Did that recent SCOTUS opinion overrule older Circuit authority? “If a
precedent of this Court has direct application in a case, yet appears to rest on
reasons rejected in some other line of decisions, the Court of Appeals should
follow the case which directly controls, leaving to this Court the prerogative
of overruling its own decisions.” Baisley v. Int’l Assoc. of Machinists & Aerospace Workers, No. 20-50319 (Dec. 22, 2020) (quoting Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989)).

“When Amazon allows third parties to sell products on its website, is Amazon ‘placing’ products into the stream of commerce or merely ‘facilitating’ the stream? If the former, then Amazon is a ‘seller’ under Texas products-liability law and potentially liable for injuries caused by unsafe products sold on its website. But if Amazon only facilitates the stream when it hosts third-party vendors on its platform, then it is not a seller, meaning injured consumers cannot sue for alleged product defects.” The Fifth Circuit certified this important issue to the Texas Supreme Court in McMillian v. Amazon, No. 20-20108 (Dec. 18, 2020).

Practice tip: In the Court’s review of whether the issue warranted certification, it noted that both parties had agreed that there was “substantial ground for difference of opinion” in order to proceed with an interlocutory appeal under 28 U.S.C. § 1292(b).

The Twelfth Amendment says: “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” By statute, that is to occur this year on January 6. That statute also lays out a procedure for handling objections to votes. Judge Jeremy Kernodle of Tyler rejected a challenge to that process, as the process is in detailed in  Section 15 of 1887’s Electoral Count Act, stating: “Plaintiff Louie Gohmert, the United States Representative for Texas’s First Congressional District, alleges at most an institutional injury to the House of Representatives. Under well settled Supreme Court authority, that is insufficient to support standing.”  Gohmert v. Pence, No. 6:20-cv-660-JDK (E.D. Tex. Jan. 1, 2020).

A Fifth Circuit motions panel (Higginbotham, Smith, Oldham) dismissed an effort at immediate appeal:

The plaintiffs in Molina-Aranda v. Black Magic Enterprises alleged RICO violations based on a scheme to bring them to the US under H2-B visas, but not pay accordingly. The Fifth Circuit affirmed the dismissal of their claims on causation grounds, observing: “Understating the type of work to be done may have supported obtaining the visas, but it was not the cause of underpayment; indeed, if one accepts the Plaintiffs’ allegations, truthfulness would likely have resulted in a lack of visas, keeping Plaintiffs from being able to come to the United States in the first place. But, critically, Plaintiffs’ reduced wages were several steps in the causal chain away from the transmission of fraudulent forms; nothing about the forms required underpayment. To even have the opportunity to underpay Plaintiffs, the Ramirezes had to submit fraudulent forms, obtain authorization, and bring the Plaintiffs to the United States for work. Only then could the Ramirezes actually underpay Plaintiffs.” No. 19-50638 (Dec. 21, 2020) (emphasis added).

The Fifth Circuit affirmed a summary judgment in favor of a business that had been accused of being a “control person” under Louisiana securities laws. “As the district court recognized, the contract between STC and SEI is strong evidence that SEI was unable to control STC’s primary violations. The contract made STC responsible for pricing the SIBL CDs and for providing accurate information to SEI. The contract does not assign any role to SEI in the sale or valuation of SIBL CDs. Further, as the district court noted, the investors’ ‘pleadings contain no evidence demonstrating that the relationship between the companies differed from that contemplated in the
contract.'” The Court then reviewed, and rejected, evidence about the types of work done by the defendant as a service provider. Ahders v. SEI Private Trust Co., No. 20-30186 (Dec. 3, 2020).

