marketing to a broad range of golf industry consumers, hundreds of millions in sales, a large market share, and the well-known reputation of the TROJAN® brand in the golf cart market.” The court rejected the argument that third-party uses—such as Trojan condoms and the USC mascot—weakened the mark, finding no evidence that those uses diminished the public’s association of TROJAN® with Trojan Battery within the golf-product marke
2. Similarity of the marks. The court found the marks highly similar because they share the dominant word “TROJAN,” and even though the logos differ, the marks are used in a way in which “a reasonable person could believe the two products have a common origin or association.”
3. Similarity of the products. The court held that golf-cart batteries and golf carts are “highly related” complementary products often used and sold together, and that consumers could believe the senior user would naturally expand into the golf-cart market.
4. Identity of retail outlets and purchasers. Conceded by the defendants, as both parties sell primarily through the same golf-cart retail stores to the same customers.
5. Identity of advertising media. Also conceded by the defendants, as both parties use the same advertising channels.
6. Intent. he court affirmed the district court’s finding that the defendant’s principal intended to trade on the plaintiff’s goodwill, crediting evidence that he sold golf carts equipped with TROJAN® batteries and negotiated purchases of TROJAN® batteries before founding Trojan EV, and finding his testimony that he was unaware of the TROJAN® brand “not being truthful”–a finding due considerable deference under the standard of review.
7. Actual confusion. The court found clear error—holding that five instances of confusion over roughly two and a half years of concurrent sales running into the millions of dollars were “insufficient to sustain a finding of likelihood of confusion,” applying the Amstar
8. Degree of care. The court found no clear error, noting that even sophisticated purchasers such as an experienced golf-cart dealer initially believed Trojan EV was affiliated with Trojan Battery, and that “a high price tag alone does not negate other indicia of likelihood of confusion, especially if the goods or marks are similar.”

No. 25-20243 (5th Cir. May 8, 2026).

In Hill v. Jackson Offshore, the Fifth Circuit vacated a district court order that denied a motion to compel arbitration and allowed discovery into an arbitration agreement’s enforceability.

The case involved a seaman who signed a wage and benefits agreement containing both an arbitration clause and a delegation clause, which said that “any dispute relating to the validity, interpretation, or application of this Agreement shall be submitted to the arbitrator for resolution.”

Applying Rent–A–Center, the Court reminded that a party resisting arbitration must make arguments “specific to the delegation provision,” and not argue generally that “the contract as a whole (including its arbitration provision) is rendered invalid.” Although the seaman’s briefing stated that he challenged “both the entire Agreement, as well as the arbitration language or ‘clause’ specifically,” the Court found these efforts insufficient because the seaman never explained how fraud or duress applied to the delegation clause differently than to the rest of the agreement.
No. 24-30554, May 5, 2026.

The Fifth Circuit recently voted to rehear en banc the panel opinion in Aramark Services v. Aetna, which involves a question about ERISA remedies and whether Circuit precedent comports with Supreme Court opinions in the area. The panel concurrence that prompted en banc review makes an intriguing observation about dicta and its precedential value:

Montanile does not distinguish Amara factually based on the identity of the Amara defendant as a fiduciary. Moreover, rarely has the Supreme Court so thoroughly distanced itself from “dicta” in a previous case. To have purported to “overrule” this point in Amara, after all, would not have comported with Amara itself, which recognized its statements as dicta and mere ruminations. A court cannot “overrule” its own dicta, which were never precedential to begin with.

(emphasis added).

In United States v. Texas, the en banc Fifth Circuit vacated a preliminary injunction against Texas Senate Bill 4 (a state law criminalizing illegal entry and reentry into Texas) because the plaintiffs lacked standing.

The majority opinion held that none of the plaintiffs—two nonprofit legal-services organizations and a Texas county—had suffered a cognizable injury. The majority emphasized that S.B. 4 is enforceable only against noncitizens who are illegally present in Texas, not against advocacy organizations or local governments, and that because the plaintiffs challenge “an alleged ‘unlawful regulation of someone else,’ standing is ‘substantially more difficult’ to establish.”

Relying heavily on the Supreme Court’s 2024 decision in FDA v. Alliance for Hippocratic Medicine, the majority reasoned that an organization cannot “spend its way into standing” or “manufacture its own standing” by voluntarily incurring costs to counteract a policy it opposes. The majority acknowledged that the Supreme Court’s decision in Havens Realty Corp. v. Coleman recognized organizational standing in a specific factual context—where a housing counseling organization was directly harmed by a defendant’s false representations—but concluded that the plaintiffs’ circumstances bore no meaningful resemblance to those facts.

A dissent argued that the nonprofit plaintiffs were more than advocacy organizations, serving as providers of legal counseling and referral services to immigrants. S.B. 4 would “perceptibly impair” their ability to deliver those core services by forcing them to navigate an entirely new state criminal immigration system on top of the existing federal one. The dissent saw the “critical” fact in Havens Realty as the organization’s operation of a counseling service that was directly affected by the defendant’s actions. No. 24-50149, Apr. 24, 2026.

In United States v. Rahimi, the Supreme Court reversed the Fifth Circuit’s invalidation of a firearms-possession law, cautioning against a view of history that “trapped in amber” the world of the 1790s.

Nathan v. Alamo Heights ISD, a 9-7 opinion from the en banc Fifth Circuit, holds that a Texas law requiring the display of the Ten Commandments is constitutional, based on a history-focused test that considers state establishment of an official religion as the purpose of the First Amendment’s Establishment Clause. No. 25-50695 (April 21, 2026).

The questions whether (1) the Supreme Court’s Stone case from 1980, which is directly contrary to Nathan, continues to have precedential effect, and (2) whether the courts become “trapped in amber” by focusing on history to resolve a question about public schools, when nothing resembling modern public schools existed in the 1790s, seem likely to attract Supreme Court review. (Comments on a morning TV interview can be seen here.)

Cuevas Machine Co.v. Calgon Carbon Corp. certified a question about Mississippi construction-lien law to that state’s supreme court.

The issue was whether a lienor can satisfy the statutory requirement to “specify the date the claim was due”–defined as “the last date the labor, services or materials were supplied to the premises” under a Mississippi statute–by attaching invoices to the lien that do not plainly state such a date. The current version of the lien statute resulted from a major 2014 legislative overhaul, leaving little judicial guidance on how strictly its requirements should be read.

The court evaluated the three certification factors as follows. First, the question is narrow yet important, and the limited existing precedent largely predates the 2014 amendments. Second, the answer carries significant economic weight, including the seven-figure lien at stake, and will be dispositive of the case. Third, allowing the Mississippi Supreme Court to construe its own statute “will allow us to conclude this case in a manner that is not at risk of inconsistency with any later determination by that court.” No. 25-60198, Apr. 15, 2026.

While the appellant was unsuccessful in Pete v. Equifax, Inc., he seems to have set a record for an imaginative demand: “Appellant David Pete, proceeding pro se, sued Appellees Equifax and JND Legal for $200,000,000,000 under a variety of legal theories. The district court denied Pete’s in forma pauperis motion and ordered Pete to pay the filing fee because he falsely claimed the United States Attorney General owed him more than $100 quintillion.(emphasis added).

If you are a fan of the Moonshiners TV show, then McNutt v. U.S. Dep’t of Justice is for you. The Fifth Circuit summarized: “For more than 150 years, Congress has prohibited home distilleries as an adjunct to the law establishing a federal excise tax on distilled spirits. …  [W]hile venerable, the statute violates the Constitution’s Taxation and Necessary and Proper clauses.”

Specifically, the Court held that prohibiting individuals from distilling spirits at home is not “plainly adapted” to Congress’s enumerated power to tax distilled spirits. The statutes do not facilitate tax collection—rather, they prevent the creation of taxable products altogether. Citing McCullogh v. Maryland, the Court emphasized that “the Necessary and Proper Clause cannot expand the reach of the taxing power to criminalize conduct that could produce taxable revenue under the pretext that generating revenue for the federal government will be enhanced.”

The Court also held that the law is not “proper” because it effectively exercises a general police power reserved to the states, rather than legitimately carrying into execution the federal taxation power. In sum, the Court was that the government’s theory lacked a meaningful limiting principle, allowing Congress to ban virtually any home-based conduct on the mere possibility that it might conceal taxable activity. No. 24-10760; Apr. 10, 2026

The Fifth Circuit granted mandamus relief to send a case against Google from East Texas to California in In re Google. The district court focused on evidence that its median time to disposition and trial was faster than the proposed transferee court.

The Fifth Circuit found two flaws in this analysis. First, the Court emphasized that court congestion is the “most speculative” of the Volkswagen factors, and that median litigation timelines are “particularly unreliable” in complex cases, which tend to exceed a court’s average time-to-trial due to greater discovery and briefing demands.

Second, whatever weight the factor may deserve, the district court impermissibly allowed it to override every other factor in the analysis—a result that violated the Fifth Circuit’s longstanding rule that “no factor” in the venue transfer test may be “accorded dispositive weight.”

Because the district court found that all other factors either tipped in favor of transfer or were neutral, the court congestion factor “singlehandedly defeated transfer, in violation of [Fifth Circuit] precedent.” The court was unpersuaded by the argument that this reasoning should apply only when transfer is granted, stating plainly: “What is good for a grant must be good for a denial.” No. 25-40788 (5th Cir. Apr. 7, 2026).

A business avoided liability under the TCPA (the federal anti-robocall statute, not the Texas anti-SLAPP law) for unwanted calls when the plaintiff had given consent to the communications at issue:

Bradford … gave prior express consent. He provided his cell-phone number when he entered into the service-plan agreement with Sovereign Pest. Bradford has expressly stated that he gave Sovereign Pest his phone number so that the company could get in touch with him. He confirmed that Sovereign Pest could call him on his  cell phone during later conversations with the company. … We also note that the service-plan agreement provided that Sovereign Pest and Bradford could “extend the agreement annually” for another year if both parties consented. The inspections to which Sovereign Pest’s renewal-inspection calls led facilitated Sovereign Pest’s decision to renew the agreement. Despite Bradford’s protestations about the renewal-inspection calls now, he chose to renew the service-plan agreement four times. 

No. 24-20379 (Feb. 25, 2026).

A frequently reversed issue in commercial cases before the Fifth Circuit is contract ambiguity. The newest example is Porch.com v. Gallagher Re, where a contract term required an insurance broker to provide “Administrative Services,” defined to include “all servicing duties customarily performed by a reinsurance intermediary-broker after the placement of the reinsurance contract, including but not limited to . . . administering all reserve funding.”

The insured alleged that its reinsurance broker failed to recognize the difference between a mere collateral letter and a letter of credit—the specific instrument that the reinsurance contract called for—and then repeatedly misrepresented the collateral as valid.

The district court dismissed the claim, reasoning that the insured’s allegations related only to the initial placement of reinsurance. The Fifth Circuit disagreed, concluding that the contract term was, at a minimum, ambiguous as to the broker’s duties, explaining that “it is at least reasonable to interpret that provision as including [the broker’s] duties with respect to the letter of credit.”

The Court also emphasized that determination of what servicing duties are “customarily performed” by a reinsurance intermediary-broker is a fact question that cannot properly be resolved on a motion to dismiss. In so doing, the Court rejected the broker’s argument that the insured was seeking to transform purely ministerial tasks into broad duties to investigate the solvency of third parties. The Court found that the complaint simply alleged that the broker did not perform the routine administrative oversight contemplated by the contract’s broad language. No. 25-10489 (Apr. 2, 2026).

In Megatel Homes v. City of Mansfield, a developer needed water from a special utility district, that held the exclusive state-issued “certificate of convenience and necessity.” The district, however, had contractually agreed to not provide water within the city’s extraterritorial jurisdiction without the city’s prior written consent.

The developer sued under the Sherman Act. The city claimed state-action immunity. The Fifth Circuit agreed that the Texas Water Code expresses a clear state policy to displace competition with monopoly in the provision of water services, but held that the city was not the intended beneficiary of that policy. In other words, the Water Code’s authorization of monopolistic behavior runs to the holder of a certificate, which is the utility district and not the city. No. 25-11006 (5th Cir. Mar. 26, 2026)

In Archer Western Contractors LLC v. McDonnel Group, LLC, the Fifth Circuit applied its precedent in Moss v. Princip to hold that a partnership—and by extension a joint venture—is not necessarily indispensable when each of its partners is a party and “relief can be tailored to reduce prejudice to the absent partnership.” The court also noted that a Rule 17(a) real-party-in-interest argument does not bear on the Rule 19 joinder analysis, because “the fact that an absent person could bring the action as a real party in interest does not of itself make that person a necessary or indispensable party.” No. 25-30321 (Mar. 26, 2026).

In Arnesen v. Lutnick, the Fifth Circuit addressed whether members of the Gulf of Mexico Fishery Management Council are officers of the United States, who must be appointed pursuant to the Appointments Clause.

Applying the “significant authority” test from Lucia v. SEC, the Court held that only one power — the Council’s ability to veto certain actions by the Secretary of Commerce, including the repeal of fishery management plans — conferred significant authority on Council members. The Council’s other powers (authority to propose plans and amendments, to assemble the supporting record, and to request emergency regulations) did not rise to that level, because the Secretary kept ultimate review and control over them.

From there, the Court severed those provisions, and concluded that the Council’s residual powers made its members mere “advisors or employees and not subject to the Appointments Clause”. Severance was appropriate because (1) the statute can function independently without the veto power, and (2) Congress’s core purpose of informed, cooperative fishery management remains in place. And because the unconstitutional veto provisions were not exercised in developing the fishery-management amendment at issue, the Court held that the implementing regulation “need not be vacated either.” No. 24-60055 (Mar. 27, 2026).

After the panel majority’s decision in Ford v. McKesson, a long-running case is headed for trial. Officer John Ford sued DeRay Mckesson, alleging that he was injured during a protest led by McKesson.

The majority held that summary judgment was improper because a jury could reasonably find for Ford on each part of his Louisiana negligence claim. In the court’s view, the record contains enough evidence for a jury to decide whether Mckesson helped organize and lead the Baton Rouge protest, whether he did so in a way that foreseeably created a violent confrontation with police, and whether that conduct was a but-for cause of Ford’s injuries. The court also rejected the argument that the First Amendment bars the case from reaching trial.

A dissented argued that the plaintiff’s proof, whatever may have been enough at the pleading stage, is too thin at summary judgment. In her view, the majority stacks inference upon inference about Mckesson’s role, causation, and the identity of the rock-thrower. She also warned that allowing the case to proceed risks chilling protest activity by turning disorderly reactions of others (a “heckler’s veto”) into a basis for speaker liability. No. 24-30494 (March 19, 2026).

Based on the Supreme Court’s recent Jarkesy opinion about jury-trial rights and administrative tribunals, the Fifth Circuit required a deceptive-advertising claim to proceed before a jury in Intuit v. FTC:

Caselaw from soon after the passage of the FTC Act reflects a widespread understanding that the statute encompassed common law actions for “deceit,” “fraud,” and “unfair use.” Deceptive advertising claims enforceable by the FTC arose from these traditional concepts. As former FTC Chair Timothy Muris put it, the Commission “help[s] to reinforce the common law rules of exchange” when it acts under its authority to “stop unfair or deceptive acts or practices.” Precedent, particularly the Jarkesy decision, confirms that FTC’s adjudication of deceptive advertising claims does not involve public rights, and the agency must therefore redress deceptive advertising in Article III courts. 

