Joining the ranks of purely speculative punctuation such as the interrobang, and the fairly common but obscurely named dinkus, is the “demicolon.” Someday, it may find a spot in some brief, somewhere:

In Kipp Flores Architects v. AMH Creekside Devel, Judges Willett and Oldham disagreed about what happens when a district court  erroneously uses FRCP 41(a)(2) to dismiss only some claims, rather than an entire action as the rule’s text requires. —deprives the appellate court of jurisdiction. (A third judge concurred only in the judgment reached by Judge Willett.)

Judge Willett acknowledged that “Rule 41(a) did not authorize the district court to dismiss only KFA’s remaining claims,” but held that the error did not strip the court of appellate jurisdiction. He distinguished between Rule 41(a)(1) dismissals, which are “immediately self-effectuating” by the plaintiff’s own act, and Rule 41(a)(2) dismissals, which occur by court order. Because a Rule 41(a)(2) dismissal depends on the court’s order—not on whether the rule’s requirements are met—an erroneous order is still an order, and “like any other erroneous dismissal,” it may be reversed on appeal but does not render the judgment a nullity.

In dissent, Judge Oldham argued that the court lacked jurisdiction entirely. He emphasized that Rule 41 permits dismissal of “an action”—defined as “the entire lawsuit, not just one part of it”—and that using it to dismiss individual claims is flatly unauthorized. Citing the Court’s en banc decision in Williams v. Taylor Seidenbach, he argued that “an invalid Rule 41(a) dismissal is a nullity,” meaning the claims purportedly dismissed “are still ‘pending in district court'” and no final, appealable judgment exists. He rejected the majority’s distinction between subsections (a)(1) and (a)(2), noting that district courts routinely make errors—such as improperly refusing to certify a decision under 28 U.S.C. § 1292(b)—that cannot be corrected on appeal simply because they are wrong, and “those errors did not give appellate jurisdiction.” No. 23-50750, Aug. 21, 2026.

Quadvest, L.P. v. San Jacinto River Authority arose after the Montgomery County conservation district mandated a 30% cut in groundwater use, leading to changes in water production. Smaller water utilities that were negatively affected by the law sued the River Authority that implemented the law,  alleging that the resulting water-production contract violated the Sherman Act.

Among other holdings the Fifth Circuit concluded that the contract at issue was vertical, and not horizontal, for two reasons.

First, even if the parties competed in the wholesale water market generally, the specific transaction at issue was vertical. Here, the River Authority was “acting as a supplier of an input into the production of” the plaintiff’s water services—namely, regulatory compliance services.

Second, and “more fundamentally,” the parties were not competitors at the time the agreement was made. The plaintiff had not yet entered the wholesale water market when it signed the contract, and the record showed the two parties had never competed for the same customers, even after the plaintiff later entered that market. The Court rejected the argument that potential competitor status was sufficient, and distinguished cases cited by the plaintiff by noting that it  lacked the infrastructure and capital to compete, given that water transmission lines cost on average $7.2 million per mile to construct. No. 25-20415 (5th Cir. Aug. 18, 2026).

A cert petition has been filed in Nathan v. Alamo Heights ISD, the Texas “Ten Commandments” case.

In Progressive Laboratories, Inc. v. Living Fuel, Inc., the Fifth Circuit affirmed the district court’s handling of a contract dispute over the purchase and delivery of nutritional supplements, rejecting the seller’s argument that a course of dealing between the parties transformed a series of transactions into a single “installment contract” under Texas Business and Commerce Code section 2.612(a).

The Court held that “the various agreements between the parties were separate transactions, that the mere ‘expectation of future dealings does not creat[e]’” an installment contract, and that where the contractual language is clear, course of dealing need not be considered. No. 25-10232 (July 2, 2026).

Salt and Light Energy Equipment, L.L.C. v. Origin Bancorp, Incorporated asked whether Texas’s fair notice rules for indemnity clauses — the express negligence doctrine and the conspicuousness requirement — reach a bank’s ordinary fee-shifting provision. The Fifth Circuit affirmed the summary judgment and attorney’s fee award for Origin Bank, holding that “the fair notice requirements do not apply because SNLEE did not bring a negligence claim” against the bank.

