The saying “that’s all she wrote” was particularly apt for the Fifth Circuit yesterday, as the hard-fought litigation brought by abortion providers to challenge Texas’s SB8 took its final turn back to the district court:

Whole Woman’s Health v. Jackson, No. 21-50792 (April 26, 2022).

Reversing the Fifth Circuit’s opinion in City of Austin v. Reagan Nat’l Advertising, 972 F.3d 696 (5th Cir. 2020), the Supreme Court held that Austin’s use of an “on-/off-premises distinction” did not create a content restriction. The majority opinion reasoned:

A sign’s substantive message itself is irrelevant to the application of the provisions; there are no content-discriminatory classifications for political messages, ideological messages, or directional messages concerning specific events, including those sponsored by religious and nonprofit organizations. Rather, the City’s provisions distinguish based on location: A given sign is treated differently based solely on whether it is located on the same premises as the thing being discussed or not. The message on the sign matters only to the extent that it informs the sign’s relative location. The on-/off-premises distinction is therefore similar to ordinary time, place, or manner restrictions.

No. 20-1029 (U.S. April 21, 2022) (applying Reed v. Gilbert, 576 U.S. 155 (2015)).

While Solis v. Serrett deftly summarizes the Baroque case law about qualified immunity and use of force, it will be remembered for its constructive use of hyperlinks — links to the relevant video footage about the incidents in question. Particularly in this area of law, where dash and body cameras often provide critical evidence, including this material in the opinion provides helpful guidance for law enforcement officers and their counsel. No. 21-20256 (April 21, 2022) (citing, inter alia, this body camera video and this dash camera video). 

Some years ago, I unsuccessfully litigated a case about a contractual waiver of the right to remove. (The unique facts of that case were that Collin County had no federal courthouse at the time, but the Eastern District’s Plano facility was under construction.) Collin County v. Siemens Business Services, 250 F. App’x 45 (5th Cir. 2007). That case prompted me and two colleagues to write a thorough survey of the law on this topic, see Coale, Visosky & Cochrane, “Contractual Waiver of the Right to Remove to Federal Court,” 29 Rev. Litig. 327 (2010), after which I thought I had “seen it all” as to contractual waivers of removal rights.

However, I was wrong, as Dynamic CRM Recruiting Solutions LLC v. UMA Education, Inc. examines yet another turn of phrase in such a clause–what it means for an action to be “brought before” a particular tribunal. The Fifth Circuit held that “by using terminology similar to that which courts have generally construed as forbidding removal, they were waiving their right to remove an action filed in Harris County district court to federal court.” No. 21-20351 (April 19, 2022). The article now needs a pocket part.

“Plaintiffs who succeed in winning a money judgment against a state governmental entity in state court in Louisiana often find themselves in a frustrating situation. Though they have obtained a favorable judgment, they lack the means to enforce it. The Louisiana Constitution bars the seizure of public funds or property to satisfy a judgment against the state or its political subdivisions. Instead, the Legislature or the political subdivision must make a specific appropriation in order to satisfy the judgment. And since Louisiana courts lack the power to force another branch of government to make an appropriation, the prevailing plaintiff has no judicial mechanism to compel the defendant to pay. …

Finding themselves in this position, the Plaintiffs in this case, like others before them, have turned to the federal courts to force payment on their state court judgment. They claim that the Defendants’ failure to timely satisfy a state court judgment violates the Takings Clause of the Fifth
Amendment. The district court granted the Defendants’ motion to dismiss, applying long-standing precedent that there is no property right to timely payment on a judgment.”

The Fifth Circuit affirmed the dismissal. Ariyan, Inc v. Sewarage & Water Board of New Orleans, No. 21-30335 (March 21, 2022) (citations omitted); cf. generally Preston Hollow Capital v. Cottonwood Devel. Corp., 23 F.4th 550 (5th Cir. 2022) (also affirming dismissal of takings claim).

The Urban Dictionary associates the phrase “been had” with the buyer of an unintendedly green ring. The Fifth Circuit associates the phrase with the “buyer” of a JAMS arbitration:

Here the parties’ arbitration agreements called for arbitration pursuant to JAMS Comprehensive Arbitration Rules and Procedures, which included the right of JAMS to terminate the arbitration proceedings for nonpayment of fees by any party. Exercising this right, JAMS terminated the arbitration proceeding following the Fund’s nonpayment. Following the lead of our sister circuits, we conclude that arbitration ‘has been had.’ Even though the arbitration did not reach the final merits and was instead terminated because of a party’s failure to pay its JAMS fees, the parties still exercised their contractual right to arbitrate prior to judicial resolution in accordance with the terms of their agreements.

Noble Capital Fund Mgmnt. LLC v. US Capital, No. 21-50609 (April 13, 2022) (footnotes omitted) (emphasis added).

A merits panel, with a notably different makeup than the motions panel, reversed a preliminary injunction about a federal-employee vaccination requirement in Feds for Medical Freedom v. Biden, No. 22-40043 (April 7, 2022).