When you next want to pose a question in your writing, and really really emphasize it, please consider . . . the Interrobang! Wikipedia suggests the below examples of when the Interrobang may be just the punctuation mark you’re looking for. (H/T to Lucy Forbes of Houston for her knowledge of unconventional punctuation marks)

A Buddhist group sued for alleged infringement of the mark “Unified Buddhist Church of Vietnam” and two others. The Fifth Circuit concluded that of the seven relevant factors about secondary meaning, “only the first factor—the length and manner of use of the Unified Church’s asserted marks—has evidence weighing in favor of the marks having developed protectable secondary meaning.”  On the record presented, that evidence alone was insufficient to justify a finding for the plaintiff, and the Court affirmed a defense summary judgment. The Unified Buddhist Church of Vietnam v. Unified Buddhist Church of Vietnam – Giao Hoi Phat Giao Viet Nam Thong Nhat, No. 19-20544 (Dec. 14, 2020, unpublished). (Relatedly, the Fifth Circuit recently affirmed the denial of a preliminary injunction in Future Proof Brands v. Molson Coors, based on a review of the “digits of confusion” as developed on that record, No. No. 20-50323 (Dec. 3, 2020, unpublished). Our firm represented the appellant in that matter.)

An IRS limitations statute runs from the filing of the “return” in question. The issue in Quezada v. IRS was whether the filing of a return–but the wrong type of return–starts the clock running. The Fifth Circuit found that it did, so long as it contained information from which the taxpayer’s claimed error could be identified: “Accordingly, consistent with a plurality of our sister circuits, we think the better reading of [Supreme Court precedent] is that the taxpayer is not required to file the precise return prescribed by treasury regulations in order to start the limitations clock. Instead, ‘the return’ is filed, and the limitations clock begins to tick, when the taxpayer files a return that contains data sufficient (1) to show that the taxpayer is liable for the tax at issue and (2) to calculate the extent of that liability.” No. 19-5100-CV (Dec. 11, 2020).

The Supreme Court’s rejection of Texas v. Pennsylvania (despite support from an amicus brief by two nonexistent states) has sparked an unusual national dialogue about the concept of standing (including the President’s accurate observation: “All they were interested in is ‘standing’, which makes it very difficult for the President to present a case on the merits.” (emphasis added)). The capable Rory Ryan at Baylor Law School has analyzed and critiqued the dissenters’ position; for reference, the entire order appears below:

The State of Texas’s motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections. All other pending motions are dismissed as moot. Statement of Justice Alito, with whom Justice Thomas joins: In my view, we do not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction. See Arizona v. California, 589 U. S. ___ (Feb. 24, 2020) (Thomas, J., dissenting). I would therefore grant the motion to file the bill of complaint but would not grant other relief, and I express no view on any other issue.

Yes, it’s kind of a pain, but it’s your vote, your voice, and your chance to be heard as to a widely-circulated attorney directory. The link to the Super Lawyers nomination site is here, and the deadline to make your nominations is December 21, 2020.

Automation Support, Inc. v. Philippi, No. 20-10386 (Dec. 8, 2020).

In Williams v. Reeves, 953 F.3d 729 (5th Cir. 2020), “[t]he plaintiffs in this lawsuit are low-income African-American women whose children attend public schools in Mississippi. They filed suit against multiple state officials in 2017, alleging that the current version of the Mississippi Constitution violates the ‘school rights and privileges’ condition of the [1870] Mississippi Readmission Act.”  A Fifth Circuit panel found that ” a portion of the relief plaintiffs seek is prohibited by the Eleventh Amendment,” but that “the lawsuit also partially seeks relief that satisfies the Ex parte Young exception to sovereign immunity.” The full court recently denied en banc review by an 8-9 vote; the votes are described below, and they are identical to the split in another recent vote. (Red and blue show the political party of the nominating President, and an * indicates former service as a trial judge.)

“In November 2015, over a year after Richter claims that an implied contract had been formed, the parties exchanged a letter of intent. The letter stated that it was to be construed as securing a “preliminary understanding” between the parties and to serve as “a preliminary basis for negotiating a written agreement that will contain additional material terms, conditions and provisions not yet agreed upon by the parties.” The letter explicitly stated that it did not constitute a binding contract. We agree with the district court that this renders implausible any inference that the prior 2014 e-mail was intended by the parties to represent assent to be bound by contract …”  Richter v. Carnival Corp., No. 20-10480 (Dec. 1, 2020).

