While Opulent Life Church v. City of Holly Springs turned on First Amendment religion clause issues about the legality of a zoning ordinance, it offers some general insights about preliminary injunction practice.  No. 12-60052 (Sept. 27, 2012).  Irreparable injury can potentially be shown from evidence about the likely loss of a lease, or a looming lack of building capacity (although the capacity issue in this case focused on religious practice.)  Id. at 27.  Even if evidence of injury is strong, the party opposing a preliminary injunction should have the opportunity to be heard and present evidence about the potential harm to it of an injunction so that the equities can be balanced.  Id. at 28-29.

In Cambridge Integrated Services Group v. Concentra Integrated Services, after reminding that a district court located in a state does not get deference in making an Erie guess about that state’s law, the Fifth Circuit examined the effect of a release obtained by an indemnitor for potential claims against its indemnitee.  No. 11-31032 (Sept. 26, 2012).  The Court found that the release precisely matched the terms of the indemnitor’s obligations to the indemnitee, and thus extinguished its duty to indemnify against such claims in ongoing litigation.  As to the duty to defend, however, the Court found summary judgment improper as issues about the claims “remained to be clarified through litigation.”  Id. at 10.

Judge Edith Jones has resigned as Chief Judge of the Fifth Circuit, to be succeeded by Judge Carl Stewart from Louisiana.  She will continue to serve on the Court.  This change returns the Court to a familiar balance seen with Chief Judges Henry Politz and Carolyn King, when a Democratically-appointed Chief presided over a court with a majority of Republican-appointed judges.

Earlier this year, the Fifth Circuit largely affirmed a series of rulings about governmental immunity in litigation about flood damage from Hurricane Katrina, allowing some cases to proceed and finding the government immune as to others.  On rehearing, the Court found that the “discretionary-function exemption” to the Federal Tort Claims Act created immunity even if the Flood Control Act did not.  In re Katrina Canal Breaches Litigation at 25-26 (Sept. 24, 2012) (“Our construction of the FCA leaves undisturbed the district court’s ruling on that issue.  Our application of the DFE, however, completely insulates the government from liability.”).

600camp.com celebrates its first birthday today.  A website can’t serve birthday cake, but it can share the world-famous recipe of the great New Orleans restaurant, Galatoire’s, for bread pudding.  Thanks to Lynn Tillotson and all friends and supporters.

After a 3-day hearing, a bankruptcy court certified a class for injunctive relief about foreclosure-related fees during the debtors’ bankruptcy proceedings.  Rodriguez v. Countrywide Home Loans, No. 11-40056 (Sept. 14, 2012).  The Fifth Circuit affirmed, finding that Countrywide’s acts were “generally applicable” to the “narrowly certified . . . class of approximately 125 individuals.”  Id. at 6 (distinguishing Wilborn v. Wells Fargo, 609 F.3d 748 (5th Cir. 2010)).  The Court also found that the relevant records were readily searched and that Countrywide had a consistent “practice” even though it had no formal company policy as to the fees.  Id. at 9, 10-11 (distinguishing Wal-Mart v. Dukes, 131 S. Ct. 2541 (2011)).

A consumer group sued under the Clayton Act about the market for funeral caskets, and then settled all compensatory damages with one of the defendants.  Funeral Consumers Alliance v. Service Corp. Int’l, No. 10-20719 (Sept. 13, 2012).  The Fifth Circuit held that, even after that settlement, the group had standing to proceed against the remaining defendants for attorneys fees.  Id. at 4-14.  Noting, however, that “[t]he fact that death is inevitable is not sufficient to establish a real and immediate threat of future harm,” the Court found no standing for injunctive relief.  Id. at 15, 18.  The Court also affirmed the denial of class certification, finding that the scope of the putative nationwide class fit poorly with the evidence of localized market activity for funeral services and casket sales.  Id. at 27 (distinguishing United States v. Grinnell Corp., 384 U.S. 563 (1996)).

From the second third of 2012, here are 5 commercial litigation cases from the U.S. Court of Appeals for the Fifth Circuit worth knowing:

1.  Personal jurisdiction.  “[O]ff-the-shelf, out-of-the-box” software contract did not create a “long-term interactive business relationship” with Texas.  Pervasive Software v. Lexware GMBH & Co., No. 11-50097 (5th Cir. July 20, 2012).