SNLEE argued that its claims under the Texas Business and Commerce Code’s good faith and ordinary care provisions were negligence-based and should have triggered fair notice. The court disagreed, noting Section 1.304 imposes a duty of good faith, not ordinary care, and that Origin sought fees only for defeating SNLEE’s good-faith and business-disparagement claims rather than for its own wrongdoing — making the arrangement, in the court’s words, “a contractual fee shifting agreement” that SNLEE did not show was unenforceable. No. 25-11272 (July 20, 2026)

Fornesa v. Enterprise Financial Group, Incorporated affirmed dismissal of a second amended complaint after the plaintiffs, in adding a new defendant alleged to be a Missouri resident, destroyed the complete diversity that had existed between themselves and the original Texas-based EFG defendants. The Court further held the district court did not abuse its discretion, on the facts of this case, in denying leave to add Federal Trade Commission Act and Magnuson-Moss Warranty Act claims. No. 25-20171 (Aug. 14, 2026).

In Adler v. Energy Debt Holdings, the Fifth Circuit affirmed dismissal of a bankruptcy debtor’s suit to invalidate a competing lienholder’s note, holding his claim was barred by the terms of a cash-collateral order.

Judge Willett’s concurrence questioned the basis for the  bankruptcy court’s  decision – judicial estoppel – arguing that the doctrine “was unknown at the Founding, surfaced in state law decades later, and then spread rapidly through the federal courts without any settled account of its source or limits.” He examined the three possible sources of the doctrine—equity, inherent power, and common law—and concluded that none supports judicial estoppel as it is currently applied across unrelated proceedings, without reliance, and sometimes to extinguish entire claims.

Judge Willett emphasized that the doctrine’s appeal—preventing litigants from playing “fast and loose” with the courts—does not itself confer judicial power, and that existing legal tools such as perjury statutes, contempt, sanctions, equitable estoppel, and preclusion already address the same misconduct with identifiable sources and defined limits. No. 25-20475, Aug. 6, 2026. (Enthusiasts of judicial estoppel my enjoy my 1999 article suggesting that it be treated as a way to enforce certain judicial admissions across separately filed lawsuits.)

In Finite Utility Consulting, L.L.C. v. Tawa Supermarket, Inc., the Fifth Circuit affirmed summary judgment against a supermarket chain’s misrepresentation claims against its former energy broker, noting:

• No justifiable reliance. “Tawa first relies on the alleged promise of a fixed all-in price. But the LOA and accompanying emails expressly described the all-in figure as an estimate and disclaimed a guaranteed supplier rate. An estimate of future
  charges is not the definite promise that promissory estoppel requires.”
• No actual reliance. “Tawa next invokes Finite’s promise to conduct a ‘full Commercial and Legal review’ of the supply agreement. Even assuming a sufficiently definite promise and deficient review, Tawa identifies no detrimental change in position attributable to it. The only comparative evidence shows that the resulting arrangement reduced Tawa’s energy costs. And Finite’s later statement about ‘appropriate reimbursement’ came after Tawa signed the supply agreement; Tawa identifies no new action it took in reliance on that statement.”

No. 25-20396 (5th Cir. Aug. 4, 2026).

In MAPP, L.L.C. v. Floor and Decor Outlets of America, Inc., the Fifth Circuit affirmed denial of a national retailer’s motion to compel arbitration against its former contractor. The panel majority noted:

1. The clause gave the retailer sole discretion to elect arbitration: “Any disputed Claims that cannot be decided by confidential negotiation or mediation may, in the sole discretion of Owner, be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then in effect.”
2. Fee awards were one-sided, given that the retailer had sole discretion to enforce the clause: “… each party shall be entitled to any attorneys’ fees incurred by such party for any motions practice required to enforce this provision by litigation, including any motions to compel arbitration, which shall be awarded by the arbitrator in the form of an interim award upon application for fees by the party enforcing this provision.
3. The contract was negotiated by a local contractor seeking a national retail chain’s business.

A concurrence would have reached the same conclusion, but because of a failure to follow the specified contractual procedure. No. 25-30536 (Aug. 6, 2026).

Candel & Partners SAS v. ExxonMobil Corporation tested how far a Section 1782 subpoena can reach when the target lacks a meaningful connection to the foreign case. Candel wanted U.S. discovery for a French proceeding against a former ExxonMobil subsidiary, but the district court quashed the subpoena, and the Fifth Circuit affirmed.

The Court accepted the district court’s assessment of the Intel factors, under which that court (a) found the French tribunal capable of ordering its own discovery, (b) concluded that Candel was trying to evade “foreign proof-gathering restrictions,” and (c) found the request too broad. No. 25-20366 (July 23, 2026).

In In re Prime Insurance Co., the Fifth Circuit granted mandamus relief to an insurer ordered to produce privileged claims-file materials, holding that, “[b]ecause the district court treated relevance as sufficient to overcome the asserted privilege, it applied an incorrect legal standard.” While the Court vacated the production orders for the time being, it recognized that the plaintiff could pursue other privilege-waiver theories on remand. No. 26-30410 (Aug. 5, 2026).