No. 24-60040-CV, March 20, 2026 (citation omitted) (Editor’s Note: as for the above picture of a 1790s-era jury, I tried, but ChatGPT can only conjure up so much diversity when it comes to hats and Colonial neckwear.)

My old friend Walter Woodruff reminded me of this amazingly witty opening line by the late Judge Jolly in a 2011 criminal case:

A gracious man with a powerful commitment to the rule of law, Hon. Grady Jolly passed away on March 16. As summarized well by Senator Wicker from Mississippi:

In Cambric v. City of Corpus Christi, the Fifth Circuit affirmed the dismissal of a § 1983 claim against a municipality for failure to adequately plead municipal liability under Monell. The plaintiff alleged that the city engaged in selective enforcement of its building code in violation of the Equal Protection Clause and sought to hold the city liable based on a “pattern, practice, and custom” of selective enforcement.

The Court held that the plaintiff’s allegations were insufficient to establish an actionable custom for municipal liability purposes. Although the plaintiff cited one instance of allegedly unequal treatment—the city’s support for a different historical restoration project—the court found this comparison inadequate to demonstrate a pattern of constitutional violations.

A concurrence clarified that the court’s recent decision in Hershey v. City of Bossier City, which allowed a single-incident Monell claim to survive dismissal on a failure-to-train theory, should not extend to claims alleging that policymakers selectively enforced a statute or ordinance. No. 25-40126, Mar. 13, 2026

In In re Alliance Liftboats, LLC, the Fifth Circuit denied a petition for a writ of mandamus seeking review of a district court’s collective-action certification order in a Fair Labor Standards Act case. The petitioner argued that mandamus was its only available path to relief, because collective action is otherwise non-appealable, and that improper certification would cause irreparable harm.

As to the substantive ruling, the Court held that an employer can preserve its challenge and raise the issue on ordinary appeal from final judgment. As for the claimed harm from litigating as a collective action, the Court said that to obtain mandamus relief, “[t]here has to be a greater burden, some obstacle to relief beyond litigation costs that renders obtaining relief not just expensive but effectively unobtainable.” No. 26-30091, Mar. 11, 2026; cf. In re JP Morgan Chase, 916 F.3d 494 (5th Cir. 2019) (denying mandamus relief but staying the district court’s order about individual notice for thirty days to allow reconsideration).

Savage v. La Salle Mgmnt. Co. illustrates when a “series of unfortunate events” warranted dismissal of a case for not making reasonable efforts to move the litigation along. While one should not feel comfortable missing fewer deadlines than occurred here, one should feel very uncomfortable about missing more:

1. October 2022 – Initial Discovery Requests: Plainitff’s counsel in an employment case failed to respond to Defendants’ interrogatories and requests for production for approximately five months.
2. March 2023 – Motion to Compel: Counsel did not oppose Defendants’ motion to compel because he was “unaware” of it.
3. Order Granting Motion to Compel: Counsel failed to comply with the magistrate judge’s order directing discovery responses and payment of $300 in attorney’s fees.
4. Denial of First Motion to Dismiss: Despite the district court vacating the schedule, delaying trial, and assessing an additional $600 in fees, Counsel still did not prioritize the case.
5. Eight-Week Discovery Extension: Even after the magistrate judge granted additional time to complete discovery, no case development occurred.
6. Third Continuance with Explicit Warning: Counsel failed to produce discovery or schedule depositions despite the court’s warning that it would not continue trial again.
7. April 2024 Discovery Conference: Depositions discussed at the conference never happened.
8. Second Motion to Exclude: As the fourth trial date approached, discovery still had not progressed after four years of litigation.
9. Status Conference: Counsel “forgot” to attend the status conference on Defendants’ motion to exclude, despite evidence that he received the ordinary notice of it.

No. 25-30259 (March 9, 2026).

In Wilson v. Centene Mgmnt. LLC, the Fifth Circuit vacated an order denying class certification, concluding that plaintiffs had established Article III standing at the class-certification stage.

Specifically, the Court held that the named plaintiffs adequately established individual standing through allegations and evidence of injury-in-fact, causation, and redressability: they alleged overcharges for a health insurance policy with materially inaccurate provider directories, the overcharges were fairly traceable to the discrepancy between the promised and actual network, and they would be refunded if successful.

The Court further held that plaintiffs need not prove the precise dollar amount of damages at this stage, stating, “Although the Plaintiffs will ultimately have to prove whether and to what extent they were overcharged based on the inadequacy of the network, they do not need to prove how to measure that injury in dollars at the class-certification stage.”

This opinion differs from the Court’s now-withdrawn, July 2025 opinion, which had formally  adopted the “class-certification approach” to determining standing and held that once individual standing is established, the remaining analysis should occur under Rule 23. This revised opinion expressly declined to resolve a circuit split on this point, analyzing the plaintiffs’ claims under both recognized approaches, and concluding that no choice was necessary because plaintiffs had satisfied both. No. 24-50044, Feb. 19, 2026

This week, the Fifth Circuit’s website reports the following about Judge Dennis taking inactive senior status:

As of February 23, 2026, Judge James L. Dennis has taken inactive senior status. After serving in the United States Army, Judge Dennis graduated from Louisiana Tech University and Louisiana State University Law School. After graduating law school, he worked in private practice and served as a state representative in the Louisiana House of Representatives. He then became a state judge in Louisiana, serving on the Louisiana District Court, Fourth Judicial District; the Louisiana Court of Appeal, Second Judicial Circuit; and the Supreme Court of Louisiana. He has served honorably on this court for just over thirty years. We thank him for his long and distinguished service to this court and our country.

Two recent opinions – one from the Fifth Circuit, one from the Southern District of Texas – have addressed constituaional challenges to state education laws, and turned on issues of procedure.

In Roake v. Brumley, the Fifth Circuit, sitting en banc, vacated a preliminary injunction against Louisiana House Bill 71, which requires public schools to display the Ten Commandments in every classroom. The court did not rule on whether the law is constitutional; instead, it held that the challenge was not ripe for judicial decision because the statute confers discretion on local school boards regarding the nature of the displays, and the full context of how the law will be implemented remains unknown. Dissenting opinions would have addressed the merits.

And in GSA Network v. Morath – a district court opinion on an issue that is likely to reach the Fifth Circuit at some point – the court enjoined the Houston, Katy, and Plano Independent School Districts, barring them from enforcing several provisions of Senate Bill 12, a law regulating clubs, curriculum, and policies related to sexual orientation and gender identity in public schools. The court found that the three school districts, though actively implementing SB 12, explicitly declined to defend the law on the merits, filing only brief responses that took “no position” on its constitutionality, creating a waiver under party-presentation principles. And although the Commissioner of the Texas Education Agency did offer a defense, the court dismissed him from the case for lack of standing, finding that the plaintiffs’ injuries were traceable to the school districts themselves—not the Commissioner—because SB 12 vests implementation and enforcement authority in local school boards.

There have been two recent opinions about generative AI that you should know about

1. The Southern District of New York recently held that a client’s queries of ChatGPT about a lawsuit WERE NOT PRIVILEGED. My law partner Chris Schwegmann has an excellent analysis of that ruling and its practical implications in this recent Texas Lawbook article. I highly recommend it, Chris is way ahead of the curve in thinking about “what next?” after this important ruling.
2. The Fifth Circuit has had it with the scourge of hallucinated citations (iillustrated, fittingly, by generative AI to the right), and recently sanctioned a lawyer $2,500 for filing a brief with 21 shady citations (and evasive followup when asked about them). The case is Fletcher v. Experian and here is my recent Texas Lawbook article about it, and some practical lessons that it teaches (namely: (a) “don’t eat soup with a fork,” using general-purpose AI products for the wrong purposes; (b) don’t ignore “red flags” about citations and quotes that are too good to be true; and (c) if you make a mistake, for goodness sakes just apologize and move on, rather than trying to stall an obviously upset judge or judges.)

My friend Art Ayala recently visited the Texas Appellate Law Podcast to discuss the complexities of securing supersedeas bonds when a client faces an adverse verdict. Key topics include:

• Timing: Why counsel should consider advising clients to initiate the bonding conversation even before a judgment is entered.
• Process: How process typically flows from the initial call with a client to bond issuance.
• Collateral Options: Pros and cons of various collateral options.

You can listen to the full conversation here: Supersedeas Bonds in the Real World.

In Associated Prof. Educators of La. v. EDU20/20, LLC, the Fifth Circuit addressed a classic “bad leaver” case about a former employee who had worked for his employer and a competitor at the same time.

On the employer’s Lanham Act claim, the court reversed summary judgment in favor of the defendants, holding that declarations from two attendees who assumed an affiliation between competing educational organizations, based on the defendant’s use of the plaintiff’s logo in presentations, constituted competent evidence of actual confusion. The Court emphasized that at the summary judgment stage, inferences must be drawn in favor of the nonmovant, and “misdirected inbound inquiries,” such as emails sent to the wrong organization, “are ‘indicia of actual confusion.'”

On the trade secret claims, the court affirmed summary judgment for the defendants. The Court held that the plaintiff’s mentor-training materials did not qualify as trade secrets because they were shared with training participants who had no confidentiality obligations. As to a client list that the plaintiff alleged was misappropriated, the Court held that the plaintiff failed to demonstrate with competent summary judgment evidence that the list even existed. And as for a member database, the court determined that the information it contained-largely contact details of educators employed by Louisiana public schools-was readily ascertainable through public records requests and thus did not constitute a protectable trade secret.

No. 24-30640, Feb. 16, 2026.

In Vapor Tech. Ass’n v. Graham, “[a] group of retailers, distributors, and trade associations” challenged a state law about “vaping” equipment. The Fifth Circuit held that they lacked standing: “Rather than identify a particularized constitutional injury of their own, they assert a generalized grievance: that Mississippi has enacted and seeks to enforce a statute allegedly inconsistent with federal law. But a generalized interest in constitutional governance, standing alone, is insufficient to confer standing. Article III bars federal courts from resolving such abstract disputes.” No. 25-60694 (Feb. 11, 2026).

Last Friday, the Fifth Circuit held that many immigrants arrested inside the U.S. after unlawful entry can be treated as “applicants for admission” under the Immigration Code and can be detained without bond while their removal cases proceed.The opinion has dranw considerable attention as the first circuit-level treatment of an issue that affects about two million people nationwide.

As the majority begins, the specific statutory interpretation issue “while novel is not recondite.” It can be summarized as follows – whether the highlighted language establishes two conditions for detention, or only one that appears in two different places:

Buenrostro-Mendez v. Bondi, No. 25-20496 (Feb. 6, 2026).

In Dentons US LLP v. Stairway Legacy Assets, LP, the Fifth Circuit held that the Dentons law firm was not a third-party beneficiary of a contract  (while also concluding the merits of this point had been forfeited.).

Under Delaware law, a third-party beneficiary must show that the contracting parties intended to benefit the third party, that any benefit was a gift or in satisfaction of a preexisting obligation, and that the intent to benefit was a material part of the contract’s purpose, with courts looking to the contract’s language to discern that intent. .

The contract did not identify Dentons or its predecessor, and the claimants did not  “facts which could reasonably lead to the inference” that the parties intended to benefit Dentons, not crediting an argument about the general “Net Revenues” definition in the contract. No. 25-40235; Feb. 2, 2026

I recently published a short comment on the new Texas Rule of Appellate Procedure requiring a substantive introduction to petitions for review, in which I question the value of introductions in a time when generative AI can review and summarize the most complex of briefs in a few seconds.

McLemore v. Lumen Technologies held that the district court abused its discretion by dismissing a securities complaint with prejudice, without explaining why amendment would be futile, emphasizing that the default practice is dismissal without prejudice or liberal leave to amend. Specifically, the Court noted that Rule 15(a)(2) “evinces a bias in favor of granting leave to amend,” and that an initial Rule 12(b)(6) dismissal should ordinarily be without prejudice unless it is clear the defects are incurable. The Court declined to opine on the merits of the securities claims. No. 25-30264; Jan. 30, 2026.

With most high-profile public-law litigation in the Second and Ninth Circuits at present, the recent “Venue Wars” have cooled off, but venue disputes persist. In In re Trubridge, Inc., the Fifth Circuit found no clear abuse of discretion in denying a transfer motion, even though a forum-selection clause referred to Alabama courts.

The Court concluded the clause was unenforceable because Louisiana has a strong public policy barring forum-selection clauses in contracts with public entities, and the plaintiff here—a Louisiana political subdivision—fell squarely within that protectiion. With no forum-selection clause to trigger the Atlantic Marine framework, the district court proceed under Section 1404(a). The Court held the district court “explicitly considered the convenience of the parties and various public-interest considerations but simply concluded that none warranted transfer ….” No. 5-30727; Jan. 30, 2026.

Trinseo Europe GmBH v. Kellogg Brown & Root reviews several important issues of trade-secret law while affirming a JNOV of a $75 million damages verdict; among them, this basic reminder: “[T]rade secret damages—whether measured by a reasonable royalty or lost profits—must, like patent damages, ‘reflect the value attributable to the infringing features of the product, and no more.'” No. No. 24-20460 (Jan. 21, 2026).

The Washington Post offers this lighthearted but substantive quiz to help you identify your perfect font. Give it a try!

Based on confidential discovery material about decades-old abuse allegations from the Archdiocese of New Orleans’s internal investigation—concerning a priest not listed on the public “Credibly Accused List” and not named in any proof of claim—an attorney texted a high school principal to confirm the priest still served as chaplain and then emailed a reporter naming the priest, identifying his employment, and urging the reporter to “[k]eep this guy on your radar.”

Enforcing a protective order and affirming the trial courts’ substantial sanction on the attorney, Trahant v. Unofficial Committee holds that even if a person’s name or workplace are publicly knowable, linking that person to non-public abuse allegations learned through discovery is confidential under that order, and may not be disclosed absent consent or a court order. Emphasizing the protective order’s specified mechanism for challenging confidentiality designations, the Court rejected the notion that perceived “over-classification” permits unilateral disclosure, noting the proper course is to seek declassification from the court before dissemination.

As to remedy, the Court afirmed a compensatory fee award under Rule 37(b)(2) as a proportionate remedy tailored to the expenses caused by the violation. The amount was supported by invoices and a trustee report that the bankruptcy court expressly considered, and the award reflected a roughly 50% reduction from the total costs to ensure the sanction was no more severe than necessary to deter and redress the misconduct. No. 23-30466, Jan. 2, 2026.

The ghost of Edward Young (right) inspired a vigorous debate about the scope of the doctrine named for him in La Union del Pueblo v. Nelson (and two consolidated, related cases). A Ffth Circuit panel majority held that it had collateral-order jurisdiction to review the denial of sovereign immunity in a dispute about a Texas election law, concluding that  the Secretary of State may be sued as to provisions that she directly operationalizes (such as the DPS data-matching and registrar sanction regime, and the official forms and tools that local officials must use for mail voting and voter assistance). It barred suits against the Secretary for provisions enforced by local actors or dependent on prosecutorial discretion. Standing was satisfied for the surviving claims because the Secretary’s form-setting and registrar-sanction roles are causally connected to the alleged injuries and judicial relief would redress them at least in part.