In striking down a regulation of casket-making by a Louisiana monastery, the Fifth Circuit assured: “Nor is the ghost of Lochner lurking about.” St. Joseph Abbey v. Castille, 712 F. 3d 215, 226-27 (5th Cir. 2013). Nevertheless, that fearsome shade surfaced in Hines v. Quillivan, an equal-protection challenge to Texas’s regulation of telemedicine by veterinarians, only to be banished by the panel majority: “It is not irrational for a state to change in stages its licensing laws to adapt to our new, technology-based economy. If the Texas legislature finds the recently enacted changes on telemedicine successful, it may decide to expand those changes to include veterinarians. It is reasonable to have a trial period rather than to make a hasty policy change. Though we could conceive no rational basis for the law challenged in St. Joseph Abbey, we can conceive many rational bases here.”

A dissent saw matters differently, crediting the plaintiff’s argument that “[i]t simply is not rational to allow telemedicine without a physical examination for babies but deny the same form of  telemedicine for puppies on the ground that puppies cannot speak.” No. 19-40605 (revised Dec. 2, 2020).

An error in pleading jurisdiction led to an inconclusive end in Accordant Communications v. Sayer Construction, No. 20-50169 (Dec. 4, 2020):

1. Accordant won a $1.4 million arbitration award against Sayer.
2. Accordant sued to confirm the award in federal court.
3. “As to the citizenship of the parties, Accordant alleged that it ‘is a limited liability company organized under the laws of Georgia with its principal place of business in Seminole County, Florida” and that Sayers ‘is a limited liability company organized under the laws of Texas with its principal place of business in Travis County, Texas.'” 
4. Sayer declined to answer postjudgment discovery, and on appeal argued that the district court lacked subject-matter jurisdiction (as the above allegations are based on the standards for a corporation rather than an LLC).
5. Despite this ‘clearly deficient’ and ‘basic’ pleading problem, the Fifth Circuit did not dismiss the case: “Considering the evidence in the record on appeal … we find that ‘jurisdiction is not clear from the record, but there is some reason to believe that jurisdiction exists.’ Therefore, we exercise our discretion under [28 USC] § 1653 and ‘remand the case to the district court for amendment of the allegations and for the record to be supplemented,’ if necessary.” (citation omitted).

Hon. Thomas Reavley has passed away in Houston, at the age of 99. The Houston Chronicle summarizes his life of extraordinary service to the Texas courts and the U.S. Court of Appeals for the Fifth Circuit, as does the Texas Lawbook. His wisdom and statesmanlike presence will be missed by all.

By an 8-9 vote, the Fifth Circuit abstained from en banc review of McRaney v. North American Mission Board, 966 F.3d 346 (5th Cir. 2020), in which the panel found that the application of the ecclesiastical abstention doctrine was premature given the stage of the parties’ case. A breakdown of the votes is below (the third panel member, Judge Clement, has taken senior status and did not participate in the vote):

“Hard cases make bad law,” says the old adage; whether that holds true for Taylor v. Riojas, will remain to be seen. The Supreme Court reversed a qualified-immunity ruling in a case involving what it saw as “shockingly unsanitary” prison cells, finding that the “extreme circumstances” of the case eliminated any dispute about whether the relevant law was clearly-established. No. 19-1261 (U.S. Nov. 2, 2020) (reversing Taylor v. Stevens, 946 F.3d 211 (5th Cir. 2019).

Doe, a police officer, sued under Louisiana state law for injuries that he suffered when trying to clear a highway of protesters, who had been organized by McKesson. The district court dismissed the case on First Amendment grounds; a Fifth Circuit panel majority “held that a jury could plausibly find that Mckesson breached his ‘duty not to negligently precipitate the crime of a third party’ because ‘a violent confrontation with a police officer was a foreseeable effect of negligently directing a protest’ onto the highway, and the en banc court divided -8 on whether to further review the case.

The Supreme Court held that the issue should be certified to the Louisiana Supreme Court, noting that “the dispute presents novel issues of state law peculiarly calling for the exercise of judgment by the state courts,” and that “certification would ensure that any conflict in this case between state law and the First Amendment is not purely hypothetical. The novelty of the claim at issue here only underscores that ‘[w]arnings against premature adjudication of constitutional questions bear heightened attention when a federal court is asked to invalidate a State’s law.'” McKesson v. Doe, No.19–1108 (U.S. Nov. 2, 2020) (citation omitted).

