“Mindful of the fundamental right to fairness in every proceeding–both in fact, and in appearance,” the Fifth Circuit reversed the outcome in a Title VII dispute, and ordered the reassignment to a new district judge on remand, when:

From the outset of these suits, the district judge’s actions evinced a prejudgment of Miller’s claims. At the beginning of the Initial Case Management Conference, the judge dismissed sua sponte Miller’s claims against TSUS and UHS, countenancing no discussion regarding the dismissal. Later in the same conference, the judge responded to the parties’ opposition to consolidating Miller’s two cases by telling Miller’s counsel, “I will get credit for closing two cases when I crush you. . . . How will that look on your record?”
And things went downhill from there. The court summarily denied Miller’s subsequent motion for reconsideration, denied Miller’s repeated requests for leave to take discovery (including depositions of material witnesses), and eventually granted summary judgment in favor of SHSU and UHD, dismissing all claims.”

Miller v. Sam Houston State, No. 19-20752 (Jan. 29, 2021).

Shah sued about the alleged monopolization of pediatric anesthesiology services in Bexar County. The Fifth Circuit looked to its discussion of market definition in Surgical Care Center of Hammond, L.C. v. Hosp. Serv. Dist. No. 1, 309 F.3d 836, 840 (5th Cir. 2002), which looked for “a showing of where people could practicably go” to obtain the services at issue. Here, Shah failed to satisfy that standard: “He did not even specify individual pediatric anesthesiologists from whom patients could practicably obtain health care services. Rather, he provided tallies, by county, of pediatric anesthesiologists in Texas that fit the anesthesiology requirements of the BHS-STAR Agreement. Moreover, as the BHS parties argue, Shah’s proposed relevant market does not encompass all interchangeable substitute products because it does not include the two non-BHS facilities that the BHS parties contend serve as viable alternatives to BHS facilities. Shah has not provided evidence or any persuasive argument to raise a genuine dispute as to either of those facilities.” Shah v. VHS San Antonio Partners LLC, No. 20-50394 (Jan. 13, 2021).

An unusual procedural path, winding through a bankruptcy proceeding, led the Fifth Circuit to review a state-court summary judgment. On the issue of the state court’s evidentiary rulings, the Court applied a federal-court approach to a standard form of Texas practice, reasoning: “The grant of these objections improperly excluded important evidence from consideration. To start, the state trial court offered no explanation as to why it granted the objections. It simply checked boxes on a form saying that the objections were sustained. Since a trial court can abuse its discretion by failing to explain the reasons for excluding evidence, the lack of a reasoned explanation weighs in favor of overturning the objections. Courts also typically consider evidence unless the objecting party can show that it could not be reduced to an admissible form at trial.” Cohen v. Gilmore, No. 19-20152 (Dec. 15, 2020) (citations omitted).

Prantil v. Arkema, No. 19-20723 (Jan. 22, 2021), involved class claims about property damage that resulted from a  chemical explosion caused by Hurricane Harvey. The Fifth Circuit vacated and remanded the trial court’s class-certification order, holding:

• “[T]he Daubert hurdle must be cleared when scientific evidence is relevant to the decision to certify”;
• The trial court’s Rule 23(b)(3) analysis fell short in its “discussion of how proof of Arkema’s conduct will affect trial”–specifically, on plaintiff-specific defensive issues about causation, injury, and damages; and
• As to injunctive relief, the order “leaves us uncertain” as to how the extent of necessary property remediation can be determined, and whether a responsive injunction can be fashioned to account for Arkema’s past remediation efforts”–especially if the injunction will rely on the analysis of the class’s experts.

The panel in Gonzalez v. CoreCivic, Inc., No. 19-50691 (Jan. 20, 2021), in the context of an interlocutory appeal certified under 28 USC § 1292, affirmed the denial of a motion to dismiss a claim based on the Trafficking Victims Protection Act of 2000. That law imposes civil liability on on e who “knowingly provides or obtains the labor or services of a person” by certain coercive means. The panel found that the text of the statute unambiguously reached the plaintiffs’ claims against a private company that operated detention facilities for ICE.