A dissent would have dismissed the entire case, arguing the Court’s Ex parte Young jurisprudence has become a “No Nexus Rule” that dispenses with any enforcement connection between the named defendant and the plaintiff. No. 22-50775 (Dec. 31, 2025).

Emboldened by the Supreme Court upholding age verification for adult sites in Free Speech Coalition, Inc. v. Paxton, 606 U.S. 461 (2025),Texas chose to impose age-verification requirements for online app purchases. A district court enjoined that law and its ruling is now on appeal to the Fifth Circuit.

Specifically, in Computer & Communications Industry Ass’n v. Paxton, the district court held thatTexas’s SB 2420 is a content-based regulation of speech subject to strict scrutiny. The court noted that the statute’s coverage turns on what speech is provided by an app—exempting, for example, nonprofit apps offering emergency services or standardized testing—and thus “defin[es] regulated speech by particular subject matter.” It distinguished the adult-entertainment law by describing SB 2420’s sweeping restrictions across virtually all apps, including ones involving constitutionally protected news, education, and entertainment.

Applying strict scrutiny, the court held that the statute is overbroad and underinclusive—blocking minors from virtually all apps, even while the same content remains available through preloaded browsers or offline channels—and Texas offered no evidence that most covered apps cause the harms the State invoked. The court also noted less speech-restrictive alternatives, such as education and voluntary tools, rather than mandating universal age verification and individualized parental consent for all downloads and in-app purchases. No. 1:25-cv-01660-RP (W.D. Tex. Dec. 23, 2025.

In Ramirez v. Granado, a Fifth Circuit panel reversed a summary judgment on qualified immunity in a police-shooting case, producing a vigorous dispute between a concurrence and dissent.

The majority found genuine issues for trial, reasoning that a jury could infer that the decedent posed no immediate threat when the fatal shots were fired as he fled with his back turned. It highlighted that, after an initial miss, the officer fired six more rounds “without warning,” four striking “the back of [the decedent’s] head and shoulders,” and then asked, “did he have a gun?”—evidence a jury could use to reject a claim of an imminent threat. erception..

The dissent read the relevant videos and radio traffic as yielding one, dispositive narrative: “Here are the undisputed (and indisputable) facts,” including a 120‑mph chase into a residential area, an “armed and dangerous” advisory, the suspect “holding a gun,” and an eight‑second window from “he has a gun!” to the final shot—concluding that denying qualified immunity is “wrong.” It deemed the “did he have a gun?” remark “astonishingly irrelevant” because the officer learned the occupants were armed and dangerous and nothing “suggest[s] Officer Granado was lying.”

Legally, the majority (and concurrence) emphasize the “totality of the circumstances,” the predominance of the threat‑of‑harm factor once deadly force is used, and that a jury could find the justification had “ceased” by the time shots were fired at a suspect running away. The concurrence added that the dissent’s “mile‑wide” citations involve “overt‑threat” or “furtive‑reach” cases that don’t fit this record, when viewed favorably to the plaintiff (as it saw the record, showing continuous visual contact, no commands to disarm, no pointing, and back‑to‑front wound paths).

The dissent, based on its view of the video/radio evidence, reasoned that qualified immunity applies absent a case “that squarely governs” these “specific facts”: “It is the majority, the concurrence, and [the plaintiff’s] job to point to a case that squarely governs this one. It is not mine.” The dissent cited two Fifth Circuit opinions about firearms that it saw as “materially indistinguishable” from the facts of this case.

En banc review seems likely; serious consideration of en banc review, a certainty. No. 24-10755; Dec. 10, 2025.

The Fifth Circuit denied en banc review of ExxonMobil v. NLRB, a dispute about the NLRB’s decision to vacate an earlier decision and retry the matter (decried by Exxon as a political maneuver; defended by the NLRB as the result of a conflict for a board member involved in the earlier proceeding). A dissent from the denial of en banc review states the case against excessive “independence” for independent agencies, and also has some observations about party-presentation as applied to the evolution of the parties’ arguments during this long-lived case. No. 23-60495 (Dec. 17, 2025).

Inspired by a recent Seventh Circuit case involving similar facts (and the benefit of jurisdictional discovery), the Fifth Circuit reheard Ethridge v. Samsung and concluded that there was not personal jurisdiction in Texas over the plaintiff’s claim to have been injured by a flammable battery made by Samsung.

The new opinion summarizes: “Nothing in this opinion should be construed as answering whether the precise measures Samsung took to sell its products only to the industrial market create a necessary baseline for specific personal jurisdiction cases like this one. It is enough to say that Samsung affirmatively limited its contacts to approved manufacturers in Texas, and Ethridge has not shown that his injuries are related to those contacts.” No. 23-40094 (Dec. 15, 2025, on rehearing).

Wang challenged the constitutionality of a Texas law that restricts certain property acquisitions by persons domiciled in China. His claim failed for lack of standing: “We hold Wang lacks standing because he fails to allege an injury-infact. That’s for two independent reasons. The first reason (A) is that SB 17 does not arguably proscribe Wang’s conduct because he has failed to allege that he is domiciled in China. And the second reason (B) is that Wang has not alleged a substantial threat of future enforcement by the Attorney General.” Wang v. Paxton, No. 25-20354 (Dec. 11, 2025).

Font selection has global consequences, as the State Department returns from Calibri to Times New Roman (imho, the State Department should jettison both fonts and use a tasteful modern serif font, such as Equity or Book Antigua).

The reticulated python (right) can be found in South Asia. A “reticulated statute” was at issue in Baylor All Saints Medical Center v. Kennedy, in which the Fifth Circuit concluded that the district court had no jurisdiction to hear a Medicare-reimbursement dispute when agency review had not been exhausted. The Court noted: “To be sure, a court may waive the administrative exhaustion requirement if administrative remedies would be exhaustive … Howeer, the court does not reach [that issue]  because the case does not satisfy the ‘jurisdictional requirement that claims be presented to the agency.'” No. 24-10934 (Dec. 9, 2025).

In T&W Holding Co. v. City of Kemah, the Fifth Circuit held that challenges to a municipal “zero-occupancy” order were ripe because the City had already taken a sufficiently final position by issuing the relevant notice, which immediately barred all use of the building.

Rejecting the district court’s view that a further City Council decision was required, the court emphasized that de facto finality exists where the government’s action leaves no doubt as to how the regulation applies to the property: “The City reached a sufficiently final position when the alleged taking occurred—specifically, when Shoaf issued the zero-occupancy notice,” and “[a]s soon as Shoaf posted the zero-occupancy notice, Plaintiffs lost all economic use of the building.” No.
24-40679; Nov. 21, 2025

Computer Sciences Corp. v. Tata Consultancy Services reformed a trade-secret injunction to better match the substantial damages that were also awarded. In particular, the Fifth Circuit held that where a plaintiff has already received unjust enrichment damages—calculated here as avoided development costs—the injunction cannot also bar the defendant’s future use of the technology it built during the misappropriation

The Court recognized two, related principles: (1) unjust enrichment damages are designed to strip the defendant of the benefit accrued from misappropriation and put the defendant in the position it would have occupied had it incurred those development costs lawfully; (2) an injunction cannot then deprive the defendant of the very fruits it has now effectively paid for, because that would be duplicative and punitive.

In other words, once the defendant has been compelled to pay the avoided costs, equity does not also forbid use of the resulting post-misappropriation implementation. Equity does, however, continue to forbid any possession, access, or use of the trade secrets themselves.

The Cout also required the injunction to be conformed to Federal Rule of Civil Procedure 65(d)(2), to clarify that the scope of the specific parties bound by the injunction was consistent with the terms of that rule. No. 24-10749; Nov. 21, 2025.

If you aren’t yet a member of the Bar Association of the Fifth Federal Circuit (or “BAFFC” to those in the know) you should join! Our gifted new executive director, Donna Cuneo, led the charge for this awesome new publication, “Following the Fifth” that has general news and also highlights the great work of Krystil Lawton and Walter Woodruff — here is the first edition!

Storey Mountain LLC v. JP Morgan Chase laments: “Despite the long line of cases requiring parties to establish the citizenship of an LLC’s members, this remains ‘an evergreen problem in our circuit.'”

The Court thus remanded for further development of the record about the parties’ citizenship, reminding that the following was not sufficient to establish diversity jurisdiction as to an LLC: “Storey Mountain LLC ‘is a limited liability company organized under the laws of Wyoming, with its principal place of business in Florida. For purposes of diversity, Garnishor is a citizen of Wyoming and Florida.” No. 24-20535 (Nov. 10, 2025).

The interlocutory appeal in Arnold v. Barbers Hill ISD arose from a challenge to a school district’s hair-code policy. The plaintiffs noticed depositions of the superintendent and a former board president to probe the Board’s reasons for adopting and enforcing the policy. The district asked the court to bar questions about lawmakers’ “subjective intentions, motivations, [and] thought processes” by invoking legislative privilege on their behalf.

The Fifth Circuit held that legislative privilege is “personal to the legislator,” and observed that no individual privilege holder had actually invoked it or otherwise participated in the proceedings. Therefore, the governmental entity could not assert it on their behalf. As the Court concluded: “This case’s cart precedes its horse.” No. 23-20256, Nov. 3, 2025.

In Legendre v. Harrah’s Casino, the Fifth Circuit held that a genuine fact issue existed as to negligence, requiring reversal of a summary judgment, where surveillance footage and testimony allowed a reasonable inference of inattentive conduct by an employee.

A patron of Harrah’s Casino bumped into a casino employee on the casino floor. The record showed that  the employee admitted he “was walking while looking down fixing [his] facemask” and did not see the patron before impact.. A surveillance video, while brief, showed him not looking where he was going. As the Court summarized: “whether this momentary inattention amounts to negligence is a fact issue, which the district court should not have resolved.” No. 24-30689, Oct. 30, 2025.

Ackerman v. Arkema involved the rule of orderliness and a question of Texas limitations law about the tolling effect of a class-action filing. Anchoring its analysis in prior Circuit precedent, the panel majority said that, absent intervening state authority, it must adhere to earlier panel decisions predicting Texas law, because “a prior panel’s interpretation of state law has binding precedential effect on other panels of this court absent a subsequent state court decision or amendment rendering our prior decision clearly wrong.”

That said, the panel divided over whether to certify the tolling question to the Texas Supreme Court. The majority declined to do so, emphasizing that neither party pressed for it, that one side opposed it at argument while the other was tepid, and that the issue did not present a “close[] question” in light of Circuit precedent. The dissent would have certified. No. 25-20006, Oct. 31, 2025.

The arcane but still vital “strips and gores” doctrine of Texas property law appeared in Legacy Housing Corp. v. City of Horseshoe Bay, in which the Fifth Circuit held that doctrine did not award the developer ownership of a five-foot “greenbelt” strip, because the original grantor conveyed lots by express reference to a recorded plat that mapped each lot’s boundary and the contiguous greenbelt as separate. “Texas’s strips and gores doctrine does not apply to unambiguous conveyances unless the case involves a road or right of way,” and the greenbelt here was neither. No. 24-50462; Oct. 31, 2025.

Jones v. City of Hutto reversed a judgment for a former mayor based on 42 § 1981, while also describing the limits for municipal liability for breach of contract claims,

On the contract issue, the Court noted that the Texas Local Government Code waives governmental immunity for certain written contracts, permitting a breach claim against a city, and held that a municipality’s attempted rescission of a valid separation agreement constituted a breach even where the employee retained the severance payment. At the same time, the Court reminded that Section 271.153(b) bars recovery of consequential damages such as lost profits or reputational harm. Here, the plaintiff “pursued and prevailed on his right to retain the separation payment made under the contract,” which was sufficient to support a potential award of attorney’s fees, but not to open the door to consequential losses.

The Court also clarified attribution principles relevant to contract liability. Disparaging statements by individual councilmembers did not establish breach by the municipality because they were not actions of the city or the council as a body; conversely, a formal council resolution purporting to rescind the agreement was attributable to the city and was the breach that impaired contractual rights. No. 24-50096, Oct. 7, 2025.

My friend Arturo Ayala recently forwarded me yet another interesting article by his agency about the market for supersedeas bonds, “Appeal Bonds in a World of Nuclear Verdicts and Higher Interest Rates.” Worth a look!

In Lewis Brisbois Bisgaard & Smith LLP v. Bitgood, the Fifth Circuit vacated statutory damages awarded under the Lanham Act, remanding because the district court did not explain the statutory basis for its award in light of a gap in registration for the primary mark at issue. The panel rejected the argument that a prior panel’s footnote foreclosed statutory damages, characterizing that statement as dicta.

Central to the ruling was the Court’s recognition that statutory damages under 15 U.S.C. § 1117(c) require infringement of a registered mark under § 1114(1)(a). Because the “Lewis Brisbois Bisgaard & Smith” registration had lapsed during the relevant period, the panel concluded it could not assess whether the award could be sustained by other, similar registered marks allegedly “identical with, or substantially indistinguishable from,” the misused name. The Fifth Circuit also directed the district court to address a Seventh Amendment issue on remand. No. 24-20458, Oct. 23, 2025

Rose v. Aaron held that a damages award could not stand because it did not reflect restitution, reliance, or expectancy damages and lacked the necessary methodology to measure the plaintiff’s economic position had the contract been performed.

Specificaly, the Fifth Circuit that a damages award based on the cost of improvements to a ranch were not restitution (no benefit conferred on the breaching party), not reliance (expenditures were not made toward performing the contract), and not expectancy because the factfinder neither offset avoided costs nor quantified other claimed harms with objective evidence.

On expectancy damages in particular, the court faulted the absence of proof that the harms from the breach exceeded the gains the nonbreaching party realized by avoiding future performance, leaving the award ambiguous as to whether it placed the claimant in a better, equal, or worse position than full performance. No. 21-40718 (Oct. 17, 2025).

Hignell-Stark v. City of New Orleans returns to the seemingly evergreen topic of short-term rental regulation by the City of New Orleans. These are some of the holdings reached:

• Equal Protection. The Fifth Circuit struck down the City’s categorical ban on business entities holding owner or operator permits. Because natural‑person owners and juridical‑person owners are similarly situated for purposes of STR permitting, the City’s prohibition on business‑held licenses could survive only if it bore a rational relationship to a legitimate governmental interest. The court found none. The City’s livability and neighborhood‑character concerns relate to guest conduct and on‑site oversight, not the legal identity of the permittee.And the Court disagreed that corporate form would impede enforcement or increase administrative burdens, noting that the Code already limits concentration through one‑permit‑per‑block and one‑permit‑per‑person rules.
• First Amendment. The Court distinguished between permissible disclosure requirements and impermissible content restriction. It upheld requirements that STR ads include factual, uncontroversial information such as permit numbers, accessibility details, and bedroom/occupancy counts, as well as prohibitions on advertising unpermitted or over‑capacity rentals. By contrast, the rule that “each short‑term rental listing advertises only one dwelling unit” failed, because the City did not say how the “one‑unit‑per‑ad” limitation directly advances a substantial interest or why it is no more extensive than necessary, and the Curt declined to supply post hoc justifications.