The dry-sounding issue before the en banc court in Planned Parenthood v. Kauffman, No. 17-50282 (Nov. 23, 2020), was “whether 42 U.S.C. § 1396a(a)(23) gives Medicaid patients a right to challenge, under 42 U.S.C. § 1983, a State’s determination that a health care provider is not ‘qualified’ within the meaning of § 1396a(a)(23).”  The practical consequence of that issue, however, is significant–who may sue about Texas’s termination of several Planned Parenthood facilities from that state’s Medicaid program.

The majority held that under a 1980 Supreme Court case and the structure of the statute, the patients did not have the right to sue. In so doing, the Fifth Circuit joined the Eighth Circuit and split with five others. A 7-judge concurrence (2 votes shy of a majority, given the configuration of the en banc court for this case) would have reached the merits and rejected them. The opinions are illustrated in the chart below:

The Fifth Circuit recently decided to take three matters en banc:

• Cochran v. SEC, 969 F.3d 507 (2020):  “Judicial review of Securities and Exchange Commission proceedings lies in the courts of appeals after the agency rules. 15 U.S.C. § 78y. This appeal asks whether a party may nonetheless raise a constitutional challenge to an SEC enforcement action in federal district court before the agency proceeding ends.”
• Sanchez v. Smart Fabricators, 970 F.3d 550 (2020), in which all three panel members urged the en banc court to address Circuit precedent about the definition of a seaman; and
• Whole Woman’s Health v. Paxton, No. 17-51060 (Oct. 13, 2020), an abortion case in which the panel disagreed about the effect of June Medical Services LLC v. Russo, 140 S. Ct. 2103 (2020).

“Sharing liability is not the same as sharing an identity. As our colleagues in the Ninth Circuit explained, ‘Liability and jurisdiction are independent. . . . Regardless of their joint liability, jurisdiction over each defendant must be established individually.’  Lumping defendants together for jurisdictional purposes merely because they are solidary obligors ‘is plainly unconstitutional.'” Libersat v. Sundance Energy, No. 20-30121 (Oct. 26, 2020) (citation omitted, emphasis added).

The novelty of the international-discovery procedure in 28 USC § 1782 intersected with the collateral-order doctrine about interlocutory appeals in Banca Pueyo SA v. Lone Star Fund: “While we readily conclude that this appeal was premature, we recognize that the unusual nature of section 1782 proceedings results in some uncertainty about when to appeal. Indeed, respondents acknowledged that this might not be the right time, but they appealed now in an abundance of caution. They also worry that an appeal may never be ripe due to the possibility of a future dispute over privilege. But appellate jurisdiction is a ‘practical’ determination, not a speculative one. Once the district court fully resolves the second motion to quash, the scope of section 1782 discovery should be definitively resolved. When that conclusive determination comes, an appeal would be appropriate.”  No. 20-10049 (Oct. 27, 2020) (mem. op.).

Richardson v. Flores reviewed the standards for intervention into an ongoing appeal, noting: “There is no appellate rule allowing intervention generally. Instead, the Federal Rules of Appellate Procedure contemplate intervention only in
proceedings to review agency action. Fed. R. App. P. 15(d). But despite the lack of an on-point rule, we have allowed intervention in cases outside the scope of Rule 15(d). . . .  Perhaps because there is no rule explicitly allowing intervention on appeal, the caselaw explicating the standards for such motions is scarce. In Bursey, when granting a similar motion to intervene, we said ‘a court of appeals may, but only in an exceptional case for imperative reasons, permit intervention where none was sought in the district court.'”  (footnote and citations omitted, emphasis in original). The Court also noted: “Motions to intervene on appeal are different from motions to intervene for purposes of appeal. Motions to intervene for purposes of appeal are used where ‘the existing parties have decided not to pursue [an appeal]’ and are filed in district courts in the first instance under the Federal Rules of Civil Procedure.” (citation omitted).

Who knew? The federal bench in Houston just released an inspiring rendition of “We’ll Be Back” from Hamilton, revised to reflect life in the COVID-19 pandemic.  Bravo!

