The Fifth Circuit found that the state-law question about liquor-sale permits presented by Gabriel Inv. Group v. TABC “checks every box” for certification, reasoning:

1. “The first factor—the closeness of the question and the existence of sufficient sources of state law—weighs in favor of certification. … Both parties have solid textual and structural support for their positions. Likewise, the Commission does not challenge GIG’s contention that the disputes in this case are questions of first impression in any court.”
2. “The second factor—the degree to which considerations of comity are relevant in light of the particular issue and case to be decided—similarly weighs in favor of certification. The Legislature enacted its general ban on public corporations owning or controlling package store permits in 1995, over 26 years ago. According to the parties, only two public corporations—GIG and Sarro Corp., who is not a party to this case—qualify for Grandfather Clause treatment. That may not seem like many. But when you factor in that GIG and Sarro could control up to 500 package stores between the two of them, it threatens to blow a Texas-sized hole in the careful balance that the Legislature created.” (footnotes omitted).
3. “The third factor—practical limitations on the certification process—also weighs in favor of certification. The questions that GIG asks are purely legal. And we are untroubled by any potential delay. ‘[B]y long tradition, the Texas Supreme Court graciously accepts and prioritizes certified questions from this circuit.'”

No. 21-50322 (Jan. 28, 2022).

A Texas law firm sued an Ohio firm, alleging the breach of an agreement about a substantial fee. The Fifth Circuit affirmed dismissal for lack of personal jurisdiction, crisply summarizing key Circuit precedent for commercial tort and contract claims. (To the right is 600Camp’s standard personal-jurisdiction graphic, the classic comic book hero Plastic Man).

• Tort: “Walden and Sangha largely resolve this issue. Danziger alleges in support of its fraud and unjust enrichment claims (1) that Morgan Verkamp failed to disclose its representation of Epp when responding to an unsolicited email from Danziger about the Epp case and (2) that Morgan Verkamp continued not to disclose its representation of Epp while the two firms worked together on other cases. Danziger alleges in support of its tortious interference with prospective contractual relations claim that Morgan Verkamp emailed Epp (who is not alleged to have been in Texas) to convince him not to formalize his relationship with Danziger. Thus, although Morgan Verkamp’s allegedly tortious conduct may have affected Danziger in Texas, none of this conduct occurred in Texas.”
• Contract: “Danziger alleges in support of its breach of contract claim that: (1) Epp reached out to Danziger about a potential qui tam matter; (2) Danziger arranged two conference calls between itself, Morgan Verkamp, and Epp; (3) Danziger and Morgan Verkamp agreed telephonically to split any fees they received from their work on the Epp matter; (4) the parties exchanged several emails with each other and Epp regarding their potential representation of Epp; and (5) Morgan Verkamp ultimately represented Epp in a Pennsylvania lawsuit but refused to split the fees that it received from the case.  Thus, unlike Electrosource, this case does not nvolve ‘wide reaching contacts and contemplated future consequences within the forum state.’ And unlike Central Freight, ‘[t]he plaintiff’s Texas location’ was not
  ‘strategically advantageous to the defendant …, suggesting that the defendant had purposefully availed itself of doing business in Texas.’ Rather, as in Trois, ‘[t]he only alleged Texas contacts related to contract formation or breach are [the defendant’s] conference calls negotiating the agreement while [the plaintiff] was in Texas.’ … And like Holt Oil, the defendant’s ‘communications to Texas rested on nothing but “he mere fortuity that [the plaintiff] happens to be a resident of the forum.”‘ As we held in Moncrief Oil, ‘mere fortuity that one company
  happens to be a Texas resident … is not enough to confer jurisdiction.'”

Danziger & De Llano, LLP v. Morgan Verkamp, LLC, No. 21-20186 (Jan. 27, 2022) (citations omitted, emphasis in original).

Echoing the Texas Supreme Court’s skepticism about Wikipedia as a source in D Magazine Partners, LP v. Rosenthal, 529 S.W.3d 429 (Tex. 2017), the Fifth Circuit held that the Wayback Machine was not a proper subject of judicial notice “because a private internet archive falls short of being a source whose accuracy cannot reasonably be questioned as required by [Fed. R. Evid.] 201.” The Court offered suggestions for how Wayback Machine information could be authenticated, and noted a page on the Wayback site that discusses the use of its material as court evidence. Weinhoffer v. Davie Shoring Inc., No. 20-30568 (Jan. 20, 2022).

The Marys, landowners in Bienville Parish, Louisiana, complained that a pipeline had exceeded the scope of a servitude over their land, and sought disgorgement of the pipeline’s profits. The Fifth Circuit reviewed “the concepts of accession and fruits under Louisiana property law.” Unfortunately for the Marys, while they had an ownership interest in the intrusive pipeline by “accession,” it was also the case that: “[T]he gas at issue here was not taken from [their] land. It was produced from the Pedro Well, located on the neighbor’s land.” Accordingly, the “gas is not a fruit; it is a product,” and disgorgement was not an available remedy. Mary v. QEP Energy Co., No. 21-30195 (Jan. 18, 2022).

