Speech First, Inc. v. McCall involved a First Amendment challenge to a dodgy “haratssment policy” at Texas State University, which the university argued had become moot. The Court held that the lawsuit was not moot, applying the Circuit’s three-factor test for this situation.

First, the university had not issued a binding statement of future intent not to reinstate the challenged policy, and there was “no evidence” that the university’s assurances would control future actions “during or after the tenure of the University’s present leadership.”

Second, the timing of the policy change was suspicious, as the university amended its policy only after the lawsuit was filed and in direct response to judicial pressure, rather than as a voluntary act.

Third, the university continued to defend the legality of its original policy throughout the litigation, further undermining any claim that the challenged conduct would not recur.

The court emphasized that “mere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave the defendant free to return to his old ways.” No. 23-50633, May 14, 2025.

The en banc Fifth Circuit overruled an obsolete precedent about removal, as follows:

In this case, a Texas law firm sued one of its former attorneys, Edward Festeryga, in state court, alleging that he took firm files and clients to his new practice. Seventeen days later—well within the 30-day statutory removal window—Festeryga removed the case to federal court. The district court, however, remanded the case, concluding that
Festeryga had waived his removal right by filing a motion to dismiss in state court. Bound by [In re Weaver]—and acknowledging its “erroneous premises”—a panel of this court “reluctantly” dismissed Festeryga’s appeal for lack of appellate jurisdiction. … Today, we do what only this court sitting en banc can: we correct course and “unweave Weaver.”

Abraham Watkins v. Festeryga, No. 23-20337 (May 16, 2025).

The Fifth Circuit’s “moment of threat” doctrine in police-force cases is no more after this morning’s reversal in Barnes v. Felix.

Ethridge v. Samsung presents, yet again, a close case about personal jurisdiction over an out-of-state manufacturer. The claim arose from an exploding lithium-battery; two sets of contacts were relevant:

1. “Since January 2019, Samsung has shipped 18650 batteries to Black & Decker’s Texas manufacturing facility to be incorporated into sealed power tool battery packs. For a number of years (at all times relevant to this litigation), Samsung has also shipped 18650 batteries to HP and Dell to be used as samples or for laptop repairs in their Texas service centers.”
2. “Samsung sells 18650 batteries to ‘sophisticated and qualified’ businesses, which typically use them in battery packs. Some of these battery packs end up in products that are sold to Texas consumers. Samsung contends, however, that it has no control over what happens to its 18650 batteries after it sells them to its business customers in Texas.”

The panel majority concluded that Texas jurisdiction was appropriate in light of the Supreme Court’s most recent treatment of a similar issue in its 2021 Ford Motor opinion. A dissent saw matters differently:

The unilateral choices of an individual-consumer plaintiff have not been determinative of specific jurisdiction in modern history. Instead, an unbroken string of Supreme Court cases, with a recent, narrow exception in Ford, focus on the purposeful actions of the defendant in a forum state. Here, the defendant’s forum-state activities are wholly unrelated to the plaintiff’s purchase and use of the relevant product. Therefore, because Ethridge purchased the battery for his vape pen through a channel that Samsung never authorized, the fact of his injury should not make Texas a valid forum consistent with Due Process.

No. 23-40094 (May 14, 2025). 

I recently moderated a panel at the Fifth Circuit Judicial Conference about AI and the law, and was honored to meet two energetic thinkers in that important and rapidly developing area. You can learn more about them here:

• Judge Scott Schlegel, a Louisiana appellate, who publishes a lively and thoughtful blog about AI issues. I highly recommend keeping an eye on it.
• Professor Yonathan Arbel, of the University of Alabama Law School, who recently published a thought-provoking article in the NYU Law Review about how judges can productively use large language models when interpreting contracts.

I hope you enjoy their work and follow their thought leadership on the world-changing force of generative AI technology.

A breach-of-contract suit against a governmental entity led to these holdings about how the district court handled immunity defenses:

The district court thus made two errors. First, the district court held that Texas’s state-law immunity from suit deprived it of subject matter jurisdiction. But state-created immunities do not and cannot limit the jurisdiction of federal courts. If these state-law immunities apply at all in federal court under the Erie doctrine, they must be treated as non-jurisdictional, merits-based defenses. 

The second error flows directly from the first. The district court dismissed for lack of jurisdiction—without addressing the two other bases for dismissal that really do implicate subject matter jurisdiction. State sovereign immunity and the absence of complete diversity—unlike state-law immunities—are jurisdictional defects. And either of the former two problems would require a without-prejudice jurisdictional dismissal. Such jurisdictional problems must be addressed first, before the district court considers any merits-based defenses.

Anthology, Inc. v. Tarrant County College Dist., No. 24-10630-CV (May 2, 2025).

Now that a Texas trial-court opinion has issued about deporting suspected Venezuelan gang members, the issue appears headed to the Fifth Circuit.