No. 24-30160; Oct. 7, 2025

OSR Enterprises AG v. REE Automotive, Ltd. affirmed the district court’s conclusion, in a forum non conveniens analysis, that Israel is an adequate alternative forum for a trade-secret dispute:

• Extraterritorial injunctive relief: Faced with competing expert declarations about whether Israeli courts would issue extraterritorial injunctions for trade-secret misappropriation, the Fifth Circuit concluded the evidence did not show Israel would leave the plaintiff with “no remedy at all.” The plaintiff’s showing of what is “very likely” under Israeli law, disputed by the defense expert, was insufficient to rebut adequacy.
• Availability of unfair competition relief: Even assuming some uncertainty about Israel’s Commercial Torts Law, the Court held that adequacy does not require identical causes of action or relief. Because Israeli law recognizes trade secret misappropriation and would provide some remedy, Israel remained adequate even if certain claims might be limited.
• Self-incrimination privilege and access to evidence: The Court also rejected the argument that Israeli witnesses’ potential invocation of a self‑incrimination privilege undermines adequacy, noting that adequacy typically turns on whether remedies are clearly unsatisfactory, rather than evidentiary privileges. The Court also noted that key third-party witnesses are in Israel and would likely be beyond the compulsory process of a U.S. court, undercutting claims that American proceedings would materially improve access.

No. 24-50779; Oct. 10, 2025.

Stone v. Graham, 449 U.S. 39 (1980), holds:

“Posting of religious texts on the wall  serves no such educational function. If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause.“

Consistent with that precedent, in Roake v Brumley, a Fifth Circuit panel affirmed an injunction against a Louisiana law requiring the display of the Ten Commandments in school classrooms, Nevertheless, the full Court has voted to take the case en banc (interestingly, a somewhat overheated effort to get immediate en banc review of this case was rejected 14-3 soon after the trial court’s ruling was appealed.

A challenging administrative law issue, about certain airline fee-disclosure requirements, produced a panel opinion that agreed with FAA’s authority but remanded for consideration of new information. The Fifth Circuit recently voted to take the case en banc.

A Louisiana statute requires that cancellation of an insurance policy be done in a certain way; the Fifth Circuit affirmed judgment for the insurer in Williams v. GoAuto Ins. Co.: “What is necessary prior to cancellation is that the insurer had “receipt” of notice of cancellation sent by the premium finance company. … This is a modern statute set in current times, and company computers do much that individuals once did. GoAuto’s method of receiving the notice and reacting to it satisfies the statute.” No. 24-30646 (Oct. 3, 2025).

Providing fuel both to those who argue (a) that the claimed invasion of the United States by rogue Venezuelans is not, in fact, a high-priority item on the national agenda, and also to those who argue that (b) that the judiciary moves too deliberately to meaningfully engage questions of national security, the Fifth Circuit has voted to rehear en banc the case of W.M.M. v. Trump, about the President’s power to order certain deportations under the Alien Enemies Act.

Returning to the Fifth Circuit after the Supreme Court rejected the Circuit’s “moment-of-threat” doctrine, the panel in Barnes v. Felix now applied a totality-of-the-circumstances analysis.

The Court considered the events leading up to the shooting: the deputy stopped a vehicle for outstanding toll violations, and during the stop, the driver ignored commands, grabbed his keys, and attempted to flee by driving away on a busy freeway. The deputy, partially inside the moving vehicle, fired his weapon as the car accelerated. The Court held that the deputy’s use of deadly force did not violate the Fourth Amendment because his conduct was not objectively unreasonable given the immediate risks to himself and the public posed by the suspect’s sudden flight.

On that basis, the Court applied qualified immunity, concluding that “the plaintiffs have failed to satisfy the first step of the qualified-immunity analysis—raising a dispute of material fact on whether [the decedent’s] Fourth Amendment right to be free from excessive force was violated ….” No. 22-20519, Sep. 18, 2025.

The first two paragraphs elegantly place this dispute within many decades of the legal system’s interaction with the automobile:

“As advances of the genre of the Morse code, with its twenty-six letters and ten numerals, railroads, and flight challenged the social order and perforce its legal regime, today we repair to the horseless carriage with its then unimaginable role in daily life, and as with each of the past challenges to the essential task of policing its usage.

From a unanimous Supreme Court came pretextual stops, enabling police officers to stop an automobile upon probable cause that any traffic violation has occurred, even if the stop is in search of another violation. Even before that, the Court, aware of the “inordinate risk confronting an officer as he approaches a person seated in a vehicle,” had granted officers the right to order the driver out of the vehicle. The import of these decisions cannot be understated, as traffic stops are among the most common interactions the public has with police.” (citations omitted)

In State of Texas v. EPA, the Fifth Circuit upheld the EPA’s authority to substantively evaluate and disapprove a State Implementation Plan under the Clean Air Act’s Good Neighbor Provision. The court confirmed that EPA may require SIPs to address both “significant[] contribut[ion] to nonattainment” and independent “interfere[nce] with maintenance” in other states, including areas not formally designated nonattainment, and emphasized that “The text puts EPA in the driver’s seat for evaluating a SIP’s compliance with the CAA.”

The court also approved EPA’s reliance on up-to-date interstate transport modeling and a 2017 projection year as reasonable, reiterating that “nothing in the statute places the EPA under an obligation to provide specific metrics to States before they undertake to fulfill their good neighbor obligations.” Because Texas’s SIP lacked analysis quantifying downwind impacts and ignored maintenance receptors, EPA’s disapproval was neither arbitrary nor capricious. 16-60670; Sept. 22, 2025. A dissent would vacate the EPA’s action for missing the 12-month deadline established by a statute.

I&I Hair v. Beauty Plus The Fifth Circuit rejected a takings claim against the City of Mesquite when that claim arose from the “alleged ‘thwarting of [plaintiffs’] previously approved development and reimbursement rights” governed by their contracts with the City and the Management District.”

The plaintiffs argued that the City had to have acted in its sovereign capacity because “only a governmental entity acting in its governmental or sovereign capacity can change the regulations and rules mid-stream ….”

The Court disagreed: “Although only government entities can alter a regulatory scheme, any party to a contract may attempt—or refuse—to renegotiate the terms of an
agreement midstream. In such circumstances, any resulting dispute is contractual. That conclusion does not change merely because the party is a governmental entity.”

Mesquite Asset Recovery Group v. City of Mesquite, No. 24-11025 (Sept. 23, 2025).

In WorldVue Connect Global, LLC v. Szuch, the Fifth Circuit largely upheld a preliminary injunction enforcing one-year non-solicitation and confidentiality covenants arising from a business sale, whille narrowing the confidentiality restraint. It addressed these specific matters:

• Geographic scope: The non-solicitation covenant applies to recruiting employees and contractors who perform work in the Restricted Area, even if they live and work abroad, aligning the covenant with contact language about “supporting … networks in the Restricted Area.”
• Covered personnel: Workers supplied through staffing agencies can still be “independent contractors” of the buyer and are within the covenant’s protection.
• Specific hires: Barring the hiring of eleven named contractors was proper given evidence they had already been solicited and to prevent the breaching party from reaping the benefit of the breach.
• Confidential information: The court modified the injunction to exclude the seller’s pre-existing personal knowledge of worker identities: “The term ‘confidential information’ … does not include the Szuch Group’s personal knowledge regarding the identity of personnel who worked for or with WorldVue.” Company-developed information (e.g., assessments of skills and value created after the 2022/2024 transactions) remains protected.

The Court also affirmed as to the trial court’s assessment of other equitable factors related to injunctive relief. No. 24-20571, Sept. 16, 2025

This contract provision is not a clear and unequivocal waiver of the right to remove a case to federal court:

Gulf Coast Pharmaceuticals Plus v. RFT Consulting, No. 24-60480 (Sept. 10, 2025).

The Fifth Circuit waived goodbye (for now) to the long-lived dispute of Abraham Watkins v. Festeryga, concluding that the defendant did not waiver his right to remove to federal court. The Court concluded that “the district court committed two legal errors in concluding that Festeryga waived removal.”

First, the district court erred in reading Circuit precedent to establish “a supposed bright line rule: filing any motion to dismiss automatically invokes state-court jurisdiction.” The TCPA motion filed by Festeyga was never set for hearing, or ruled upon, and the filing of the motion had collateral effects (a discovery stay).

Second, the discovery stay created by filing the TCPA motion was not a waiver: “Halting discovery is the quintessential act of preserving the status quo until a new forum takes over.” No. 23-20337 (Sept. 11, 2025).

McRaney v. N. Am. Mission Board arises from a contentious dispute between the North American Mission Board, a Baptist organization, and the former executive director of the Baptist Convention of Maryland/Delaware (“BACM”). He alleged that the Board interfered with his employment relationship with BACM; the Board argued that it was protected by ecclesiastical immunity.

The case produced two difficult and intertwined legal issues: (1) the application of ecclesiastical immunity to the sprawling, decentralized structure of the various affiliates of the Southern Baptist Convention, and (2) the application of facially neutral tort principles to a job position with both secular and religious responsibilities (put another way, the plaintiff had to render unto both God and Caesar to do his job effectively). The panel majority presents some examples of the difficulty with the second issue:

“When a secular court considers the SPA, how should it determine if McRaney succeeded in ‘penetrating lostness,’ ‘making disciples,’ and ‘church planting’? Can a secular court determine whether NAMB’s conduct was the ‘proximate cause’ of BCMD’s decision to terminate McRaney, without unlawfully intruding on a religious organization’s internal management decisions? And can a secular court decide it was ‘false’ that McRaney’s leadership lacked Christ-like character?”

(citation omitted).

Echoing a close en banc vote after the denial of a motion to dismiss earlier in this litigation, the panel split 2-1, with the majority resolving the above issues in favor of the Board, and a dissent, in favor of the former director. No. 23-60494 (Sept. 9, 2025).

Attorneys who represent religious organizations should treat the majority opinion as a “compliance guide” to ensure that their organizations’ practices receive the full protection to which they may be entitled.

Fugedi v. Initram, Inc., addresses whether a litigant can create diversity jurisdiction by purporting to convey title to property in an out-of-state trustee. The Fifth Circuit concluded that 28 U.S.C. § 1359 bars this maneuver, holding that the statute’s prohibition on parties “improperly or collusively made or joined to invoke the jurisdiction of such court” applies with equal force to trusts.

The panel emphasized that limiting language—“by assignment or otherwise”—sweeps broadly enough to reach trusteeship arrangement. “Nothing in those words excludes the use of a trust,” observed the Court, and permitting such a tactic would sanction precisely the “manufacture of Federal jurisdiction” Congress meant to foreclose.

Applying that reading, the Court held that this trustee was a “sham” selected solely because his non-Texas citizenship would create complete diversity in a purely local real-property dispute. The record showed that the trustee had no meaningful role beyond litigation, lacked relevant expertise, and was installed mere weeks before suit. No. 24-40283, Sept. 9, 2025.

The Fifth Circuit reinstated a jury verdict, set aside by the trial court as unsupported by sufficient evidence, in I&I Hair v. Beauty Plus. The case involved unfair-competition claims about synthetic hair braids.

The district court opinion identified, inter alia, problems with (1) whether the plaintiff presented adequate evidence of its own lost-profit damages (i.e., evidence about business expenses and overhead, to avoid overreliance on informatoin about gross revenue and profit margin), and (2) whether the plaintiff inappropriately asked the jury to equate defendants’ profits with the plaintiff’s lost profits, without sufficient evidence that I&I would have captured all those sales.

The Fifth Circuit held that the jury had a sufficient foundation for its damages award, reminding generally that “[plainitff] had to provide evidence that would permit an award; it does not have to substantiate the specific figure the jury awarded.” No. 24-10374 (Sept. 5, 2025).

In La Union del Pueblo Entero v. Abbott, the Fifth Circuit examined organizational standing as to three sets of claims about Texas Senate Bill 1’s voter-assistance rules.

1. No plaintiff organization had standing to challenge the statute’s new disclosure requirements for ballot-assistors. Fears that volunteers might be prosecuted for filling out the form incorrectly were “speculative” and “depend on a ‘highly attenuated chain of possibilities.’” Because there was no credible threat of enforcement, the court said the alleged chill on recruitment, the reallocation of staff time, and the need to educate volunteers were all self-inflicted setbacks that “do not suffice to establish injury in fact.”
2. The same held true for a challenge to the revised oath assistors must swear. The organizations argued the additional “penalty of perjury” language scared off helpers. The court was unpersuaded, emphasizing that the oath merely clarified duties that were already on the books and repeating that “[p]laintiffs ‘cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.’”
3. The court found osome rganizational standing for SB 1’s two compensation bans. One provision criminalizes paying—or being paid—for helping a voter complete a mail ballot. Another criminalizes compensated “vote harvesting” in the presence of a ballot. Two groups showed that their staff are routinely paid to provide exactly the kind of assistance the statute forbids and that they intend to keep doing so. Because the State had not disavowed prosecutions, the threat of enforcement was sufficiently concrete, imminent, and traceable to the defendants to confer standing.

No. 24-50826 (Aug. 29, 2025).

Salvador Dali mused about the malleable nature of time in his painting The Persistence of Memory.

Similarly, a Biden-era dispute between the Texas and federal governments, addressing an aggressive state statute about immigration enforement, was resolved by a 2-1 panel opinion in favor of federal preemption in United States v.Texas.

Despite the change of Administrations–and with it, a massive budget increase for ICE that drastically expanded federal immigration enforcement–this Biden-era remannt will now be reheard en banc later this year or early next.

The panel majority in Spectrum WT v. Wendler concluded that a student-organized drag show is protected expressive conduct under the First Amendment. The court emphasized that theatrical performance “plainly involve[s] expressive conduct,” and that in the context of an LGBT+ charity event, the show’s message of solidarity was “unmistakable.”

Because the university’s auditorium was opened to a wide range of outside speakers and events, the panel classified it as a designated public forum; banning drag shows was therefore a content-based restriction subject to strict scrutiny. The majority found no compelling justification for that ban, noting that the school already had time-, place-, and manner rules to police lewd conduct and that “a pointed expression of solidarity” could not be suppressed simply because administrators disliked the medium chosen.

The majority summarized: “[T]his drag show would convey such a message. That is enough to implicate the First Amendment.” A dissent would defer to the university administration. No. 23-10994, Aug. 18 2025.

Fire Protection Service, Inc. v. Servitec addressed whether several key terms in the “Texas Fair Practices of Equipment Manufacturers, Distributors, Wholesalers, and Dealers Act ” are ambiguous.

The threshold question was whether the plaintiff engaged in the sale of “equipment” as defined by that statute, which in turn raised the question whether its products–a type of lifeboat–are used by a kind of commercial activity referenced by the statute, and if so, whether their use is “in connection with” that activityu.

As for the type of activity, examining the terms “mining” and “industrial activities,” the Court canvassed dictionaries and long-standing Texas precedent and ruled that each term carries a settled, ordinary meaning broad enough to encompass offshore oil and gas operations, commercial shipping, and similar endeavors.

Turning to the statutory phrase “used … in connection with,” the court again found no textual uncertainty. Citing recent Texas Supreme Court authority, the panel emphasized that the words “in connection with” are inherently expansive and “cannot ‘imply more than a tangential connection’ unless the statute’s text constricts its ordinary meaning.” Because the Act contains no such limiting language, the court held that the statute unambiguously sweeps in equipment—such as life rafts—that bears even a tangential relationship to the covered commercial contexts. Noi. 24-20405 (Aug. 21, 2025).