The defendant in Coastal Bridge Co. v. Heatec, No. 19-31030 (revised Nov. 6, 2020) made a spoliation claim about the loss of a heater involved in a fire. The Fifth Circuit reasoned:

• “As a threshold matter, Because Coastal Bridge reasonably should have anticipated litigation over the fire damage, it had a duty to preserve the equipment.”
• But bad faith was not shown: “Adherence to normal operating procedures may counter a contention of bad faith. Here, an outdoor piece of industrial equipment was stored outdoors. The record does not support the finding that Coastal Bridge acted with a culpable state of mind.”
• And as to relevance: “Heatec did not specifically request to examine the pumps at the joint inspection. As such, the pumps are of questionable relevance for the purposes of its underlying claim that poor pump maintenance can be a cause of a heater fire.”

Billy Joel disputed causation about starting the fire. So did the parties in Coastal Bridge Co. v. Heatec, in which the Fifth Circuit reversed a summary judgment, holding: “Here, genuine disputes of material fact exist as to: (1) the significance of the heating pumps; (2) what equipment was disassembled and disposed of; (3) the origin of the subject fire and whether the inlet pipe moved; and (4) the extent of communication4 that occurred between the parties before the formal notice of the fire. These factual disputes cannot be resolved without weighing the evidence and making credibility determinations, which are matters for the factfinder.” No. 19-31030 (Nov. 6, 2020, revised).

Each of the four factors for a deadline extension was in play in AIG Europe, Inc. v. Caterpillar, Inc., No. 19-40934, where the Fifth Circuit observed:

1. Explanation. “If AIG needed information from Caterpillar’s experts to allow Faherty to complete his expert report, AIG should have moved to compel the depositions of those experts.”
2. Importance. “AIG’s claims do not turn on Faherty’s report. Despite the exclusion, AIG had experts on causation.”
3. Prejudice. “Faherty’s report responded to the analysis of Caterpillar’s experts, it also contained new analyses and conclusions. Defendants were not given the opportunity to challenge these conclusions on the critical issue of causation.”
4. Continuance? “Yet another continuance would have delayed summary judgment and a potential trial even further.”

An “area developer” for Pizza Inn did not timely renew his option contract related to the potential development of new stores. The Fifth Circuit reversed a judgment for the developer, finding that Texas’s doctrine of “equitable intervention” did not apply. The alleged harms from nonrenewal–“a partial forfeiture of a $1,250,000 purchase price, a forfeiture of future profits . . . , and the shuttering of a Pizza Inn franchise store”–were either within the scope of the contractual bargain or simply not unconscionable, as required by the doctrine. Pizza Inn v. Cairday, No. 19-11302 (Nov. 4, 2020).

The issue in 9503 Middlex, Inc. v. Continental Motors, Inc., No. 19-50361 (Nov. 2, 2020) (unpublished), was whether a commercial tenant was “holding over in possession,” and the Fifth Circuit held it was not: “Here, the district court found that the combination of (1) the retention of the keys to the gate, (2) the use of the gate as a shortcut, and (3) the use of the premises as a break area “constituted holding over.” We agree they are relevant evidence, but we do not agree that they are sufficient. Continental did not occupy the premises of Buildings E and F, nor did Continental exercise dominion over the premises. Continental surrendered the properties to the plaintiffs, though it retained a key to an outside gate. We do not see support in the caselaw that a tenant occupies or controls property when something occurs as insignificant as when employees eat lunch at picnic tables on that property.”

The University of Texas’s rules about campus speech did not fare well in Speech First, Inc. v. Fenves, in which the Fifth Circuit found that a preliminary-injunction action could proceed. The Court found that the case was not moot and stated a strong claim on the merits: “Of course, not every utterance is worth protecting under the First Amendment. In our current national condition, however, in which ‘institutional leaders, in a spirit of panicked damage control, are delivering hasty and disproportionate punishment instead of considered reforms,’ courts must be especially vigilant against assaults on speech in the Constitution’s care. Otherwise, the people may not be free to generate, debate, and discuss both general and specific ideas, hopes, and experiences,’ to ‘transmit their resulting views and conclusions to their elected representatives,’ ‘to influence the public policy enacted by elected representatives,’ and thereby to realize the political and human common good.”  No. 19-50529 (revised Oct. 30, 2020) (footnotes omitted).