A dissent would have found that the plaintiff did not adequately state her claim under Twombly and Iqbal; in response, a concurrence argued that the concept of “party presentation” foreclosed the Court’s review of that matter. North Texas practitioners will recognize echoes of the debate among Justices about supplemental briefing from the Flakes litigation.

Louisiana bar owners contended that a state COVID restriction violated the Equal Protection Clause. The Fifth Circuit disagreed:

“Unlike AG-permitted bars whose primary purpose is to serve alcohol, AR-permitted businesses must serve more food than alcohol to meet their monthly revenue requirements. Even if the Bar Closure Order’s classifications are based solely on the premise that venues whose primary purpose and revenue are driven by alcohol sales rather than food sales are more likely to increase the spread of COVID-19, such a rationale, as described by Dr. Billioux and the Governor and credited by both district courts, is sufficiently ‘plausible’ and not ‘irrational.”’ … [T]he Bar Closure Order’s differential treatment of bars operating with AG permits is at least rationally related to reducing the spread of COVID-19 in higher-risk environments.”

Big Tyme Investments, LLC v. Edwards, No. 20-30526 (Jan. 13, 2021) (citations omitted). The panel majority and a concurrence disputed the exact import of archaic-sounding language from Jacobson v. Massachusetts, 197 U.S. 11 (1905), but did not find it to materially impact the outcome under traditional Equal Protection principles.

The appropriate “gatekeeping” procedures for FLSA cases, which involve the question whether claims are “similarly situated” and thus trigger notice obligations, was thoroughly reviewed in Swales v. KLLM Transport Services, No. 19-60847 (Jan. 12, 2021): “This case poses an issue that has been under-studied but whose importance cannot be overstated: how stringently, and how soon, district courts should enforce § 216(b)’s ‘similarly situated’ mandate. As explained above, the FLSA’s similarity requirement is something that district courts should rigorously enforce at the outset of the litigation.” In reaching this conclusion, the Fifth Circuit disapproved of the widely-cited analysis of this issue in Lusardi v. Xerox Corp., 975 F.2d 964 (3d Cir. 1992).

Echeverry v. Jazz Casino Co., LLC, No. 20-30038 (Jan.11, 2021), discussed yesterday, also reviewed the admissibility of four pieces of evidence in a personal-injury trial. The issue was the liability of the LLC that owns Harrah’s Casino in New Orleans for hiring a wildlife-removal contractor to work on its exterior landscaping (“AWR”). The Fifth Circuit found no abuse of discretion by the trial court in admitting them:

• The contractor’s “F” rating with the Better Business Bureau. “[T]he BBB evidence is not very probative of the safety and competency of AWR. Still, as we earlier discussed, it might have been properly used by jurors as evidence of the Casino’s failure to investigate AWR adequately. … The evidence of the BBB rating at least added to the jurors’ understanding that the Casino missed another of the markers that could have led to further inquiry, even if the inquiry would not have led to much of significance.”
• The contractor’s certificate of insurance. “The Casino relies on Federal Rule of Evidence 411, which makes inadmissible the existence or nonexistence of insurance for purposes of proving or disproving a party’s negligence. … Here, AWR’s lack of insurance was not admitted on the issue of AWR’s negligence but to prove the Casino’s negligence in hiring AWR. Rule 411 was not violated.”
• The Casino’s internal policies. “While [an earlier unpublished case] held that internal policies did not establish the applicable standard of care, that panel did not go so far as to say that evidence that a principal violated its internal policies is irrelevant to the question of negligence. We conclude that failure to follow internal policies can be relevant. The district court did not abuse its discretion by admitting the evidence.” (citation omitted).
• Construction-site photos. “The district court did not abuse its discretion by admitting the evidence of construction sites. [Plainitff] sought to use the evidence of construction sites that had barricades to show that there should have been barricades in place to prevent her injury. The fact that the bird-removal site did not have barricades when similar construction sites did is some evidence
  of a breach of the applicable standard of care, especially when the Casino’s expert made the comparison to construction sites.”