An antitrust case about the interrelated fees charged for the use of a debit network led to a detailed analysis of antitrust injury; in particular, the Court held as to one of the plaintiff’s claims:

Under Pulse’s theory, it doesn’t lose customers to Visa in a fair fight over per transaction fees. Rather, Pulse loses customers because Visa abuses its dominance in the debit card market. Merchants have no choice but to pay Visa’s high fixed monthly fee. They recoup that expense by routing more transactions through Visa’s network, which charges lower per-transaction fees than competitors. But Visa can achieve that only by leveraging the upfront fees to artificially deflate its per-transaction fees. We must assume this pricing structure violates the antitrust laws. When we do, the link between Pulse’s injury and Visa’s alleged anticompetitive conduct becomes plain. Pulse is squeezed out of the market because Visa exploits its dominance to impose supracompetitive prices on merchants and simultaneously undercut competitors’ per-transaction fees. That is textbook antitrust injury.

Pulse Network v. Visa, No. 18-20669 (April 5, 2022) (citation omitted, emphasis added). (The case has also drawn attention for its other holding that reassigned the matter to a different district judge on remand).

Seigler v. Wal-Mart Stores LLC presented the question whether a summary-judgment affidavit in a slip-and-fall case was an impermissible “sham” that contradicted prior deposition testimony.

The district court “identified four discrepancies between Seigler’s deposition testimony and affidavit pertaining to (1) the substance’s color, (2) its temperature and consistency, (3) its size, and (4) whether she touched the substance,” and struck the affidavit.

The Fifth Circuit disagreed, reviewing each of the claimed inconsistencies. In particular, as to the issue of  “temperature and consistency,” the Court reasoned:

” Wal-Mart argues that Seigler’s affidavit testimony that the substance was ‘cold,’ ‘congealed,’ and ‘thicken[ed] up’ contradicted her deposition testimony because Seigler testified at her deposition that (1) she had no ‘personal knowledge’ or ‘evidence’ of how long the grease had been on the floor and (2) that the substance was ‘liquid.’ However, we disagree that there was a contradiction. First, we agree with Seigler that a non lawyer deponent is not expected to understand the legal significance of the terms ‘personal knowledge’ and ‘evidence.’ Second, while the discrepancies between Seigler’s deposition and affidavit may call her credibility into question, we do not think they rise to the level of a contradiction or an inherent inconsistency, because the testimony can be reconciled.

 

Seigler described the substance as ‘some sort of greasy liquid’ at her deposition, but she was not asked questions about its temperature or consistency. Later, in her affidavit, she described the grease as ‘cold,’ ‘congealed,’ and ‘thicken[ed] up.’ These descriptions are not mutually exclusive, nor are they necessarily contradictory. In other words, it is possible that ‘some sort of greasy liquid’ could also be ‘cold,’ ‘congealed’ and ‘thicken[ed] up.’ Thus, we think the proper course in this case is to allow a jury to evaluate the testimony’s credibility.”

No. 20-11080 (April 6, 2022) (citations omitted).

In one corner, Getagadget LLC, which holds a registered trademark for “BIG BITE” for its beach toy shaped like a shark’s head. In the other, Jet Creations, Inc., which makes the Big Bite Prehistoric T-Rex Pool Float. Held, Getagadget did not establish Texas jurisdiction over its trademark-infringement claim when its counsel ordered a Big Bite Prehistoric T-Rex Pool Float:

“[I]n order to demonstrate that its trademark infringement and unfair competition claims arose out of sales that Jet directed at Texas, Getagadget was required to show that those sales were to customers who could have been potentially deceived by the alleged infringement. Getagadget’s counsel’s transactions will not suffice because counsel ‘knew exactly with whom []he was dealing and knew that defendants were not associated in any way with plaintiff.’ ‘Clearly, [Getagadget and its counsel were] not confused as to the source of the products in question.'”

Getagadget LLC v. Jet Creations, Inc., No. 19-41019 (March 30, 2022) (mem. op.).

Of general interest to court-watchers, building on a recent interview that I did with the Lincoln Project, the current episode of the “Coale Mind” podcast examines why today’s Supreme Court is like a bowl of soup, heated by two separate burners.

The first is the ongoing scrutiny over Justice Thomas’s recusal decisions in matters related to his wife’s political activity. The second, cool now but with the potential to become blazing hot, is the pending Dobbs case in which the Court could significantly limit or even overrule Roe v. Wade. 

The combined heat potentially generated by these two issues–an ethical dispute about a Justice coupled with the possibility of a uniquely controversial ruling–could present a legitimacy problem for the Court of a magnitude not seen in recent memory.

The panel majority opinion in Defense Distributed v. Bruck presents a rare — indeed, near-singular — grant of mandamus relief as to a transfer of venue (combined with a ruling about severance). The business at issue involves the growing, and controversial, field of creating firearms with 3-D printers. A dissent made a number of objections, substantive and procedural. No. 21-50327 (April 1, 2022).