Belcher complained about the FDIC’s power to take his deposition. The parties, and the panel majority, agreed that his lawsuit did not become moot even after the challenged deposition occurred: ‘Because the district court on remand can ‘fashion some form of meaningful relief,’ appeal is not moot. Exactly what that relief might entail is beyond the scope of our concern. However, it is undisputed by the parties that the district court could strike Belcher’s deposition testimony before the FDIC.”  The majority also noted that the district court could address the FDIC’s sharing of the transcript. A dissent observed: “I see no reason to override what common sense suggests: the appeal of an order requiring a deposition is moot once the deposition is over.”  FDIC v. Belcher, No. 19-31023 (Oct. 26, 2020).

In one of many recent election-law disputes, the panel majority in Richardson v. Hughs painstakingly reviewed, and rejected, the plaintiffs’ challenge to Texas’s practices about signature verification for mail-in ballots. The procedural posture was a motion to stay; a concurrence cautioned: “[T]he reality is that the ultimate legality of the present system cannot be settled by the federal courts at this juncture when voting is already underway, and any opinion on a motions panel is essentially written in sand with no precedential value ….”  footnote omitted). No. 20-50774 (Oct. 20, 2020).

If the law had an attic, it would hold the subject matter of Pool v. City of Houston, No. 19-20828 (Oct. 23, 2020):

It is often said that courts “strike down” laws when ruling them unconstitutional. That’s not quite right. Courts hold laws unenforceable; they do not erase them. Many laws that are plainly unconstitutional remain on the statute books. Jim Crow-era segregation laws are one example. The City of Houston contends that it’s being sued for one of these so-called “zombie” laws. Its Charter allows only registered voters to circulate petitions for initiatives and referenda, even though the Supreme Court held a similar law unconstitutional twenty years ago. This case thus requires us to decide when the threat of continued enforcement is enough to reanimate a zombie law and bring it from the statutory graveyard into federal court.

(citations omitted). Held: the zombie walked, based both on the City’s history of enforcement of this specific law, and the inadequacy of its effort to disclaim further enforcement: “At least based on the current record, the City’s addition of the ‘Editor’s note’ on its website does not moot this case. Voluntarily stopping an unconstitutional practice renders a case moot only ‘if subsequent events ma[k]e it absolutely clear that the allegedly wrongful behavior c[an] not reasonably be expected to recur.'” You can hear more about this case on the Coale Mind Halloween Special – “Attack of the Zombie Statute!” 

The dispute in Smith v. Toyota Motor Corp., No 19-60938 (Oct. 20, 2020), was whether there was diversity jurisdiction over two business entities with diverse business activities, one of which was named . . . Diversity Vuteq LLC. Despite the abundant diversity in the case, the Fifth Circuit reminded that there is not a diversity of opinion about how to properly plead citizenship:

• “To adequately allege the citizenship of Toyota, a corporation, Smith needed to ‘set out the principal place of business of the corporation as well as the stat e of its incorporation.'” (citations omitted);
• “To adequately allege the citizenship of Diversity, a limited liability corporation, Smith needed to ‘specifically allege the citizenship of every member of every LLC or partnership involved in a litigation.'”

A challenging case about the Texas foster-care system returned to the Fifth Circuit in M.D. v. Abbott, No. 19-41015 (Oct. 16, 2020), and the panel did not approve of revisions to an injunction that went beyond its mandate in the previous appeal: “Plaintiffs claim that the district court did not violate the mandate rule
because a court ‘invok[ing] equity’s power to remedy a constitutional
violation by an injunction mandating systemic changes to an institution’ generally has ‘the continuing duty and responsibility to assess the efficacy and consequences of its order.’ As Plaintiffs point out, we recited this general principle in Stukenberg II, stating that ‘[a] district court undoubtedly has the equitable power to oversee compliance with its own injunction.’ ‘E]quitable decrees that impose a continuing supervisory function on the court commonly . . . contemplate the subsequent issuance of specific implementing injunctions.’ But judges disagree on occasion over the proper exercise of equitable powers, just as judges disagree on occasion over the proper interpretation o statutes. When that happens, appellate courts must make the final decision—and once the decision is made, it must be followed. And that, of course, is the whole purpose of the mandate rule: ‘A district court on remand . . . may not disregard the explicit directives of [the appellate] court'”.’ A (citations omitted).