By popular demand, the nationally respected jury consultant Jason Bloom returns to the “Coale Mind” podcast after his insightful interview last year about the restart of jury trials after the 2020 quarantines. In this new 2022 episode, he discusses his insights from the continued return of jury trials.

Jason describes how, across the country, prospective jurors are more eager to be selected and serve on juries than ever before, reflecting a national mood that wants to reassert control over government after many months of uncertainty and frustration. Relatedly, jury deliberations are emphasizing a theme of “accountability”–examining which party to a case has demonstrated responsibility for its actions and decisions.

Obviously important for trial lawyers, Jason’s insights are also critical to understanding America’s political dialogue as society continues to reawaken after the COVID pandemic. Whether acting as jurors, voters, or customers, decisionmakers bring very specific interests and desires to 2022 that must be understood and accommodated to make effective policy.

A high-profile case about a child’s gruesome accident produced considerable media coverage, but the insurer’s awareness of that coverage did not satisfy the insurance policy’s “claim” requirement: “The fact that [the insured] became aware of media reports about Braylon’s injuries and sent those reports to Evanston, which in turn opened an internal ‘Claim/Occurrence’ file and monitored further developments, does not substitute for the Jordans actually making a timely claim against M&O. Their failure to do so is fatal to their assertion of coverage.” Jordan v. Evanston Ins. Co., No. 20-60716 (Jan. 17, 2022).

An unexpected cameo by William Butler Yeats . . .

. . . set the tone for an issue of ancillary jurisdiction, and a holding that when a case is dismissed per a settlement, the district court may keep jurisdiction to enforce that settlement — and no more:

“When the parties settle their dispute and seek dismissal, the court may choose to treat the parties’ settlement as part of its dismissal order, either by retaining jurisdiction to enforce the settlement or by directly integrating the settlement into the dismissal order. If the court does that, breaching the settlement would violate the court’s order, and ancillary jurisdiction to enforce the agreement would therefore exist.’ [” Kokkonen v. Guardian Life, 511 U.S. 375, 381 (1994)].

…

But the power to enforce a settlement is just that. It’s not a blank check. It doesn’t authorize the district court to reach new issues or issues that only relate to the settlement. The court may decide ‘whether and under what terms’ to enforce the settlement, but it may go no further without an
independent basis for jurisdiction. Wise v. Wilkie, 955 F.3d 430, 436 (5th Cir. 2020) (cleaned up)).”

Vikas WSP, Ltd. v. Economy Mud Prods. Co., No. 20-20309 (Jan. 10, 2022).

Key aspects of an asbestos-exposure case presented genuine issues of material fact, rather than impermissible speculation, and made summary judgment inappropriate:

• Potential exposure to airborne material. “[T]he MDL court accepted that Williams worked, for some amount of time, in a building that had asbestos, and expert testimony indicates the asbestos was deteriorating and becoming airborne during his tenure. An inference taken in favor of the non-moving party would be that Williams, who for some amount of time had to breathe in the spaces where asbestos was deteriorating, was exposed to this airborne asbestos. The MDL court, though, found that there was ‘no evidence that [Williams] was ever exposed to respirable asbestos dust at any location in the facility'” (the Court also noted expert testimony on this point);
• Location at a key time. “[I]n a summary judgment order rendered that same day regarding another defendant, the MDL court relied on evidence that Williams saw individuals in moon suits to assume he was present during the asbestos remediation. Just the opposite seems to have been inferred here, as the MDL court in Boeing’s summary judgment order stated that there was ‘no evidence that [Williams] was working nearby (or in that building at all) when that remediation work was performed”;
• Excluding alternative possible locations at the key time. “[T]he MDL court also found that the evidence that Williams primarily worked in Building 350 was not ‘sufficiently specific’ to allow a jury to conclude he was exposed to asbestos during an abatement project because ‘[t]he evidence that Decedent primarily worked in Building 350 does not exclude the possibility that he was not working there during the asbestos abatement project.’ Finding to the contrary, the MDL court found, ‘would be impermissibly speculative.’ We conclude that ‘speculation’ would not be involved, only a potentially reasonable inference.”

Williams v. Boeing Co., No. 18-31158 (Jan. 18, 2022).

“Most of Sea Wasp’s appeal challenges the district court’s summary judgment rulings finding it liable under both federal and state law. Despite those rulings, however, the court ultimately entered a judgment ‘that Plaintiff takes nothing and that Plaintiff’s case against Defendant is DISMISSED WITH PREJUDICE.’ In other words, Sea Wasp won the war even if it lost some battles along the way. Because the final judgment was a full victory for Sea Wasp, it is not an aggrieved party entitled to bring a cross appeal.” Domain Protection LLC v. Sea Wasp, LLC, No. 20-40411 (Jan. 13, 2022) (emphasis added).

The Texas Lawbook reports that Judge Gregg Costa will resign his position on the Fifth Circuit this summer. Please check the Lawbook‘s page for further information.

A footnote in June Medical Services v. Phillips detailed the Fifth Circuit’s procedures for documents sealed in the trial court.

