In 2022, a venue skirmish in a contentious firerarms-manufacturing case led to a Pennsylvania district court declining to return a transferred case to the Fifth Circuit. Echoes of that skirmish can be heard in In re Space Exploration Technologies Corp., a dispute between SpaceX and the NLRB, where the following occurred:

SpaceX petitioned this court for a writ of mandamus on February 16, 2024, requesting that we direct the district court to vacate its transfer order.  Our court stayed the Southern District of Texas’s transfer order on February 19, 2024. Nevertheless, the Central District of California docketed the case four days later, on February 23, 2024, as case number 2:24-cv-1352-CBM-AGR. 

Accordingly, the Fifth Circuit directed the district court to ask the California court to return the case. The Fifth Circuit’s order points out that the California court lacks jurisdiction, since the docketing did not occur until after the stay issued. And unlike the 2022 gun case, the transferee court agreed with the Fifth Circuit, and has indicated that it will return the case to Texas when it receives the official request from the Texas trial court. No. 24-40103 (Feb. 26, 2024) (unpublished order).

The plaintiffs’ takings claim failed in Treme v. St. John the Baptist Parish Council, when the relevant mineral lease was “for a period of Three (3) years from the date Lessee procures approval to commence operations frm local, state and federal authorities, as needed ….”  The requirement of government approvals created a “suspensive condition” to the lease’s effectiveness, and “[b]ecuase they have not been obtained, the district court was correct in determining that the lease had not yet become effective.” No. 23-30084 (Feb. 16, 2024).

February 2024 has been a busy month for en banc votes. The recent vote by the full court about a stay in U.S. v. Abbott, as well as votes to deny en banc review of Baker (a takings case about police destruction of a home) and Solis (holding that a preferential-transfer claim was stated as to a Stowers-related payment) provided an unusual snapshot of the full court’s views on multiple issues at the same time.

Those votes are now supplemented by an 8-9 vote to deny review in McNeal v. LeBlanc, a panel opinion that denied qualified immunity in an “overdetention” case. The below chart summarizes those votes (a “yes” vote is for en banc review or issuance of a stay, as appropriate):

Judges Jones, Ho, and Oldham voted “yes” for review of each of these four cases. Judges Southwick, Haynes, Higginson, Douglas, and Ramirez voted “no” for review of each of these four cases.

The contract between Catalyst (a consulting firm) and CBS (an equipment-rental company), required payment of a substantial fee if CBS satisfied the contract’s requirements as to a “Transaction.” The Fifth Circuit held that the contract supplanted the “procuring cause doctrine” recognized by Texas law as a default rule for such business situations, and further held that under the contract, Catalyst had made the required showing to recover its fee. Catalyst Strategic Advisors LLC v. Three Diamond Capital SBC LLC, No. 23-20030 (Feb. 22, 2024).

Aggrieved creditors argued that a recent Supreme Court opinion, which held that section 363(b) of the Bankruptcy Code was not jurisdictional (and could thus be waived), also impacted the scope of that statute when it applied. The Fifth Circuit rejected that argument in Swiss Re v. Fieldwood Energy, stating: “We perceive no narrowing of the effect of Section 363(b) other than to clarify that a party can lose the benefit of its terms.” No. 23-20104 (Feb. 20, 2024). From there, the Court found that the creditors’ appeal was moot because a stay had not been obtained, and the issues presented did not relate to anything left open by the bankruptcy plan.

(The illustration is from DALL-E, I asked it to illustrate the bankruptcy concept of statutory mootness, and it came up with that image, for no reason that I can ascertain. I offer it to you as a good example of generative AI doing something that is both very sophisticated and very weird.)

After the Texas Supreme Court answered a certified question about an arcane Texas limitations-tolling statute, the Fifth Court applied that answer in a later case presenting the same issue, Bullock v. UT-Arlington:

“The state trial court dismissed her case on June 8, 2020, for lack of jurisdiction. The dismissal was affirmed by the state appellate court on May 20, 2021. The appellate court’s plenary power expired on July 19, 2021. Under the Texas Supreme Court’s interpretation of Section 16.064(a)(2), Plaintiff had sixty days from July 19, 2021, in which she could refile her action in a court of proper jurisdiction. Plaintiff filed this instant lawsuit on July 16, 2021, before the state appellate court’s plenary power expired and well within the sixty-day grace period.”

No. 22-10013 (Feb. 15, 2024) (citations omitted).

Shaw v. Restoration Hardware, Inc. carefully describes the unique heritage of Louisiana law, and then reached a holding well known to the common law:

“By Shaw’s own allegations, the alleged contract was conditioned on RH wanting to use the at-issue artisans to produce nonlicensed designs and the outcome of the parties’ future negotiations regarding compensation. Because the at-issue agreement left the terms of potential compensation “wide open” to future negotiation, RH and Shaw never entered into an enforceable contract.”