My capable friend Arturo Ayala of Court Surety Bond Agency recently wrote this helpful short article, “Texas Rule Changes Securing Supersedeas Bonds on Appeal.” While the federal practice has different rules, the Texas rules are still useful background.

Anticipatory breach, or the lack of it, was the question in Penthol LLC v. Vertex Energy Operating LLC. Applying Texas law, the panel emphasized that repudiation requires an “absolute and unconditional” refusal to perform, and a trading company’s  letter did not meet that standard–it merely warned that the distributor would terminate the agreement if the manufacturer failed to cure an alleged breach within thirty business days.

Because that warning was both conditional (performance could still be rendered) and prospective (termination would occur only after the cure period), the court concluded it was not a repudiation. As the opinion summarized: “Letter 1 neither constituted nor served as the starting point for a repudiation, because [the] threat of nonperformance was neither absolute nor unconditional.”No. 24-20329, Aug. 14, 2025.

SpaceEx v. NLRB holds that the National Labor Relations Board’s “for-cause” removal protection for its five Members is likely unconstitutional because the Board, unlike the 1935 Federal Trade Commission, “is not a ‘mirror image’ of the FTC.” In the Fifth Circuit’s view, the Board wields extensive executive power—adjudicating unfair-labor-practice charges, directing elections, and petitioning federal courts for injunctions—yet lacks any statutory party-balancing requirement. Those differences place the NLRB outside the narrow safe harbor created by Humphrey’s Executor.

A dissent argued that an injunction should not issue absent proof that the contested provisions actually harmed the employers. No. 24-50627 (Aug. 19, 2025). (Mr. Humphrey appears above; history does not seem to have recorded an image of his executor.)

Hon David Gunn of Houston’s First Court of Appeals has given new life to the word “freshening” as an adjective for a frustrating series of court filings (thanks to Ben Taylor for drawing my attention to it):

Quorum issues have vexed efforts to have a special Texas legislative session in 2025. Meanwhile, in State v. Bondi, a Fifth Circuit panel majority held that the House may constitutionally count Members who vote by proxy toward a quorum. It reasoned that the U.S. Constitution’s Quorum Clause “does not require physical presence,” emphasizing that the Constitution speaks only of a “majority” and leaves each chamber broad discretion to decide how to “ascertain the fact” of that majority.

Specially, the Court concluded that remote‐participation rules adopted during the pandemic merely supply a permissible method for determining whether enough Members are participating, not a redefinition of the quorum itself. Because the underlying legislative record indisputably showed that more than half the House either voted or authorized a proxy to do so, the court declared that “the Constitution’s text, history, and tradition support remote voting and counting proxies as sufficient for quorum.”

The panel warned that reading the Constitution to demand physical presence would empower a minority to block legislation and “undermine the very purpose of the Quorum Clause: to ensure majoritarian rule.”

A dissent argued that the Quorum Clause’s reference to “compel[ling] the Attendance of absent Members” and more than two centuries of congressional practice show that a quorum exists only when a majority are physically in the chamber. By allowing the House to satisfy the quorum requirement with paper proxies, the dissent argued, the court stripped the Clause of its structural safeguard against minority rule and permitted Congress to “define the Constitution’s quorum requirement out of existence.” No. 24-10386, Aug. 15, 2025,

In DM Arbor Court, Ltd.. v. City of Houston, the Fifth Circuit held that the City’s denial of repair permits under its flood control ordinance constituted a categorical taking under the Supreme Court’s Lucas framework.

After the Arbor Court apartment complex was severely damaged by flooding, the City refused to issue repair permits unless the buildings were elevated to meet new floodplain requirements—a cost the court found to be “prohibitively expensive” and “economically unfeasible.” Both the property owner’s and the City’s experts agreed that, under these conditions, there was “no economically viable, or feasible, or beneficial use of the property.” The Fifth Circuit stated, “Saying that a property’s only remaining use is to hope for future development is the same as saying that the property must remain idle today. That is a categorical taking under Lucas.”

A dissent argued that the district court’s analysis was correct, emphasizing that Lucas takings are reserved for the “extraordinary case” where a regulation “permanently deprives property of all value. No. 23-20385, Aug. 12, 2025

Palms v. Texas Childrens Hospital, a case about religious objections to a flu vaccine, produced a difference of opinion as to whether the plaintiff’s accommodation claim had been forfeited.

The majority held that the plaintiff had forfeited her argument by failing to adequately brief how the district court erred in granting summary judgment, emphasizing that she “never states that TCH’s offered accommodation was unreasonable or explains why the district court could not dismiss her claim on this ground.” Citing established precedent, the majority reasoned that a party forfeits an argument by failing to “offer any supporting argument or citation to authority” or to “identify relevant legal standards and any relevant Fifth Circuit cases.”

The dissent contended that the plaintiff’s opening brief sufficiently challenged the timing and adequacy of the hospital’s accommodation, expressly arguing that the hospital’s delay in granting an accommodation was unreasonable and resulted in her being “impermissibly ‘suspended without pay’ due to her religious beliefs.” The dissent criticized the majority’s approach as a “legal trick-box” that would deprive employees of the ability to pursue meritorious claims of religious discrimination simply because the employer eventually ceased the challenged conduct. No. 24-20174, Aug. 11, 2025

A civilian treatement of contract formation appears in CAM Logistics LLC v. Pratt Indus., Inc., which applied Louisiana law to the question whether parties can be bound to a contract when they have not executed a written agreement, despite ongoing negotiations and partial performance.

The court held that when both parties contemplate a written contract as the form of their agreement, there is a presumption under Louisiana law that they do not intend to be bound until the contract is executed in that form. The presumption applied here because both sides “bargained for a written contract” and took steps such as exchanging draft agreements and seeking legal review, but never finalized or signed any document. ”

The court further rejected the argument that the parties’ performance—such as providing services and making payments—could override the lack of a signed contract (or in civilian parlance, “evidence the intention to cure its relative nullity”). No. 24-30806, Aug. 6, 2025.

The flight of the Democratic delegation from the Texas House has drawn a great deal of attention. The resulting legal filings in the Texas Supreme Court (Ken Paxton’s here, and these are the petition, response, and reply from the action filed by the Governor) display quality legal writing and excellent font choice. The Governor has chosen a classic look with a Century font, while the Texas Solicitor General uses Equity–generally speaking, a superior font, but perhaps not with the identical margins and spacing that one would use with Century:

Barnett v. American Express rejected a claim that arbitration was waived by substantially invoking the judicial process: “American Express did not substantially invoke the judicial process on Barnett’s FCRA claim by suing to collect her debt. Its previous suit brought only a generic breach of contract claim under Mississippi law. That is undoubtedly a different claim than Barnett’s subsequent FCRA action, which American Express immediately sought to arbitrate.” No. 24-60391 (July 29, 2025).

In Angelina Emergency Medicine Associates v. Blue Cross, the Fifth Circuit addressed the ambiguity of language used in various assignments of benefits, including terms such as “health care providers” or “practitioners providing care and treatment.”

The Court found that these terms were ambiguous as to whether they encompassed physician groups as assignees, noting that the assignments used “plain English for a lay audience” and that the descriptive, role-based language could reasonably be interpreted to include a class of people such as the physicians providing care to the patients. The court observed that there was no clear legal or contractual definition of “provider” in this context, and that the term could refer to both individual doctors and groups of doctors.

The Court further emphasized that the absence of “more precise form-language that explicitly delegates rights to the management entities to which the facility-based physicians belong” does not invalidate the assignment, given the ambiguity present. As a result, the court vacated summary judgment on this issue, holding that the ambiguity in the assignment language created a fact issue that precluded summary judgment. No. 24-10306, Aug. 8, 2025.

In Wright v. Honeywell Int’l, a Title VII case about a COVID vaccination requirement, the Fifth Circuit held (citations omitted):

Viewing the evidence in the light most favorable to Wright and drawing all reasonable inferences in his favor, a reasonable jury could find that Wright held at least a mixed motive for his vaccine refusal: a bona fide religious belief alongside political beliefs and personal preference. Wright’s evidence demonstrates a “moral or ethical” belief in bodily autonomy and freedom to choose what to put in his body.  The fact that he gave additional reasons for his vaccine refusal does not show that his belief is “merely a preferred practice.”  Instead, it simply shows that his vaccine refusal is grounded on both religious and nonreligious reasons. Furthermore, the inquiry on this prong is not “whether [Wright’s specific] belief is a true religious tenet” of the Baptist faith, but rather whether the belief is, “in his own scheme of things, religious.” Because a plaintiff’s sincerity in espousing a religious practice “is largely a matter of individual credibility,”  Wright’s evidence would be better weighed by a jury than by the court at the summary judgment stage.

A footnote considers whether future Supreme Court opinions may exclude “purely moral or ethical beliefs” from the protection of Title VII; cf. U.S. Const. amend. I (creating some tension when guarding against both “respecting an establishment of religion” and “prohibiting the free exercise thereof”).

In the department of “things I did not know before,” I learned about the “federal enclave” doctring from Vinales v. AETC II Privatized Housing, LLC. This “enclave” arose when Texas ceded land to the federal governement for an air base, which had these consequences:

Generally, when an area in a State becomes a federal enclave, ‘only the [state] law in effect at the time of the transfer of jurisdiction continues in force’ as surrogate federal law.” “Existing state law typically does not continue in force, however, to the extent it conflicts with ‘federal policy.’” “And going forward, state law presumptively does not apply to the enclave.”

No. 24-50113 (June 27, 2025) (citations omitted).

Judge Roy Bean famously considered himself to be “The Law West of the Pecos” (right). Judge Bean would have been at home in Jones v. King, a dispute about whether certain would-be voters actually resided in remote Loving County – the least populated county in the US.

The Fifth Circuit held that presiding over the general assembly of prospective jurors—including qualifying jurors and hearing excuses or exemptions—is a judicial act protected by absolute immunity. (The plaintiffs contended that they had been unfairly treated after appearing for examination as potential jurors.) The Court emphasized that the “touchstone” of the analysis is whether the judge is “resolving disputes between parties” or “authoritatively adjudicating private rights,” and that the act of qualifying a venire and hearing excuses inherently involves the exercise of judicial discretion.A dissent saw the judge’s activity as administrative in nature. No. 23-50850, Aug. 1, 2025

Wilson v. Centene Management addressed the proper standard for determining Article III standing at the class certification stage. The Fifth Circuit held: “The class certification approach evaluates only a named plaintiff’s individual standing. The court’s determination that the named plaintiff demonstrated individual standing concludes the inquiry. Only then should the court ‘address the question whether the named plaintiffs have representative capacity, as defined by Rule 23(a), to assert the rights of others.’”

This approach contrasts with a more searching approach that would compare the injuries of the named plaintiff to those of the putative class and determine whether the named plaintiff’s harms are sufficiently analogous to those suffered by the rest of the class. The Court expressly rejected this approach as it  “prematurely and unnecessarily muddies the waters for the threshold constitutional issue of justiciability.”

The Court cautioned that “where there is ‘substantial overlap between’ standing and the merits of a plaintiff’s claim, ‘the better course’ is to treat the attack on standing ‘as an attack on the merits— and therefore outside the scope of our Rule 23(f) review of class certification decisions—rather than as a question of standing.’” No. 24-50044, July 17, 2025

In Association of Club Executives v. Paxton, a group of plaintiffs associated with the adult entertainment industry (who have had an unfortunate record in the courts in recent years), the Fifth Circuit addressed the constitutionality of a Texas law that raises the minimum employment age at sexually oriented businesses (SOBs) from 18 to 21.

The court upheld the law, finding that it withstands First Amendment scrutiny because it is designed to serve a substantial government interest—namely, the prevention of sex trafficking and sexual exploitation—and does not restrict more speech than necessary. Texas provided sufficient evidence linking SOBs to sex trafficking and that the law was a reasonable measure to address these secondary effects. And, the law does not substantially restrict protected speech, as it leaves SOBs with a “reasonable opportunity to open and operate” their businesses and does not meaningfully limit the expressive conduct of their employees based on age. No. 24-50434, Jul. 14, 2025

The Fifth Circuit granted mandamus relief, in a venue-transfer dispute, requiring a “do-over” by the trial court that fully evaluated all eight relevant factors. In re Media Matters, No. 25-10630 (July 15, 2025). The underlying case is between X (formerly Twitter) and a nonprofit that was critical of how X delivered ads to users.

In Students for Fair Admissions, Inc. v. UT-Austin, the Fifth Circuit addressed whether challenges to both the university’s old and revised admissions policies were moot. The Court held that claims related to the university’s pre-2023 admissions policy, which explicitly considered race, were moot because the policy had been formally repealed and replaced in response to the Supreme Court’s Harvard decision.

However, the Court found that the controversy over the university’s revised, post-2023 admissions policy remained live and was not moot. The new policy, while facially race-neutral, still allowed admissions officers access to applicants’ racial data during the admissions process, which the plaintiff alleged could enable continued discrimination. The court emphasized that “as long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot,” and concluded that the plaintiff had not yet secured all the relief it sought. No. 24-50631, July 11, 2025.

In Reed v. Marshall, the Fifth Circuit addressed whether joint owners of a trademark can sue each other for infringement or dilution under the Lanham Act. The Court held that the Lanham Act does not authorize such claims between co-owners of a trademark.

The Court explained that trademark law is designed to protect owners and consumers from third-party infringers, not to resolve disputes among co-owners Joint ownership of a mark gives each owner a complete interest in the mark, allowing them to use it as they please unless a separate contractual agreement says otherwise. The statutory language of the Lanham Act, according to the court, “makes this cause exclusive to the registrant of the trademark,” and does not contemplate claims by one co-owner against another. No. 24-20198, July 2, 2025

United States v. Texas considers, inter alia, whether an organization that provides legal services to immigrants has standing to challenge a Texas law about illegal entry into the country. The panel majority finds standing; a dissent notes:

“Plaintiffs allege only—just as the doctors did in [FDA v. Alliance for Hippocratic Medicine]—that they want to serve clients who are impacted by the law. That makes the organizations’ standing every bit as impermissible as it was in Alliance.”

No. 24-50149 (July 3, 2025).

Class-action litigation has drawn considerable attention after Trump v. CASA limited the use of nationwide injunctions. Another tool for expanding the impact of a given case is collateral estoppel, and that’s the subject of this article that I recently published in Salon.

In Texas Corn Producers v. U.S. EPA, the EPA disputed the plaintiffs’ standing; among its arguments it “counters that automakers might respond to the inflated CAFE stringency in four different ways—not all of which decrease gasoline demand. Thus, EPA contends, the petitioners’ alleged injury is too speculative to support Article III standing.”

The Fifth Circuit expressed skepticism, noting that this argument was not consistent with the purpose of the challenged regulation in the first instance: “But EPA misses the forest for the trees. Indeed, reducing fuel demand is the core purpose of the CAFE standards. As NHTSA explained in its latest CAFE rulemaking, the current standards are estimated to ‘reduce gasoline consumption by 64 billion gallons relative to reference baseline levels for passenger cars and light trucks … through calendar year 2050.’ If EPA additionally increases CAFE stringency through the backdoor, then gasoline consumption will predictably fall even further.” No. 24-60209 (June 24, 2025) (footnote omitted, emphasis in original).

