In the unlikely-named case of 8fig, Inc. v. Stepup Funny, LLC, the Fifth Circuit reaffirmed the presumption in favor of public access to judicial records, emphasizing that “sealing judicial records is … heavily disfavored.” While courts may seal records on a case-by-case, document-by-document, line-by-line basis, the burden rests on the party seeking to keep records sealed to demonstrate specific interests that outweigh the public’s right to access. Here, the parties’ general assertions of privacy and confidentiality, as well as the existence of a settlement agreement, were insufficient to overcome the presumption of openness.

The Court noted that even if confidentiality was a factor in reaching settlement, this would only weigh in favor of sealing the settlement terms themselves, not the entire judicial record. Importantly, the Court reminded that “record may not be sealed ‘merely because it could lead to a litigant’s embarrassment.'” No. 23-50890 (Apr. 18, 2025).

In Allied World Nat’l Assurance Co. v. Nisus Corp., the Fifth Circuit addressed a  limitations issue in a products-liability dispute involving damage to fire-protection sprinkler systems. The court held that the claims were time-barred under Louisiana law, which, at the relevant time, imposed a one-year prescriptive period for products-liability actions, and considered “constructive knowledge” to trigger the running of prescription.

Here, the agent responsible for property maintenance had constructive knowledge of the cause of the damage well before the one-year period preceding the filing of the lawsuit, and that knowledge was imputed to the principal. The Court rejected arguments that the agent’s inaction or the defendant’s alleged misrepresentations tolled the prescriptive period, finding that a reasonable investigation would have uncovered the relevant information in time. No. 24-30386, Apr. 18, 2025.

Don Richard was a kind and gracious gentleman who made a singular contribution to the Bar Association of the Fifth Federal Circuit, he will be greatly missed.

After affirmance of the Fifth Circuit in SEC v. Jarkesy, that Court returned to the interaction between the Seventh Amendment and the admininistrative state in AT&T Inc. v. FCC. The specific issue was whether the FCC’s  in-house enforcement procedures for imposing civil penalties violate the constitutional right to a jury trial, as clarified by Jarkesy.

The court held that the FCC’s process ran afoul of the Seventh Amendment, emphasizing that these civil penalties are “the prototypical common law remedy,” designed to punish or deter, and thus “a type of remedy at common law that could only be enforced in courts of law.” In particular, and FCC enforcement action under section 222 of the Telecommunications Act resembles a negligence action, as it centers on whether the carrier took “reasonable measures” to protect customer data, notwithstanding the technical nature of the factual situation.

The Court also rejected the FCC’s argument that the availability of a later trial in federal court—after the agency has already found liability and imposed penalties—satisfies the Seventh Amendment. In such a trial, explained the Court, the defendant cannot challenge the legal conclusions of the agency, only the factual basis, and that this structure forces companies to choose between a jury trial and the ability to challenge the legality of the order. No. 24-60223, Apr. 17, 2025. (A third judge concurred without opinion).

In the case of Wilson v. Kemper Corp. Servcs., the Fifth Circuit held that the district court erred in denying the plaintiff’s motion to remand, because the non-diverse defendant was properly joined.

The Court emphasized that under Mississippi law, the “duty to read” doctrine did not bar the plaintiff’s negligence claim against that defedndant. The Court further explained that the district court’s reliance on Maria Wilson’s affidavit, which admitted her illiteracy and inability to read the policy, was insufficient by itself to establish improper joinder, especially when the policy’s language was ambiguous and did not explicitly require the plainitff to reside in the house to be covered. No. 24-60090, Apr. 11, 2025.

State of Mississippi v. JXN Water addressed whether an order compelling the disclosure of SNAP recipient data qualifies as an appealable collateral order.

Remininding that the requirements for a collateral order are “stingent,” the Fifth Circuit found them satisfied here. The order (1) conclusively determined a disputed question, (2) resolved an important issue separate from the merits of the case, and (3) was functionally unreviewable on appeal from a final judgment. On the last point, the Court emphasized that once the confidential information of SNAP recipients is released, “no relief can make the information confidential again.” No. 24-60309, Apr. 10, 2025

The complaint recently filed by Susman Godfrey in the District of the District of Columbia about a recent executive order is a powerful work of advocacy.

Zyla Life Sciences v. Wells Pharma of Houston arose when a maker of compounded suppositories accused a competitor of butting into its business. The defense argued that the plaintiff’s state-law claim was preempted. The Fifth Circuit disagreed:

The question presented is whether a State triggers implied obstacles-and-purposes preemption when it expressly incorporates federal law into state law. The district court held yes. But as the Supreme Court held almost a century ago, “there is no conflict in terms, and no possibility of such conflict, for the state statute makes federal law its own.”

No. 23-20533, Apr. 10, 2025 (citation omitted).

The hapless plaintiff in Villarreal v. City of Laredo continues to be out of court. After winning in the Supreme Court on the viability of her First Amendment retaliation claim, the Fifth Circuit affirmed dismissal based on qualified immunity.

The majority opinion emphasized that the events in question occurred in 2017, predating a 2019 Supreme Court decision on the topic; as of 2017, the Supreme Court’s precedent held that there was no clearly established right to be free from a retaliatory arrest supported by probable cause.

A concurrence questioned whether qualified immunity should apply when the constitutional right is clear but the remedy is not, suggesting that the rationale for qualified immunity may not hold in cases where officials have ample time to make decisions, as opposed to split-second judgments.

A dissent argued that in light of the Supreme Court’s opinion, remand to the trial court for consideration in the first instance of qualified immunity was appropriate. No. 20-40359, Apr. 8, 2025.

After the Supreme Court said in no uncertain terms that litigation about deportments under the Alien Enemies Act would proceed by habeas in the place of detention, the first lawsuit was filed and this TRO resulted – inevitably headed to the Fifth Circuit.

The Supreme Court’s recent ruling in Trump v. JGG, in addition to clarifying what legal relief is available against use of the Alien Enemies Act, confirmed that venue for those challenges will likely be within the Fifth Circuit: “For ‘core habeas petitions,’ ‘jurisdiction lies in only one district: the district of confinement.’ The detainees are confined in Texas, so venue is improper in the District of Columbia.” 

In DeWolff, Boberg & Associates v. Pethick, the the Fifth Circuit held that the plaintiff’s evidence was insufficient to establish a genuine dispute of material fact about tortious interference. The record cited was an email from an employee requesting a copy of a confidential list before leaving for a competitor, along with “the allegedly suspicious timeline of the prospective clients hiring the [competitor] after [the employee] left DB&A .” This was not enough to prove that he actually possessed or used the list to interfere with DB&A’s business. No. 24-10375, Apr. 3, 2025.

The question whether an administrative agency has unfairly “changed the rules” is central in many challenges to regulations. On April 2, the Supreme Court addressed a particularly hard-fought dispute about that issue in FDA v. Wages & White Lion Investments, LLC, a case about the FDA’s denial of marketing authorization for flavored e-cigarette products.

The en banc Fifth Circuit held that the FDA acted arbitrarily and capriciously by applying different standards than those stated in its predecisional guidance documents, and by failing to review marketing plans previously deemed critical.

The Supreme Court held that the FDA’s denial orders were consistent with its predecisional guidance about scientific evidence, comparative efficacy, and device type. The Court concluded that the FDA’s guidance documents did not commit to any specific type of study, and that the FDA’s requirement for manufacturers to compare their flavored products to tobacco-flavored products was a natural consequence of its guidance. No. 23-1038 (U.S. Apr. 2, 2025).