John Dierlam doggedly pursued his religious-freedom challenge to the Affordable Care Act throughout that statute’s “serpentine history.” After considering his persistence in the face of constant statutory change, the Fifth Circuit reversed a finding of mootness, observing: “Ordinarily, when a case ‘has become moot on appeal,’ the court should “vacate the judgment with directions to dismiss.” But ‘in instances where the mootness is attributable to a change in the legal framework governing the case, and where the plaintiff may have some residual claim under the new framework that was understandably not asserted previously,’ we ‘vacate the judgment and remand for further proceedings in which the parties may, if necessary, amend their pleadings or develop the record more fully.’” Dierlam v. Trump, No. 18-20440 (Oct. 15, 2020).

The most recent episode of the Coale Mind podcast discusses Mi Familia Vota v. Abbott, No. 20-50793 (Oct. 14, 2020), a challenge to several Texas voting laws in light of the COVID-19 pandemic. The case reminds of two important limits on federal judicial power in such disputes:

• Under Ex parte Young (Mr. Young appears to the right): “Although a court can enjoin state officials from enforcing statutes, such an injunction must be directed to those who have the authority to enforce those statutes. In the present case, that would be county or other local officials.” 
• And naming the right defendant is only the first hurdle posed by federalism: “An examination of the relief that the Plaintiffs seek in the case before us reveals that in many instances, court-ordered-relief would require the Governor or the Secretary of State to issue an executive order or directive or to take other sweeping affirmative action. If implemented by the district court, many of the directives requested by the Plaintiffs would violate principles of federalism.”

The Fifth Circuit reversed on an issue about arbitrator disclosure, observing, inter alia: “OOGC hypothesizes that these possible, incidental harms to FTS flowing from a unanimous arbitration panel ruling would make [the arbitrator] think that he needed to rule in FTS’s favor or else it would take him personally to task by declining to retain him in future matters. This is simply too much conjecture. Accepting OOGC’s argument would create an ‘incentive to conduct intensive, after-the-fact investigations to discover the most trivial of relationships,’ undercutting the purpose of arbitration ‘as an
efficient and cost-effective alternative to litigation.'”  OOGC America v. Chesapeake Exploration, No. 19-20002 (Sept. 14, 2020).

Early voting begins today in Texas. The Fifth Circuit stayed the district court’s order that would have let large Texas counties have more than one early-ballot pickup location. The panel majority concluded, inter alia, that the plaintiffs misconstrued the entirety of the Governor’s actions: “The July 27 and October 1 Proclamations—which must be read together to make sense—are beyond any doubt measures that ‘make[] it easier’ for eligible Texans to vote absentee. How this expansion of voting opportunities burdens anyone’s right to vote is a mystery” (citation omitted). From there, the majority concluded that the plaintiffs overstated the claimed burden, and failed to give sufficient weight to the Governor’s asserted interest in preventing voter fraud. A concurrence criticized the Governor’s use of emergency power: “If a governor can unilaterally suspend early voting laws to reach policy outcomes that you prefer, it stands to reason that a governor can also unilaterally suspend other election laws to achieve policies that you oppose.” Texas LULAC v. Hughs, No. 20-50867 (Oct. 12, 2020).

The loser of a Florida arbitration sought to challenge it in Texas; the Fifth Circuit affirmed dismissal for lack of personal jurisdiction in Sayers Construction v. Timberline Construction, No. 19-51099 (Oct. 2, 2020), observing as to the categories  of facts alleged:

• Solicitation. “Reid and Duffy are irrelevant because the ‘unilateral activity of a third party’ cannot establish minimum contacts on behalf of a corporate defendant.”
• Communications. “[M]ailing payments to the forum state, engaging in communications related to the execution and performance of the contract, and the existence of a contract between the nonresident defendant and a resident of the forum are insufficient to establish . . . minimum contacts . . . .” (citation omitted); and
• Texas choice-of-law clause. “[T]he choice-of-law clause in the Master Services Agreement does not suggest the parties expected to resolve their disputes in Texas. That’s because the same Agreement also required that arbitration take place in accordance with the AAA’s venue-selection rules—i.e., as close as possible to the project in Florida.”