In Weslease 2018 Operating, LP v. Behan, the Fifth Circuit addressed whether appeals challenging a district court’s turnover and enforcement orders remained live after the court appointed a receiver to take possession of the judgment debtors’ property. The Court held that these appeals were rendered moot by the subsequent receivership order, which “explicitly ‘supersedes and/or amends all portions of the court’s prior orders directing the turnover of assets of any Receivership Parties to Weslease.’”

As a result, the property at issue was no longer in the hands of the original parties but under the exclusive control of the receiver, eliminating any actual controversy that the appellate court could resolve–put another way, the case was now controlled by the principle that mootness arises when “intervening circumstances make it impossible for the court to ‘grant any effectual relief.” No.24-10246, June 5, 2025.

A prescient Fifth Circuit panel opinion, perceiving the mismatch between somewhat-dated First Amendment precedent and the realities of modern-day adult entertainment, was affirmed on the last day of the Supreme Court term, albeit by using a different level of scrutiny. Free Speech Coalition, Inc. v. Paxton, No. 23-1122 (U.S. June 27, 2025). Texas’s age-verification laws for access to adult sites will stand; interest in proxy server technology will likely increase substantially.

Last term, the Supreme Court reversed a Fifth Circuit opinion that held the CFPB’s structure violated the Constitution because it was “double insulated” from the annual appropriations process.

The unfortunate track record of “double” arguments continued in this term, when the Supreme Court reversed an en banc Fifth Circuit opinion holding that the FCC’s collection of univeral-service fees amounted to impermissible “double-layered delegation” of Congressional power. The Supreme Court reasoned:

The court’s analogy and associated logic do not work. In Free Enterprise Fund, each of the two layers of for-cause protection limited the same thing—the President’s power to  remove executive officers. And when combined, each compounded the other’s effect, so that the President was left with no real authority. Or otherwise said, the two layers of restrictions operated on a single axis with the one exacerbating (we thought exponentially) the other. But that reasoning has no bearing here. A law violates the traditional (or call it, for comparison’s sake, “public”) nondelegation doctrine when it authorizes an agency to legislate. And a law—whether a statute or, as here, a regulation—violates the private nondelegation doctrine when it allows non-governmental entities to govern. Those doctrines do not operate on the same axis (save if it is defined impossibly broadly). So a measure implicating (but not violating) one does not compound a measure implicating (but not violating) the other, in a way that pushes the combination over a constitutional line. “Two wrong claims do not make one that is right.”

No. 24-354 (U.S. June 27, 2025) (citations omitted).

A toilet became clogged at a Walgreens store, after which an employee gave a customer a plunger to clear the clog. An accident happened later. The Fifth Circuit agreed that the customer was not an agent of Walgreens:

“Gonzalez’s only evidence of an agency relationship is that Perez gave the customer a plunger after Alexander granted Perez permission to do so, and that the customer apparently attempted to unclog the toilet with that plunger. While the customer arguably acted on Walgreens’s behalf, ‘a party is not an agent simply because he acts on behalf of another.’ … [W]hile Walgreens’s permitting the customer to plunge the toilet on its behalf was no doubt imprudent, that does not answer the agency question. ‘Authorization to act and control of the action are the two essential elements of agency.'”

This unusual fact pattern provides an excellent illustration of why proof of agency requires proof of a right to control. Gonzales v. Walgreen Co., No. 24-50403 (June 16, 2025).

While the long-running friction between the Fifth Circuit and U.S. Supreme Court about standing did not produce cert grants on the topic this term (after last year’s 9-0 reversal on standing in theg mifepristone litigation), three recent Supreme Court reviews of Fifth Circuit opinions involve similar topics, with mixed results:

1. The Supreme Court held that the Fifth Circuit erred by hearing a challenge to a Nuclear Regulatory Commission decision about a waste facility, when the challenger – the State of Texas – had not been a party to the agency proceeding. NRC v. Texas, No. 23-1300 (U.S. June 18, 2025).
2. In EPA v. Calumet, the Supreme Court held that the Fifth Circuit erred because challenges to the EPA’s denials of small-refinery exemption petitions under the Clean Air Act belong only in the D.C. Circuit. While each such denial is “only locally or regionally applicable” because it applies to a specific refinery, they fall within the statute’s “nationwide scope or effect” exception when they are “based on a determination of nationwide scope or effect.” No. 23-1229 (U.S. June 18, 2025); cf. Oklahoma v. EPA, No. 23-1067 (U.S. June 18, 2025) (holding that challenges to state-specific emission plans  belonged in a regional circuit, not the D.C. Circuit, because they were “locally or regionally applicable action”).
3. And in FDA v. R.J. Reynolds, the Supreme Court affirmed the Fifth Circuit’s venue decision about a retailer’s challenge to the FDA’s denial of a permit about a “vaping” product. he FDA argued that only the manufacturer (the applicant) was “adversely affected” and thus eligible to seek judicial review, and that the case should be dismissed or transferred to a different circuit. The Fifth Circuit denied the FDA’s motion and the Supreme Court agreed, olding that retailers who would sell a new tobacco product but for the FDA’s denial are “adversely affected” and may seek judicial review under the TCA. No. 23-1187 (June 20, 2025).

Within the last month, area courts have reached the following holdings:

• in Ethridge v. Samsung, a Fifth Circuit panel majority found that a manufacturer of batteries was subject to jurisdiction in Texas (over a dissent that shares common ground with the supreme court opinion cited below); No. 23-40094 (5th Cir. May 14, 2025).
• in BRP-Rotax v. Shaik, the Texas Supreme Court found that a manufacturer of aircraft engines was not subject to jurisdiction in Texas, because it lacked “an intent or purpose to serve the Texas market.” No. 23-0756 (Tex. June 20, 2025); and
• in Western Trails Charters and Tours, LLC v. Provance, the Dallas Court of Appeals held that an out-of-state bus company purposely availed itself of Texas by entering an “Interline Agreement” with Greyhound, but the “operative facts” of the claims did not arise from those contacts. No. 05-24-01089-CV (Tex. App.–Dallas May 29, 2025) (mem. op.).

All of these opinions are thoughtful and carefully reasoned. But Justice Busby’s concurrence in the Rotax case makes a powerful, big-picture point about this area of law – especially in “stream of commerce” cases, the International Shoe framework is complex, confusing, and remains substantially unsettled after decades of efforts to clarify it. He recommends an “originalist” approach, which may or may not be an improvement in terms of the results reached, but has much to commend it as a long-needed source of certainty in this significant area of commercial law.

Accurately applying the present state of the law, a Fifth Circuit panel in Roake v. Brumley affirmed a preliminary injunction against a Louisiana law requiring display of the Ten Commandments in public-school classrooms. It remains to be seen whether the Supreme Court will change the state of the controlling law. No. 24-30706 (June 20, 2025).

Wheatfall v. HEB reminds, as to actions to confirm arbitration awards, that: “After [the 2022 Supreme Court opinion in Badgerow], Courts may not “look through” a Section 9 and 10 [Federal Arbitration Act] action to establish federal question jurisdiction based on the underlying dispute. Because Wheatfall’s complaint does not raise a federal question on its face, the district court lacked subject matter jurisdiction.”

The opinion drops an intriguing footnote: “Because Wheatfall filed a new action in state court rather than reinstating the original action in federal court, we decline to address the “jurisdictional anchor” theory of continuing jurisdiction,” citing authority from the Fourth and Seventh Circuits – a theory that the court in which an action is filed and arbitration is then ordered continues to have jurisdiction through confirmation. No. 24-20257 (June 18, 2025).

“We … join the other circuits in holding that consumer reporting agencies are not
required to investigate the legal validity of disputed debts under the FCRA.” Reyes v. Equifax, No. 24-40415 (June 13, 2025).

In the Dallas-area state court of appeals, an unfortunate event involving citation to “hallucinated” case authority ended with this sanctions order. Three lessons can be learned:

1. Avoid using Gen AI to do serious case research. There’s nothing wrong with asking it research questions to get ideas, and that can be quite helpful as part of an overall use of Gen AI to help write — so long as you remember that every citation it returns has to be checked for accuracy. Gen AI programs can look like databases, and they can act like databases, but Gen AI programs are not databases.
2. If it’s too good to be true, it is. The problem in this case arose from a hallucinated Texas Supreme Court case from the late 19th Century that involved materially similar facts. If that was a Westlaw search result, it would require double-checking because it’s just so unlikely. The best “tell” that Gen AI is hallucinating is that it’s giving you exactly what you want to hear.
3. Don’t lie behind the log. I don’t know all the facts of this case, but the order says that the appellant’s counsel did not take prompt action when the problem with the hallucinated citations was first brought to light. If something has been cited in error, get out in front of the error before your opponent and the court has to spend needless time and energy helping rectify it.

Today I did my yearly “Fifth and Fifth” update, on cases of interest to commercial litigators from the Fifth Circuit and Fifth District. This is a printout of my PowerPoint. In particulary, it was interesting to see how those two court are dealing with the Supreme Court’s recalibration of personal jurisdiction in the 2021 Ford Motor case.

In Morrow v. Jones, the Fifth Circuit addressed whether an appellate court may consider a forfeited issue—specifically, the failure to provide class-wide notice of a motion for attorney fees as required by Fed. R. Civ. P. 23(h). The panel emphasized that it may address a forfeited issue if it “involves a pure question of law, and our refusal to address it would result in a miscarriage of justice.”

Here, the Court held that declining to address the lack of notice would “unjustly deprive class members of the opportunity to object to the fee motion—an opportunity to which they are entitled by statute.” Given the unique context of class actions and the court’s independent obligation to protect class interests, the panel exercised its discretion to reach the forfeited issue, holding that the district court’s failure to provide notice was an abuse of discretion. No. 23-40546, Jun. 10, 2025

A complicated bankruptcy proceeding led to a straightforward holding: “Courts cannot award value under Section 550(a) [the preferential-transfer statute] when the estate has recovered its transferred property in kind” elsewhere in the plan. Ad Hoc Group of Senior Secured Noteholders v Del. Trust Co. (In re Sanchez Energy Corp.), No. 23-20557 (May 30, 2025).

In Carter v. Local 556, the Fifth Circuit reversed (among other matters) a contempt order that required a party’s counsel to attend “religious liberty training,” reasoning:

Courts are tasked with resolving limited questions and administering justice to the parties before them. United States v. Texas, 599 U.S. 670, 693–94 (2023) (Gorsuch, J., concurring) (“This tracks the founding-era understanding that courts render a judgment or decree upon the rights of the litigants . . . [and] ensures that federal courts respect the limits of their Article III authority to decide cases and controversies ….” (citations omitted) (cleaned up)). But when a court’s contempt sanction in a civil matter is both overbroad in scope and undoubtedly punitive in nature, the judiciary risks appearing contemptuous like the contemnor. In this civil case, the sanction plainly exceeded remedial bounds and sought to punish Southwest’s attorneys through a directive that did little to coerce the airline’s compliance with the district court’s judgment.

No. 23-10536 (May 8, 2025).

My thoughtful friend Arturo Ayala recently wrote this informative short article as to when partial supersedeas bonds may be allowed.

The once-obscure Court of International Trade – once an Article I tribunal, but “promoted” to Article III status in 1956 – took issue with the legal basis for many of the Trump Administration’s tariffs.

Specifically, in V.O.S. Selections, Inc. v. United States, that court held that the International Emergency Economic Powers Act’s authorization for the President to “regulate . . . importation” does not confer unbounded tariff authority: “[T]his court reads ‘regulate . . . importation’ to provide more limited authority so as to avoid constitutional infirmities and maintain the ‘separate and distinct exercise of the different powers of government’ that is ‘essential to the preservation of liberty.'”

The opinion went on to distinguish between the President’s emergency powers and more narrowly tailored statutory authorities, such as those found in the Trade Act of 1974, which specifically limit the President’s ability to impose tariffs in response to trade deficits or other economic concerns. Nos. 25-00066 & 25-00077, May 28, 2025

In Deep South Center of Environmental Justice v. EPA, the Fifth Circuit addressed the requirements for organizational standing and the limits of remote injury, implementing the Supreme Court’s recent decision in FDA v. Alliance for Hippocratic Medicine as follows:

• An organization cannot establish standing just by diverting resources to oppose a government action or by incurring costs for advocacy in response to that action: “An organizational plaintiff ‘cannot spend its way into standing simply by expending money to gather information and advocate against the defendant’s action.’”
• Alliance for Hippocratic Medicine requires a “concrete and demonstrable injury to the organization’s activities,” not just a “setback to [its] abstract social interests.” Thus, direct interference with an organization’s core business activities (as in other precedent) is distinct from voluntary changes in programming or advocacy, which are not enough.
• The panel majority described the petitioners’ claims of future economic, health, property, aesthetic, and recreational injuries as resting on a multi-step chain: a party would have to apply for a permit, the state would have to issue it, a well would have to be constructed and operated, and then some mishap would have to occur that would directly harm the petitioners or their members. And even where some steps had already occurred (such as the filing of permit applications), the other ones—such as the likelihood of a well malfunctioning at a time and place and injuring a specific member—remained speculative.

A dissent concurred in the judgment but questioned the extent of the majority’s holdings about the impact of Alliance for Hippocratic Medicine. No. 24-60084, May 21, 2025.

In Little v. Llano County, , the en banc Fifth Circuit held that decisions by public libraries, about what books to include or remove from their collections, are government speech that is not subject to a First Amendment challenge. (Here is a list of the books at issue, with links to where they can be purchased.)

The majority reasoned that while the First Amendment protects individuals’ rights to receive information from other private parties, it does not create a right to demand that the government provide access to specific information or books through its libraries.

A dissent argued that the First Amendment protects the public’s right to access information and ideas in public libraries, and warned about government officials removing books from libraries because of dislike for their content: ”By eliminating the public’s right to challenge government censorship of public library books, our court’s holding becomes a Trojan horse for the government speech doctrine that fails to command a majority in its own name.” No. 23-50224 (May 23, 2025).

Speech First, Inc. v. McCall involved a First Amendment challenge to a dodgy “haratssment policy” at Texas State University, which the university argued had become moot. The Court held that the lawsuit was not moot, applying the Circuit’s three-factor test for this situation.

First, the university had not issued a binding statement of future intent not to reinstate the challenged policy, and there was “no evidence” that the university’s assurances would control future actions “during or after the tenure of the University’s present leadership.”

Second, the timing of the policy change was suspicious, as the university amended its policy only after the lawsuit was filed and in direct response to judicial pressure, rather than as a voluntary act.

Third, the university continued to defend the legality of its original policy throughout the litigation, further undermining any claim that the challenged conduct would not recur.

The court emphasized that “mere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave the defendant free to return to his old ways.” No. 23-50633, May 14, 2025.

The en banc Fifth Circuit overruled an obsolete precedent about removal, as follows:

In this case, a Texas law firm sued one of its former attorneys, Edward Festeryga, in state court, alleging that he took firm files and clients to his new practice. Seventeen days later—well within the 30-day statutory removal window—Festeryga removed the case to federal court. The district court, however, remanded the case, concluding that
Festeryga had waived his removal right by filing a motion to dismiss in state court. Bound by [In re Weaver]—and acknowledging its “erroneous premises”—a panel of this court “reluctantly” dismissed Festeryga’s appeal for lack of appellate jurisdiction. … Today, we do what only this court sitting en banc can: we correct course and “unweave Weaver.”