No. 22-30277 (Feb. 15, 2024).

The recent vote by the full court about a stay in U.S. v. Abbott, as well as votes to deny en banc review of Baker (a takings case about police destruction of a home) and Solis (holding that a preferential-transfer claim was stated as to a Stowers-related payment) provide an unusual snapshot of the full court’s views on multiple issues at the same time. The below chart summarizes those votes (a “yes” vote is for en banc review or issuance of a stay, as appropriate):

In an opinion reversing the denial of a TCPA motion to dismiss, the Texas Supreme Court made a helpful observation for the legal blogging community:

[A]nyone who appreciates lawyerly precision has probably read plenty of news stories about legal affairs that gloss over lawyerly distinctions or contain inadvertent mischaracterizations of legal or procedural concepts. These journalistic imprecisions are not to be applauded, and they certainly can mislead the average reader in some cases. But errors of law by those reporting on the law are not automatically actionable as defamation.

Polk County Publ. Co. v. Coleman, No. 22-0103 (Tex. Feb. 16, 2024).

In United States v. Abbott, Texas contends that the Rio Grande is not navigable, which allows it to place a floating barrier in the river to deter navigation. After a Fifth Circuit panel affirmed the district court’s injunction against the barrier, the Court voted to take the case en banc, after which the district court placed the underlying case on a rapid schedule. Texas sought a stay, which the en banc Court denied for a variety of reasons:

A litigation trust, created as part of a bankruptcy plan confirmation, sued Raymond James. The trust asserted claims that had been assigned to the trust by aggrieved bondholders for the bankrupt entity, who contended that they had been misled about the bonds by Raymond James. (Remarkably, $300 million in bonds were sold in connection with a facility in rural Lousiana that would have refined raw wood into specialized fuel pellets.)

In defense, Raymond James cited an indemnity agreement that it made with the debtor pre-bankruptcy. The Fifth Circuit affirmed the lower courts’ conclusion that the plan barred Raymond James from defending with that agreement. The Court said:

1. Notice. “Even though [Debtor] failed to list Raymond James as a creditor when it filed for bankruptcy, Raymond James is nevertheless subject to the confirmation plan because of its actual knowledge of the underlying proceedings.”
2. Plan. “Even if Raymond James was not subject to the plan, [Debtor] no longer exists, and neither the bondholders nor post-confirmation entity are its successors-in-interest.”

Raymond James & Assoc. v. Jalbert, No. 23-30040 (Jan. 30, 2024).

An explosion on the M/V FLAMINIA (right) led to a $200 million arbitration award, which in turn led to an action to confirm that award in New Orleans federal court. The Fifth Circuit reversed for a lack of personal jurisdiction, concluding:

• Forum. “When assessing personal jurisdiction in a confirmation action under the New York Convention, a Convention, a federal court should consider contacts related to the parties’ underlying dispute and not only contacts related to the arbitration proceeding itself. That holding aligns our court with every other circuit to address this issue.”
• Waiver. Unlike the facts of an earlier case involving a “letter of understanding,” the defendant’s LOU in tihs case said that it was “given without prejudice to any and all rights or defenses MSC, its agents or affiliates have or may have in the Proceedings.”
• Contacts. “[T]he dispute’s sole contact with the forum—the DVB’s shipping from the Port of New Orleans—did not occur as a result of MSC’s ‘own choice.’ … [The fact that the DVB was loaded onto the FLAMINIA in New Orleans was the result of “the unilateral activity” of other parties, not MSC.” (citations omitted).

No. 22-30808 (Jan. 29, 2024).

The trademark-infringement issue in Rolex Watch USA, Inc. v Beckertime, LLC turned on whether the customary “digits-of-confusion” analysis should have been augmented by additional considerations involving the refurbishment of trademarked products. The Fifh Circuit agreed with the district court’s treatment of the issue:

Champion instructs that a reseller may utilize the trademark of another, so long as it involves nothing more than a restoration to the original condition, and not a new design. In that case, “[f]ull disclosure gives themanufacturer all the protection to which he is entitled.”  Here, BeckerTime does more than recondition or repair vintage Rolex watches. As the district court found, BeckerTime produced “modified watches,” with “added diamonds,” “aftermarket bezels,” and aftermarket bracelets or straps. It found that the watches sold by BeckerTime were “materially different than those sold by Rolex.” In fact, the district court found that Rolex has never sold watches matching the descriptions provided by BeckerTime. Unlike the plugs in Champion that “are nevertheless Champion plugs and not those of another make,” BeckerTime’s watches are of another make and cannot properly be called genuine Rolex watches. … Champion’s misnomer exception properly applied to the facts of this case and the district court did not err by conducting a traditional digits of confusion analysis.

No. 22-10866 (Jan. 27, 2024) (citations omitted).