“When presented with an appeal, we routinely unseal documents that were sealed in the district court when those documents are used on appeal and there is no legal basis for sealing. Indeed, we often do this sua sponte.  In [one recent case], he district court sealed parts of the record pursuant to a stipulated protective order ‘in an effort to accommodate the defendant’s concerns about its trade secrets becoming public.’ Notwithstanding the stipulated protective order in that case, this court denied the appellant’s unopposed motion to place record excerpts under seal and ordered that the record excerpts be unsealed. . Indeed, when parties in this court seek to file documents under seal on appeal, the clerk’s office sends them a standard letter that requires them to ‘explain in particularity the necessity for sealing in this court. Counsel do not satisfy this burden by simply stating that the originating court sealed the matter, as the circumstances that justified sealing in the originating court may have changed or may not apply in an appellate proceeding.””

No. 21-30001-CV (Jan. 7, 2022) (citations omitted).

In Newman v. Cypress Env. Mgmnt.:

• Newman, a pipeline inspector, had an Employment Agreement with Cypress, a business that supplied pipeline inspectors for client projects, and that agreement had an arbitration clause;
• A Cypress affiliate entered a contract to supply services to Plains, a pipeline company
• Newman brought an FLSA action against Plains for unpaid overtime, and Plains sought to compel arbitration, citing the provision of the Newman-Cypress contract.

The Fifth Circuit held that Plains was not a third-party beneficiary of that contract and could not enforce it, noting: “First, Newman’s incorporated-by-reference Pay Letter [between the Cypress affiliate and Plains] did not clearly and fully spell out that Plains could take legal action if either Newman or Cypress breached its terms. To the extent that it named Plains at all, the Pay Letter merely list ‘Plains-Pipeline’ as the ‘Client.’ … [and] Second, the Employment Agreement itself did not clearly and fully spell out that Plains could take legal action if Newman decided to breach its other terms.” No. 21-5023 (Jan. 7, 2022) (emphasis in original).

Terry Black’s Barbecue provides outstanding Texas barbecue from its location in Dallas’s Deep Ellum neighborhood; it also experienced business interruptions from complying with various stay-at-home orders issued during the COVID-19 pandemic in 2020. The Fifth Circuit affirmed the district court’s conclusion that Terry Black’s did not have business-interruption coverage because it did not suffer a direct physical loss of property at its restaurants. The Court reasoned:

…  A “physical loss of property” cannot mean something as broad as the “loss of use of property for its intended purpose.” None of those words fall within the plain meaning of physical, loss, or property. And that phrase has an entirely different meaning from the language in the BI/EE provision. “Physical loss of property” is not synonymous with “loss of use of property for its intended purpose.”
We conclude the Texas Supreme Court would interpret a direct physical loss of property to require a tangible alteration or deprivation of property. Because the civil authority orders prohibiting dine-in services at restaurants did not tangibly alter TBB’s restaurants, and TBB having failed to allege any other tangible alteration or deprivation of its property, the policy does not provide coverage for TBB’s claimed losses.

Terry Black’s Barbecue BBQ, LLC v. State Automobile Mut. Ins. Co., No. 21-50078 (Jan. 5, 2022).

The en banc case of Cochran v. SEC, No. 19-10396 (Dec. 13, 2021), presented a difficult statutory-interpretation case, overlaid on fundamental issues about the limits of the administrative state. The majority held that the 1934 Securities Exchange Act did not divest district courts of jurisdiction over “structural constitutional claims” about SEC enforcement actions: “Cochran’s removal power claim is wholly collateral to the Exchange Act’s statutory-review scheme, is outside the SEC’s expertise, and might never receive judicial review if district court jurisdiction were precluded.” An informative concurrence examined the continuing influence of Woodrow Wilson and James Landis (the SEC’s second director) on modern thinking about the power and pervasiveness of federal administrative agencies.

The Texas Lawbook recently published a good feature by Androvett Legal Media & Marketing about the top Texas legal stories of 2021 (in which I discuss the hard-fought litigation about SB8, the new Texas abortion law). It’s worth a look while preparing for law practice in this New Year.

The defendant in United States v. Meals sought to suppress evidence obtained when Facebook monitored his inappropriate online communication.  His conviction was affirmed: “Under the private search doctrine, when a private actor finds evidence of criminal conduct after searching someone else’s person, house, papers, and effects without a warrant, the government can use the evidence, privacy expectations notwithstanding.” And while a federal statute “mandates reporting child exploitation on internet platforms to the [National Center for Missing and Exploited Children], … it neither compels nor coercively encourages internet companies to search actively for such evidence” and thus did not bring Facebook within a “government agent” exception to the private-search doctrine. No. 20-40752 (Dec. 30, 2021).

Walmart sued the U.S. government, seeking declaratory judgments on several issues about the enforcement of laws related to opioids. In the meantime, the the US brought an enforcement action against Walmart in Delaware. The panel in Walmart, Inc. v. U.S. Dep’t of Justice concluded that the Delaware action made this declaratory-judgment case unnecessary; two judges also concluded that Wal-Mart had not identified a specific type of action or decision as to which the United States had waived sovereign immunity in the Administrative Procedure Act. No. 21-40157 (Dec. 22, 2021).