Abraham Watkins v. Festeryga, No. 23-20337 (May 16, 2025).

The Fifth Circuit’s “moment of threat” doctrine in police-force cases is no more after this morning’s reversal in Barnes v. Felix.

Ethridge v. Samsung presents, yet again, a close case about personal jurisdiction over an out-of-state manufacturer. The claim arose from an exploding lithium-battery; two sets of contacts were relevant:

1. “Since January 2019, Samsung has shipped 18650 batteries to Black & Decker’s Texas manufacturing facility to be incorporated into sealed power tool battery packs. For a number of years (at all times relevant to this litigation), Samsung has also shipped 18650 batteries to HP and Dell to be used as samples or for laptop repairs in their Texas service centers.”
2. “Samsung sells 18650 batteries to ‘sophisticated and qualified’ businesses, which typically use them in battery packs. Some of these battery packs end up in products that are sold to Texas consumers. Samsung contends, however, that it has no control over what happens to its 18650 batteries after it sells them to its business customers in Texas.”

The panel majority concluded that Texas jurisdiction was appropriate in light of the Supreme Court’s most recent treatment of a similar issue in its 2021 Ford Motor opinion. A dissent saw matters differently:

The unilateral choices of an individual-consumer plaintiff have not been determinative of specific jurisdiction in modern history. Instead, an unbroken string of Supreme Court cases, with a recent, narrow exception in Ford, focus on the purposeful actions of the defendant in a forum state. Here, the defendant’s forum-state activities are wholly unrelated to the plaintiff’s purchase and use of the relevant product. Therefore, because Ethridge purchased the battery for his vape pen through a channel that Samsung never authorized, the fact of his injury should not make Texas a valid forum consistent with Due Process.

No. 23-40094 (May 14, 2025). 

I recently moderated a panel at the Fifth Circuit Judicial Conference about AI and the law, and was honored to meet two energetic thinkers in that important and rapidly developing area. You can learn more about them here:

• Judge Scott Schlegel, a Louisiana appellate, who publishes a lively and thoughtful blog about AI issues. I highly recommend keeping an eye on it.
• Professor Yonathan Arbel, of the University of Alabama Law School, who recently published a thought-provoking article in the NYU Law Review about how judges can productively use large language models when interpreting contracts.

I hope you enjoy their work and follow their thought leadership on the world-changing force of generative AI technology.

A breach-of-contract suit against a governmental entity led to these holdings about how the district court handled immunity defenses:

The district court thus made two errors. First, the district court held that Texas’s state-law immunity from suit deprived it of subject matter jurisdiction. But state-created immunities do not and cannot limit the jurisdiction of federal courts. If these state-law immunities apply at all in federal court under the Erie doctrine, they must be treated as non-jurisdictional, merits-based defenses. 

The second error flows directly from the first. The district court dismissed for lack of jurisdiction—without addressing the two other bases for dismissal that really do implicate subject matter jurisdiction. State sovereign immunity and the absence of complete diversity—unlike state-law immunities—are jurisdictional defects. And either of the former two problems would require a without-prejudice jurisdictional dismissal. Such jurisdictional problems must be addressed first, before the district court considers any merits-based defenses.

Anthology, Inc. v. Tarrant County College Dist., No. 24-10630-CV (May 2, 2025).

Now that a Texas trial-court opinion has issued about deporting suspected Venezuelan gang members, the issue appears headed to the Fifth Circuit.

“Grafting ‘manifest disregard of the law’ as a basis for a losing party at arbitration to prevail under § 10(a)(4) would risk tension with Hall Street—and would run headlong into Oxford Health—by forcing us to conduct a less deferential review of a panel’s award than the FAA contemplates. Indeed, adopting [Appellant’s] reading essentially would rewrite the question a judge must ask from ‘whether the arbitrators construed the contract at all’ to ‘whether they construed it correctly.'” No. 24-10833 (Apr. 28, 2025).

Providing a counterpoint to another recent case about contractual conditions, in UniWell Labs v. Frain Indus., the Fifth Circuit an invoice that detailed payment terms and said that “[l]ead time is 10 weeks from receipt of deposit payment, signed lease agreement[,] and testing materials ….”

Despite UniWell making the required payments, it never signed the lease agreement, even after multiple requests from Frain. Accordingly, “UniWell’s entire breach-of-contract claim against Frain, predicated on the lease agreement, fails because UniWell did not sign any lease agreement. There was thus no enforceable lease agreement between the parties.” No. 24-10204 (Apr. 14, 2025).

In SpaceX v. NLRB, the Fifth Circuit held that the district court did not “effectively deny” SpaceX’s motion for a preliminary injunction (so interlocutory appeal under 28 U.S.C. § 1292(a)(1) was not allowed). The Court noted:

• SpaceX’s alleged harm—having to participate in an administrative teleconference—was not a “serious, perhaps irreparable, consequence,” and cited precedent that “defending charges brought by an agency does not constitute a ‘serious, perhaps irreparable, consequence’”—especially when SpaceX had previously participated in two similar teleconferences.
• SpaceX did not request expedited briefing until April 26, asking for a ruling “no later than May 2, 2024,” despite the motion being fully briefed since February 12, and then noticed its appeal just two days before its self-imposed deadline.
• SpaceX chose to make repeated challenges to a transfer order and requested its reconsideration, which also affected the timing of the injunction proceeding.

No. 24-40315, Mar. 5, 2025

The Fifth Circuit found no abuse of discretion about the appointment of a receiver in SEC v. Barton, emphasizing these aspects of the controlling three-factor test:

• Receivership was “clear[ly] necess[ary] to protect a party’s interest in property” because:
  • The investors’ property interests faced threats from the defendant’s continued dissipation of assets, market conditions, and third-party actions (such as liens, lawsuits, and foreclosures).
  • The defendant continued to spend investor funds even after the SEC filed its complaint, showing no deterrence from prior legal action.
  • The receivership allowed for active management of assets, which included operating businesses and properties requiring ongoing oversight.
  • The receivership enabled the court to stay litigation and foreclosure actions, preventing further loss of value to the receivership estate.
• Less drastic remedies, such as a monitorship or asset freeze, were inadequate because:
  • These alternatives would still allow the defendant some control over the assets, increasing the risk of further dissipation.
  • The district court had already found the defendant in contempt for violating prior requirements, indicating that a monitorship would not be effective.
  • The assets required dynamic management, which a freeze or monitorship could not provide.

Nos. 23-11237 & 24-10004 (April 17, 2025).

The issue in Equistar Chemicals, LP v. Indeck Power Equip. Co. was whether the below contract provision, coupled with another provision requiring that all notices be in writing, created a condition precedent of notice to a damages claim under a contract:

The Fifth Circuit held that no condition precedent was created:

[T]here is no conditional language connecting that notice requirement to Equistar’s ability to seek a contractual remedy. Article 8(b) does not use the words “if,” “provided that,” “on the condition that,” “prior to,” or any other similar phrase to create a condition. It also does not limit Equistar’s ability to exercise its contractual remedies. In other words, there is no link between a condition precedent (notice) and a conditioned obligation (suing for breach of warranty or contract).

No. 21-20345 (April 23, 2025).

I return to Salon today, arguing that rational-basis review presents a serious problem for the current “ad hoc” tariff program. I give a (loud) shout out to the legendary case of St. Joseph Abbey v. Castille, 712 F.3d 215 (5th Cir. 2013), in which a Lousiana regulation that barred monks from making funeral caskets was struck down under rational-basis review.

In the unlikely-named case of 8fig, Inc. v. Stepup Funny, LLC, the Fifth Circuit reaffirmed the presumption in favor of public access to judicial records, emphasizing that “sealing judicial records is … heavily disfavored.” While courts may seal records on a case-by-case, document-by-document, line-by-line basis, the burden rests on the party seeking to keep records sealed to demonstrate specific interests that outweigh the public’s right to access. Here, the parties’ general assertions of privacy and confidentiality, as well as the existence of a settlement agreement, were insufficient to overcome the presumption of openness.

The Court noted that even if confidentiality was a factor in reaching settlement, this would only weigh in favor of sealing the settlement terms themselves, not the entire judicial record. Importantly, the Court reminded that “record may not be sealed ‘merely because it could lead to a litigant’s embarrassment.'” No. 23-50890 (Apr. 18, 2025).

In Allied World Nat’l Assurance Co. v. Nisus Corp., the Fifth Circuit addressed a  limitations issue in a products-liability dispute involving damage to fire-protection sprinkler systems. The court held that the claims were time-barred under Louisiana law, which, at the relevant time, imposed a one-year prescriptive period for products-liability actions, and considered “constructive knowledge” to trigger the running of prescription.

Here, the agent responsible for property maintenance had constructive knowledge of the cause of the damage well before the one-year period preceding the filing of the lawsuit, and that knowledge was imputed to the principal. The Court rejected arguments that the agent’s inaction or the defendant’s alleged misrepresentations tolled the prescriptive period, finding that a reasonable investigation would have uncovered the relevant information in time. No. 24-30386, Apr. 18, 2025.

Don Richard was a kind and gracious gentleman who made a singular contribution to the Bar Association of the Fifth Federal Circuit, he will be greatly missed.

After affirmance of the Fifth Circuit in SEC v. Jarkesy, that Court returned to the interaction between the Seventh Amendment and the admininistrative state in AT&T Inc. v. FCC. The specific issue was whether the FCC’s  in-house enforcement procedures for imposing civil penalties violate the constitutional right to a jury trial, as clarified by Jarkesy.

The court held that the FCC’s process ran afoul of the Seventh Amendment, emphasizing that these civil penalties are “the prototypical common law remedy,” designed to punish or deter, and thus “a type of remedy at common law that could only be enforced in courts of law.” In particular, and FCC enforcement action under section 222 of the Telecommunications Act resembles a negligence action, as it centers on whether the carrier took “reasonable measures” to protect customer data, notwithstanding the technical nature of the factual situation.

The Court also rejected the FCC’s argument that the availability of a later trial in federal court—after the agency has already found liability and imposed penalties—satisfies the Seventh Amendment. In such a trial, explained the Court, the defendant cannot challenge the legal conclusions of the agency, only the factual basis, and that this structure forces companies to choose between a jury trial and the ability to challenge the legality of the order. No. 24-60223, Apr. 17, 2025. (A third judge concurred without opinion).

In the case of Wilson v. Kemper Corp. Servcs., the Fifth Circuit held that the district court erred in denying the plaintiff’s motion to remand, because the non-diverse defendant was properly joined.

The Court emphasized that under Mississippi law, the “duty to read” doctrine did not bar the plaintiff’s negligence claim against that defedndant. The Court further explained that the district court’s reliance on Maria Wilson’s affidavit, which admitted her illiteracy and inability to read the policy, was insufficient by itself to establish improper joinder, especially when the policy’s language was ambiguous and did not explicitly require the plainitff to reside in the house to be covered. No. 24-60090, Apr. 11, 2025.

State of Mississippi v. JXN Water addressed whether an order compelling the disclosure of SNAP recipient data qualifies as an appealable collateral order.

Remininding that the requirements for a collateral order are “stingent,” the Fifth Circuit found them satisfied here. The order (1) conclusively determined a disputed question, (2) resolved an important issue separate from the merits of the case, and (3) was functionally unreviewable on appeal from a final judgment. On the last point, the Court emphasized that once the confidential information of SNAP recipients is released, “no relief can make the information confidential again.” No. 24-60309, Apr. 10, 2025

The complaint recently filed by Susman Godfrey in the District of the District of Columbia about a recent executive order is a powerful work of advocacy.

Zyla Life Sciences v. Wells Pharma of Houston arose when a maker of compounded suppositories accused a competitor of butting into its business. The defense argued that the plaintiff’s state-law claim was preempted. The Fifth Circuit disagreed:

The question presented is whether a State triggers implied obstacles-and-purposes preemption when it expressly incorporates federal law into state law. The district court held yes. But as the Supreme Court held almost a century ago, “there is no conflict in terms, and no possibility of such conflict, for the state statute makes federal law its own.”

No. 23-20533, Apr. 10, 2025 (citation omitted).

The hapless plaintiff in Villarreal v. City of Laredo continues to be out of court. After winning in the Supreme Court on the viability of her First Amendment retaliation claim, the Fifth Circuit affirmed dismissal based on qualified immunity.

The majority opinion emphasized that the events in question occurred in 2017, predating a 2019 Supreme Court decision on the topic; as of 2017, the Supreme Court’s precedent held that there was no clearly established right to be free from a retaliatory arrest supported by probable cause.

A concurrence questioned whether qualified immunity should apply when the constitutional right is clear but the remedy is not, suggesting that the rationale for qualified immunity may not hold in cases where officials have ample time to make decisions, as opposed to split-second judgments.

A dissent argued that in light of the Supreme Court’s opinion, remand to the trial court for consideration in the first instance of qualified immunity was appropriate. No. 20-40359, Apr. 8, 2025.

After the Supreme Court said in no uncertain terms that litigation about deportments under the Alien Enemies Act would proceed by habeas in the place of detention, the first lawsuit was filed and this TRO resulted – inevitably headed to the Fifth Circuit.

The Supreme Court’s recent ruling in Trump v. JGG, in addition to clarifying what legal relief is available against use of the Alien Enemies Act, confirmed that venue for those challenges will likely be within the Fifth Circuit: “For ‘core habeas petitions,’ ‘jurisdiction lies in only one district: the district of confinement.’ The detainees are confined in Texas, so venue is improper in the District of Columbia.” 

In DeWolff, Boberg & Associates v. Pethick, the the Fifth Circuit held that the plaintiff’s evidence was insufficient to establish a genuine dispute of material fact about tortious interference. The record cited was an email from an employee requesting a copy of a confidential list before leaving for a competitor, along with “the allegedly suspicious timeline of the prospective clients hiring the [competitor] after [the employee] left DB&A .” This was not enough to prove that he actually possessed or used the list to interfere with DB&A’s business. No. 24-10375, Apr. 3, 2025.

The question whether an administrative agency has unfairly “changed the rules” is central in many challenges to regulations. On April 2, the Supreme Court addressed a particularly hard-fought dispute about that issue in FDA v. Wages & White Lion Investments, LLC, a case about the FDA’s denial of marketing authorization for flavored e-cigarette products.

The en banc Fifth Circuit held that the FDA acted arbitrarily and capriciously by applying different standards than those stated in its predecisional guidance documents, and by failing to review marketing plans previously deemed critical.

The Supreme Court held that the FDA’s denial orders were consistent with its predecisional guidance about scientific evidence, comparative efficacy, and device type. The Court concluded that the FDA’s guidance documents did not commit to any specific type of study, and that the FDA’s requirement for manufacturers to compare their flavored products to tobacco-flavored products was a natural consequence of its guidance. No. 23-1038 (U.S. Apr. 2, 2025).

In United States ex rel. Montcrief v. Peripheral Vascular Assocs., P.A.., the Fifth Circuit addressed two sets of claims under the False Claims Act: the “Testing Only” claims and the “Double Billing” claims.