Echeverry v. Jazz Casino Co. illustrates a deferential review of a jury’s work in a case about a property owner’s control of construction work that caused injury. Procedurally, the case reminds that federal court does not strictly follow Texas’s Casteel approach to sufficiency review of multiple-theory cases: “This court employs a harmless-error ‘gloss,’ meaning that if we are ‘totally satisfied’ or ‘reasonably certain’ based on the focus of the evidence at trial that the jury’s verdict was not based on the theory with insufficient evidence, a new trial is unnecessary.” Substantively, the Court found sufficient evidence supported the verdict on each of the plaintiff’s three “theories of negligent hiring, operational control, and authorization of unsafe work practices.” No. 20-30038 (Jan. 11, 2021).

Taylor-Travis v. Jackson State Univ. applies the Fifth Circuit’s principles for review of alleged charge error, finding no abuse of discretion on a complicated question of causation in a discrimination case. No. 17-60856 (Jan. 6, 2020).

The complexities of the McDonnell-Douglass framework were not at issue in Lindsley v. TRT Holdings, Inc., No. 10-`10623 (Jan. 7,  2021), in which the Fifth Circuit found that the appellant established a prima facie case of sex discrimination:

It is undisputed that Lindsley was paid less than her three immediate predecessors as food and beverage director of Omni Corpus Christi. As a result, she has established a prima facie case of pay discrimination, and the district court erred in concluding otherwise.

First, it is undisputed that Lindsley was paid $4,149 less than Walker and $6,149 less than Pollard. It is also undisputed that Lindsley held the same job title at the same Omni hotel as those men. What’s more, Omni agrees that Lindsley established a prima facie case of pay discrimination as to Cornelius, who held the position directly after Pollard and Walker—and there is no evidence that the position has changed since then. This establishes a prima facie case of pay discrimination.

The district court therefore erred in concluding that Lindsley failed to establish a prima facie case because she “provide[d] no evidence that her job as Food and Beverage Director was in any way similar to Pollard and Walker’s jobs, aside from the fact that they shared the same job title.” Far from failing to show that her job was “in any way similar,” Lindsley showed that she held the same position as Walker and Pollard did, at the same hotel, just a few years after they did—and that she was paid lessthan they were. No more is needed to establish a prima facie case.

Did that recent SCOTUS opinion overrule older Circuit authority? “If a
precedent of this Court has direct application in a case, yet appears to rest on
reasons rejected in some other line of decisions, the Court of Appeals should
follow the case which directly controls, leaving to this Court the prerogative
of overruling its own decisions.” Baisley v. Int’l Assoc. of Machinists & Aerospace Workers, No. 20-50319 (Dec. 22, 2020) (quoting Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989)).

“When Amazon allows third parties to sell products on its website, is Amazon ‘placing’ products into the stream of commerce or merely ‘facilitating’ the stream? If the former, then Amazon is a ‘seller’ under Texas products-liability law and potentially liable for injuries caused by unsafe products sold on its website. But if Amazon only facilitates the stream when it hosts third-party vendors on its platform, then it is not a seller, meaning injured consumers cannot sue for alleged product defects.” The Fifth Circuit certified this important issue to the Texas Supreme Court in McMillian v. Amazon, No. 20-20108 (Dec. 18, 2020).

Practice tip: In the Court’s review of whether the issue warranted certification, it noted that both parties had agreed that there was “substantial ground for difference of opinion” in order to proceed with an interlocutory appeal under 28 U.S.C. § 1292(b).

The Twelfth Amendment says: “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” By statute, that is to occur this year on January 6. That statute also lays out a procedure for handling objections to votes. Judge Jeremy Kernodle of Tyler rejected a challenge to that process, as the process is in detailed in  Section 15 of 1887’s Electoral Count Act, stating: “Plaintiff Louie Gohmert, the United States Representative for Texas’s First Congressional District, alleges at most an institutional injury to the House of Representatives. Under well settled Supreme Court authority, that is insufficient to support standing.”  Gohmert v. Pence, No. 6:20-cv-660-JDK (E.D. Tex. Jan. 1, 2020).

A Fifth Circuit motions panel (Higginbotham, Smith, Oldham) dismissed an effort at immediate appeal: