In DeOtte v. State of Nevada, the district court’s injunction about the contraceptive mandate in the Affordable Care Act became moot after a 2020 Supreme Court opinion. The State of Nevada, a latecomer to the case, sought vacatur of the injunction.

The Fifth Circuit summarized the applicable principles. Its “authority to vacate comes from [28 U.S.C. § 2106] that provides that an appellate court ‘may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review.'” (emphasis omitted). Under that statute:

“[V]acatur is not automatic; it is ‘equitable relief’ and must ‘take account of the public interest.’  Precedents ‘are not merely the property of private litigants and should stand unless a court concludes that the public interest would be served by a vacatur.’  A court must assess ‘the equities of the individual case’ to determine whether vacatur is proper. This consideration centers on (1) ‘whether the party seeking relief from the judgment below caused the mootness by voluntary action’; and (2) whether public interests support vacatur.”

(citations omitted). After a thorough review of Nevada’s unusual procedural position in the case, the Court found that Nevada had standing (in the language of the statute, had “lawfully brought” the appeal), and granted Nevada the requested relief of vacatur. No. 19-10754 (Dec. 17, 2021).

Reminder: “Standing to appeal a bankruptcy court order is, of necessity, quite limited. … [t]his test is an even more exacting standard than traditional constitutional standing.” Dean v. Seidel, No. 21-10468 (Dec. 7, 2021) (citations omitted).

Therefore: “Here, the order on appeal — approval of a litigation funding agreement — does not affect whether Dean’s debts will be discharged. Neither does it affect Reticulum’s related pending case in which it ‘objected to Dean’s bankruptcy discharge and to discharge of its claims against Dean.’ Dean thus does not have bankruptcy standing because he cannot show how the order approving the litigation funding agreement would directly, adversely, and financially impact him.”

Under Wyoming law, an indemnity agreement related to an oil-field injury could not be enforced; under Texas law, it could be. Applying the Restatement’s choice-of-law framework, the Fifth Circuit concluded:

1. More significant relationship. “The section 188 contacts rack up points for Wyoming. Cannon started negotiations by contacting KLX’s Wyoming office, and the parties executed the agreements in Wyoming and West Virginia. These place-of-negotiation-and-contracting contacts favor Wyoming and overwhelmingly disfavor Texas. … The only debatable section 188 contact is the principal place of business. Cannon leans on this contact, arguing that it favors Texas because the agreement was drafted by a Texas-based company. But although KLX’s principal place of business is in Texas, its Texas presence is negated by Cannon’s Wyoming domicile.”
2. Materially greater interest. “Wyoming’s interest in promoting worker safety in its oilfields is at its zenith on these facts. The underlying state court proceeding—in which a Wyoming resident was injured in Wyoming by the alleged negligence of a Wyoming oil company—implicates Wyoming’s policy with precision. Enforcing the indemnity provision would discourage what Wyoming hopes to encourage Cannon’s taking steps to avoid injuries in its oilfield operations. On the other side of the scale, Texas’s interest in this dispute is more attenuated. Its interest in enforcing the contract of one of its businesses is lessened when the contract was not negotiated, drafted, or performed within its borders.”
3. Fundamental policy. “Wyoming’s ban on oilfield indemnification is codified and voids any such agreement as being ‘against public policy.’ … Because Wyoming “has taken the unusual step of stating [the policy] explicitly” in a statute, and “will refuse to enforce an agreement” contrary to the policy even when other states connected to the agreement would enforce it, the anti-indemnity policy is a fundamental one.” (citations omitted).

Cannon Oil & Gas Servcs., Inc. v. KLX Energy Services, L.L.C, No. 21-20115 (Dec. 10, 2021).

Yes, it’s kind of a pain, and yes, it comes around every year. But you have a voice in the oft-cited “Super Lawyers” awards, and you can make it heard on the Super Lawyers’ website: Nominations are due by December 16, 2021

The district court certified a class based on a Texas statute about late fees, which says: “A landlord may not charge a tenant a late fee for failing to pay rent unless … the fee is a reasonable estimate of uncertain damages to the landlord that are incapable of precise calculation and result from late payment of rent.” 

The panel majority in Cleven v. Mid-Am. Apartments disagreed with the district court’s reading of the statute, and thus remanded: “[T]here is no requirement that a landlord engage in a process to arrive at its late fee so long as the fee is a reasonable estimate at the time of contracting of damages that are incapable of precise calculation. Therefore, the district court erred in interpreting section 92.019 and the case is remanded to the district court to determine if class certification is appropriate.”

A dissent saw matters differently: “That the plaintiffs all raised a common contention about how § 92.019 should be interpreted that is central to their claims for relief is sufficient reason for us to affirm class certification, and we do not have jurisdiction to review the district court’s partial summary judgment ruling on only the issue of liability at this stage in the litigation.” No. 18-50846 (Dec. 9, 2021).

Yes, it’s kind of a pain, and yes, it comes around every year. But you have a voice in the oft-cited “Super Lawyers” awards, and you can make it heard on the Super Lawyers’ website: Nominations are due by December 16, 2021.

The Fifth Circuit affirmed a default judgment against the Elephant Group when it “agree[d] with the district court that neither claimed defense suffices. The presentation of meritorious defenses requires ‘definite factual allegations, as opposed to mere legal conclusions.’ Legal conclusions were all that were presented.” Tango Marine v. Elephant Group, No. 21-10068 (Dec. 5, 2021) (citations omitted) (On rehearing in 2022, the Court withdrew this opinion.)

“Most of the time, to be sure, Rule 60(b) orders denying relief are final and appealable because ‘Rule 60(b) motions ordinarily are made only after the district court has disposed completely of the subject litigation.’  But this is not so when unresolved matters remain pending in the district court. Where there is no ‘effective termination[] of district-court proceedings, a denial of a Rule 60(b) motion is not final for purposes of 28 U.S.C. § 1291.” Gross v. Keen Group, No. 20-20594 (Dec. 2, 2021) (citations omitted).

“Louisiana residents can access Eastrock’s website, no less than residents of other states. But as our cases suggest, and as we now expressly hold, a defendant does not have sufficient minimum contacts with a forum state just because its website is accessible there. The defendant must also target the forum state by purposefully availing itself of the opportunity to do business in that state. And here, there is no evidence that Eastrock targets Louisiana: Eastrock has not sold a single accused product to a Louisiana resident, and it solicits no business there through targeted advertising. That ends this case.” Admar Int’l Inc. v. Eastrock LLC, No. 21-30098-CV (Nov. 19, 2021). (For reference, I think this is the current version of the website in question; the litigation involved the defendant’s alleged misuse of product images.)