The court affirmed the district court’s grant of partial summary judgment on the Testing Only claims, finding them actionable because the claims were factually false. Specifically, the Court noted that Peripheral Vascular Associates (PVA) billed Medicare for vascular ultrasounds using “global” CPT–4 codes, before the professional component of the ultrasounds was completed.  This meant that the services billed were not fully rendered at the time of billing, making the related claims “factually false.”

In contrast, the Court reversed summary judgment on the Double Billing, which involved patients who received visits for other purposes as well as vascular ultrasounds, with the interpretive reports for the ultrasounds sometimes finalized after billing.  The Court concluded that the CPT–4 Manual was ambiguous regarding whether separate reports were required in this situation. No. 24-50176, Mar. 28, 2025.

Venue disputes—specifically, between courts in Washington DC and those in the Fifth Circuit—are again on the horizon as a result of challenges to aggressive use of immigration-related laws by the Trump Administration.

In yesterday’s case of J.G.G. v. Trump, the D.C. Circuit denied an emergency motion to stay TROs against the use of the Alien Enemies Act to detain and remove Venezuelan citizens. No. 25-5067 (D.C. Cir. March 26, 2026). While the operative judgment of the panel comprises only a one-page order, each of the three judges wrote an opinion (two concurrences and one dissent), as follows:

• Judge Karen Henderson noted that the Act grants the President near-blanket authority to detain and deport noncitizens affiliated with a belligerent state during times of war or invasion.  However, she underscored the necessity of judicial oversight, stating, “The Alien Enemies Act sets forth ‘conditions upon which it might be invoked’ but is silent as to ‘how long the power should last when properly invoked.'”
• Judge Patricia Millett argued that the government’s position, which would allow for the summary removal of individuals without any opportunity for judicial review, was fundamentally at odds with the Constitution’s guarantee of due process.
• Judge Justin Walker’s dissent contended that the plaintiffs’ claims should have been brought in the Southern District of Texas, where they were detained, rather than in the District of Columbia.  He also argued that the district court’s orders interfered with sensitive national security operations.

The Supreme Court today reversed the Fifth Circuit’s invalidation of an ATF regulation about “ghost guns,” noting that the relevant statute applied to “any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive.”

That grant of authority is readily distinguished from last Term’s opinion in Cargill v. Garland, which involved a statute focused on a specific type of firing mechanism.

In JSW Steel (USA) Inc. v. Nucor Corp., the Fifth Circuit affirmed the dismissal of JSW Steel’s antitrust claims against Nucor, U.S. Steel, and AK Steel.

The Court held that JSW failed to plausibly allege a conspiracy in violation of the Sherman Act.  The allegations of parallel conduct by the defendants, such as their simultaneous objections to JSW’s tariff exclusion requests and their similar creditworthiness requirements, did not sufficiently suggest a preceding agreement.  The Court emphasized that “parallel conduct that could just as well be independent action” does not meet the threshold for establishing a conspiracy under the Sherman Act.

Additionally, the Court found that much of the conduct alleged by JSW was protected under the Noerr-Pennington doctrine, which shields parties from antitrust liability when petitioning the government for favorable action.  That activity included the defendants’ certifications to the Bureau of Industry and Security (BIS) and their coordination in discussing changes to the steel Section 232 exclusion process. No. 22-20149, Mar. 17, 2025

In a famous dissent from a death-penalty case, Justice Harry Blackmun wrote: “From this day forward, I no longer shall tinker with the machinery of death ….”

Others have continued such tinkering, however, leading to the macabre question presented in Hoffman v. Westcott — whether the Eighth Amendment forbids execution by “nitrogen hypoxia” sa opposed to a firing squad.

The panel majority held that this question was for the state to resolve; the dissent, for the district judge based on the preliminary-injunction record. No. 25-70006-CV (March 14, 2025).

The recent vote against en banc review in Repub. Nat’l Comm. v. Wetzel, a case about the acceptable time frame for counting mail-in ballots, produced this configuration of votes and opinions:

The en banc Fifth Circuit recently denied review of Repub. Nat’l Comm. v. Wetzel – a panel opinon in a larger tradition of conservative distaste for mail. A dissent by Judge Higginson favorably noted commentary on the panel opinion, which draws an interesting distinction among (1) the parties’ briefs; (2) amicus submissions; and (3) public commentary, whether by academics or practioners (or earnest bloggers):

We benefit from lawyer insight and criticism. Though we receive amicus curiae briefs less frequently than the Supreme Court, they provide primary opportunity for non-party lawyers to give insight, albeit with stringent requirements. It is rarer that topflight lawyers, like Unikowsky, have time to offer scholarly critique of a case neither he, nor Bernstein, was retained to handle. Chief Justice Roberts recently reminded that “public engagement with the work of the courts results in a better-informed polity and a more robust democracy.” It is for this reason that the judiciary depends on lawyers, not just as party advocates, but also for all forms of engagement with courts. “[I]nformed criticism” of court opinions from lawyers unaffiliated with the parties is in that vital tradition.

I explored the interplay between non-litigation sources of information and the party-presentation principle in this Cornell Law Review article last year.

In Golden Bear Ins. Co. v. 34th S&S, LLC, the Fifth Circuit rejected an insurer’s declaratory-judgment action about coverage.

The Court emphasized that the Declaratory Judgment Act is intended to provide “early adjudication” of legal rights before disputes ripen into violations of law or breaches of contractual duty. In this case, the alleged misconduct by Golden Bear—negligently refusing to settle a claim—had already occurred, as evidenced by the jury’s verdict exceeding the policy limit.

Therefore, Golden Bear’s could not seek a declaratory judgment  to argue retroactively that it never had a duty to settle was inappropriate. More broadly, the Court observed:  “Allowing the complaint to proceed here would ‘enable a prospective negligence action defendant to obtain a declaration of non-liability,’ which ‘is not one of the purposes of the declaratory judgment act[].'” No. 24-20332, Mar. 14, 2025.

Despite an instruction not to consider interest in determining damages, and “[a]lthough jurors are presumed to follow jury instructions, that presumption does not prevent the court from observing and acting on an obvious failure to have done so.” Therefore, in Ramsey v. Sheet Pile LLC, when it was apparent that “the jury awarded damages on the loan based on the amount owed as of the date of the verdict, not as of the date [Plaintiff] filed suit,” the proper course was to have the district court offer an appropriate remittitur to restore order to the verdict while also carrying out its obligation to calculate post-judgment interest as an issue of law. No. 23-50911 (March 3, 2025).

Ramsey v. Sheet Pile LLC presents an interesting issue about the “prior material breach” doctrine under Texas law. In that case, the issue went nowhere because it had not been raised below and did not rise to the level of plain error. The specific question, though, is the extent to which “there is a bright-line legal rule that suing under a contract prohibits a plaintiff from relying on a defendant’s prior material breach to excuse his own breach” – a question that can become complicated if a contract dispute involves both monetary issues and nondisclosure-type obligations. No. 23-50911 (March 3, 2025).

Fans of the “Emergency!” TV show will recall Rampart General Hospital (right). In Rampart Resources v. Rampart/Wurth Holding, the Fifth Circuit evaluated the likelihood of confusion between two businesses that both used the name “Rampart”:

1. Type of Mark. The strength of Rampart Resources’ arbitrary trademark was balanced by widespread third-part y usage of the key portion of the mark. This digit weighed in favor of Rampart Resources, but not heavily.
2. Similarity Between the Marks. The similarity between the marks was not substantial. The only common element was the word “Rampart,” and the overall appearance, sound, and meaning of the marks were different. This digit weighed in favor of Rampart/Wurth.
3. Similarity of the Services. There was only a minor overlap in the services provided by the parties—both operated broadly in the real estate industry, but their specific services did not substantially overlap. This digit weighed somewhat in favor of Rampart Resources.
4. Identity of the Retail Outlets and Purchasers. The court found that the retail outlets and purchasers were not sufficiently similar to cause confusion. This digit weighed in favor of Rampart/Wurth.
5. Identity of the Advertising Media Used. Both parties used word-of-mouth and online advertising but the evidence was insufficient to make this digit probative, either way.
6. Defendant’s Intent. The court found no evidence of bad intent on the part of Rampart/Wurth.  This digit was neutral.
7. Actual Confusion. The court acknowledged some evidence of actual confusion, such as misdirected phone calls and a FedEx driver’s confusion. However, it found that this evidence was not particularly weighty and did not show that any confusion swayed consumer purchases.  This digit weighed slightly in favor of Rampart Resources.
8. Degree of Care Exercised by Potential Purchasers. The court found that the sophistication of the clients and the care they exercised in making purchasing decisions weighed against a likelihood of confusion. This digit weighed in favor of Rampart/Wurth.

Overall, the Court affirmed the district court’s decision to deny a preliminary injunction. No. 24-30111 (Feb. 24, 2025).

The dispute about the “spending freeze memo” from the start of the Trump Administration continues with this preliminary injunction – of particular interest is the detailed analysis of the “voluntary cessation” doctrine in the context of mootness.

At a recent BAFFC CLE program at the Texas A&M Law School in Fort Worth, the Fifth Circuit’s able clerk Lyle Cayce presented the most recent version of his office’s “Appeal Flowchart.” It’s a top-notch reference about that Court, and a good general guide to the workinsg of all appellate courts.

The Texas Lawbook reports that DOGE has emailed at least six federal judges in Texas asking them to justify their employment, along with staff and clerks. Link is here.

In State of Texas v. Trump, the Fifth Circuit considered whether an executive order by President Biden, mandating a $15 minimum wage for federal contractors, fell within his authority under the Federal Property and Administrative Services Act (FPASA). That statute lets the President “prescribe policies and directives that the President considers necessary to carry out this subtitle,” provided that these policies are consistent with the Act’s objectives. The court found that the Executive Order’s purpose of promoting “economy and efficiency in procurement by contracting with sources that adequately compensate their workers” aligns with the FPASA’s goals, and that the minimum-wage requirement was within the scope of his discretion. No. 23-40671 (Feb. 4, 2025).

Another lawsuit challenging a substantial federal-government reduction in force encountered a justiciability problem–this time, preemption by federal labor law (even though the agencies charged with implementing those laws have their own personnel issues).

Continuing a theme seen in an earlier DOGE-related ruling, a district judge in Washington DC denied a TRO in a data-access case, observing: “The court is aware that DOGE’s unpredictable actions have resulted in considerable uncertainty and confusion for Plaintiffs and many of their agencies and residents. But the ‘possibility’ that Defendants may take actions that irreparably harm Plaintiffs ‘is not enough.'” (emphasis in original, citations omitted).

The plaintiff in Pie Development v. Pie Carrier Holdings, Inc. tried to have its pie and eat it too, encountering a res judicata bar as a result of previous litigation. Specifically, in the earlier case, the plaintiff was given leave to replead and instead elected to appeal, after which the Fifth Circuit affirmed. In this, second, case, the Court held:

After the district court dismissed the Pie I claims without prejudice, Pie Development declined the opportunity to amend its complaint in the district court and chose instead to appeal. Although we have not directly addressed the application of res judicata in these unique circumstances, our caselaw suggests that there is a final judgment on the merits in such a case. When a prior action is dismissed without prejudice and the plaintiff, declining the opportunity to amend the complaint, appeals, the dismissal without prejudice converts to a dismissal with prejudice and constitutes a final judgment on the merits for res judicata purposes.

No. 24-60155 (Feb. 3, 2025).

I make a provocative point in Salon today, suggesting that a litigant unwilling to respect judicial mandates should not expect a warm welcome from the courts.

Standing rules apply to the left and the right, as shown by the District of the District of Columbia’s recent dismissal on standing grounds of a lawsuit brought by labor unions about the “buyout program” for federal employees. The plaintiff unions had the same threshold problems that the doctors’ organizations had in the Supreme Court’s mifepristone opinion from 2024.

In National Automobile Dealers Assoc. v. FTC, the Fifth Circuit vacated the FTC’s “Combating Auto Retail Scams Trade Regulation Rule” (CARS Rule) because the FTC failed to to issue an advance notice of proposed rulemaking (ANPRM) as required by its own regulations.

The court rejected the FTC’s argument that the Dodd-Frank Act exempted it from the ANPRM requirement.  While the Dodd-Frank Act allows the FTC to use regular APA procedures for rulemaking concerning auto dealers, it does not eliminate the FTC’s internal procedural safeguards. A dissent argued that the petitioners failed to show prejudice from the lack of an ANPRM, given their extensive participation in the rulemaking process. No. 24-60013, Jan. 27, 2025

Airlines for America v. DOT addressed when additional rulemaking notice is called for because of new factual information. The Fifth Circuit concluded that the Department of Transportation (DOT) had relied on new data from a study study, to justify its rule on airline fee disclosures without providing an opportunity for public comment on this data.

This omission was material because the study supplied basic assumptions used by the DOT to estimate the net benefits of the rule, which ranged from $30 million to $254 million annually. The Court stated that the DOT’s reliance on this new data without public input constituted a “serious procedural error.” Nos. No. 24-60231 and 24-60373 (Jan. 28, 2025).

The Fifth Circuit returned to the question of standing in Airlines for America v. DOT, as to the standing of Texas to challenge the DACA program. The Court reaffirmed that Texas has standing based on a “pocketbook-injury theory,” which asserts that the presence of DACA recipients imposes significant financial burdens on the state.

Specifically, Texas argued that it incurs over $750 million annually in costs related to emergency healthcare and public education for DACA recipients. The Court stated:  “Texas has made this showing by putting forward sufficient, unrebutted evidence to support the ‘common-sense assertion’ that, absent DACA, some recipients would leave the United States.”

The Supreme Court and the Fifth Circuit have not seen eye-to-eye in a number of recent cases that present questions of standing. In this case, however, the Court concluded that these recent cases did not unequivocally overrule the Fifth Circuit’s prior holding in an earlier appeal that concluded Texas had standing to challenge DACA. No. 23-40653, Jan. 17, 2025.

Texas Bankers Association v. CFPB presents a sign of the times, with the change of Presidential administrations: “A new President was inaugurated January 20, 2025. This case had already been set to be orally argued on February 3, 2025. The morning of oral argument, CFPB notified the court that “[c]ounsel for the CFPB has been instructed” by new leadership “not to make any appearances in litigation except to seek a pause in proceedings.” Accordingly, although both sides appeared in court as scheduled, only Texas Bankers addressed the merits.” No. 24-40705 (Feb. 7, 2025). A temporary stay was then ordered to allow the CFPB to finalize its decisionmaking about the case.

Cook v. Marshall addressed the issue of citizenship of a trust for jurisdictional purposes. The Fifth Circuit noted that “traditional trusts . . . were not considered distinct legal entities at common law, and hence cannot sue or be sued in their own name.”  Under that rule, only the citizenship of the trustee parties matters for diversity purposes.  Applied here, that rule means that complete diversity existed because the trustee parties, Cook and Marshall, were citizens of different states—Louisiana and Texas, respectively. The Court referenced the Seventh Circuit’s approach in the 2018 case of Doermer v. Oxford Fin. Group, which held that “when a trustee of a traditional trust ‘files a lawsuit or is sued in her own name, her citizenship is all that matters for diversity purposes.'” No. 24-30222, Jan. 23, 2025