2.  Class certification.  No “commonality” for claims about “whether each individual qualified for the discount based on the evidence in his or her file.”  Ahmad v. Old Republic Nat’l Title Ins., No. 11-10695 (5th Cir. Aug. 13, 2012).

3.  Daubert challenges rejected.  Several issues about mechanical engineering testimony “ultimately . . . affected the weight of the evidence” rather than admissibility.  Roman v. Western Manufacturing, No. 10-31271 (5th Cir. Aug. 17, 2012)

4 and 5.  Satisfying Twombly and Iqbal 

Not enough: pleading that “invokes three potentially cognizable theories of liability,” but “does not identify by date or amount or type of service, any of the alleged bad-faith denials and delays . . . .”  Patrick v. Wal-Mart, 681 F.3d 614 (5th Cir. 2012).

Not enough: “no allegations regarding the types of businesses . . . the size . . . where they are located, or what laws and regulations they have violated.”  Bowlby v. City of Aberdeen, 681 F.3d 215 (5th Cir. 2012).

Compare: “Particularity” standard under FRCP 9(b) “require[s] a plaintiff pleading fraud to specify the statements contended to be fraudulent, identify the speaker, state when and where the statements were made, and explain why the statements were fraudulent. . . . the who, what, when, where, and how of the events at issue.”  E.g., Dorsey v. Portfolio Equities, 540 F.3d 333, 339 (5th Cir. 2008).

The unpublished case of Gibbs v. Lufkin Industries reviews the basics of anti-suit injunctions.  No. 11-50524 (Sept. 7, 2012).  The district court dismissed some of plaintiffs’ claims (including the federal ones), remanded the remaining state claims, and enjoined pursuit of those claims during appeal of the dismissal ruling.  The Fifth Circuit reversed, noting that the second court ordinarily determines the preclusive effect of a prior court’s judgment, and that simultaneous in personam proceedings do not by themselves require an anti-suit injunction.  Id. at 6.  The Court distinguished Brookshire Bros. v. Dayco Products, 2009 WL 8518382 (5th Cir. Jan. 23, 2009) as arising from the erroneous remand of the same proceeding.

The plaintiff in Coe v. Chesapeake Exploration won a $20 million judgment for breach of a contract to buy rights in the Haynesville Shale formation, against the background of a a “plummet[]” in the price of natural gas.  No. 11-41003 (Sept. 12, 2012).  The Fifth Circuit affirmed.  After review of other analogous energy cases, the Court found that  the parties’ writing had a sufficient “nucleus of description” of the property to satisfy the Statute of Frauds, even though some review of public records was required to fully identify the property from that “nucleus.”  Id. at 11-12.  The Court also found that the parties had reached an enforceable agreement and that Plaintiff had tendered performance, finding an “adjustment clause” specifying a per-acre price particularly relevant on the tender issue.  Id. at 16, 17-18.

Texas Keystone v. Prime Natural Resources began as an application for U.S. discovery in support of an English court case pursuant to 28 U.S.C. § 1782.  After review of that statute and its relationship with Fed. R. Civ. P. 26 once discovery is ordered, the Court found an abuse of discretion when the trial court granted the respondents’ Motion to Quash without a response from the party requesting discovery.  Id. at 10-13 (citing Sandsend Financial Consultants v. FLHBB, 878 F.2d 875 (5th Cir. 1989) and Wiwa v. Royal Dutch Petroleum, 392 F.2d 812 (5th Cir. 2004)).  The Court’s analysis of section 1782, intended to guide the district court on remand, also provides general background for future discovery requests in the Circuit under that statute.

Baisden v. I’m Ready Productions involved several challenges to a defense verdict in a copyright infringement case.  No. 11-20290 (Aug. 31, 2012).  Among other holdings, the Fifth Circuit reminded that “[c]onsent for an implied [nonexclusive] license may take the form of permission or lack of objection,” making the Copyright Act’s requirement of a writing inapplicable.  Id. at 9-10 (reviewing Lulirama Ltd. v. Axcess Broad. Servs., 128 F.3d 872 (5th Cir. 1997)).  The Court also reviewed a jury instruction that allegedly conflated the question of license with that of infringement — a potential problem since the burdens are different on the two points — but found that while “the question is not a model of clarity” it did not give rise to reversible error.  Id. at 19-21.