All journeys must end, and at long last the journey of the transferee’s good-faith defense has ended in Janvey v. GMAG LLC: “This case requires us to determine whether the Texas Uniform Fraudulent Transfer Act’s … good faith affirmative defense allows Defendants-Appellees to retain fraudulent transfers received while on inquiry notice of a Ponzi scheme. We initially held it does not. We then vacated that decision so that the Supreme Court of Texas could clarify whether good faith requires a transferee on inquiry notice to conduct an investigation into the fraud, or, alternatively, show that such an investigation would have been futile. Having received an answer to our question, we once  again hold that the Defendants-Appellees’ good faith defense must fail.”  No. 17-11526 (Oct. 8, 2020).

• Motion in limine? “Even though the motion in limine initially excluded post-sale evidence, nothing prohibited the Jordans from seeking to revisit that ruling later. Though the record indicates that the Jordans contemplated asking the district court to reconsider its ruling on the motion in limine, they never did.”
• Offer of Proof? “Federal Rule of Evidence 103(a)(2) requires parties to proffer excluded evidence to the court unless the ‘substance was apparent from the context.’ The Jordans do not argue that the substance of their bias evidence against Nord was apparent from the context, so they were required to proffer this evidence to preserve the alleged error on appeal. The Jordans failed to proffer evidence of Nord’s alleged bias, so the district court was unable to rule on the evidence’s admissibility. Therefore, we cannot review the exclusion of this evidence.” (citations omitted).

Jordan v. Maxfield & Oberton Holdings, LLC, Ni. 19-60364 (Oct. 7, 2020).

A nonprofit complained about a lack of press access to the Texas legislative session in 2019, and argued that the case avoided mootness because of the “capable of repetition yet evading review” exception to that doctrine. The Fifth Circuit disagreed, noting that the nonprofit had not fully used the available tools to move its case along: “Crucially, Empower never asked this court to expedite its appeal. Both the Federal Rules of Appellate Procedure and this court’s local rules allow a party to move the court for an expedited appeal.  Empower did not take advantage of these rules. That relaxed approach can be contrasted with a recent case in this court involving a plaintiff who similarly sought an injunction against public officials so that he could attend school-district meetings and activities. … In [that case], two days after the appealed was docketed, the plaintiff–appellant filed a motion for expedited appeal which, he argued, was “necessary to redress [the] ‘irreparable injury.’” We granted that motion and moved the case along with appropriate dispatch.
In contrast, Empower demonstrated no such urgency. When time is of the essence, a party must act like it.” Empower Texas, Inc. v. Geren, No. 19-50577 (Oct. 5, 2020) (citations omitted).

Basic Capital Management v. Dynex, No. 20-40643 (Sept. 30, 2020), reminds about the proper record for evaluating a Rule 12 dismissal motion:

• “[A]s the district court correctly observed, the Form 10-K and the state-court [case] record ‘are al publicly available governmental filings and the existence of the documents, and the contents therein, cannot reasonably be questioned.’ Therefore, the Form 10-K and the state-court record fall squarely within the ambit of [Fed. R. Evid.] 201(b).”
• “Rule 201(d) expressly provides that a court ‘may take judicial notice at any stage of the proceeding,’ and our precedents confirm judicially noticed facts may be considered in ruling on a 12(b)(6) motion. Therefore, in ruling on the 12(b)(6) motion, ‘the district court appropriately used judicial notice.'”

“[C]ourt changes of election laws close in time to the election are strongly disfavored. … [I]n staying a preliminary injunction that would change election laws eighteen days before early voting begins, we recognize the value of preserving the status quo in a voting case on the eve of an election, and we find that the traditional factors for granting a stay favor granting one here.” Texas Alliance for Retired Americans v. Hughs, No. 20-40643 (Sept. 30, 2020).

If the details of the virgule are not obscure enough for you, then you will love this wonderful article from Smithsonian Magazine about the “pilcrow,” a/k/a the paragraph symbol.

While Adams v. Alcolac, Inc. presents an exotic dispute –civil liability for the use of mustard gas by Saddam Hussein’s regime–it turns on a fundamental issue of foreseeability under Texas tort (conspiracy) law: “The plaintiffs argue that it was foreseeable that the exported TDG [chemical] would be turned into mustard gas by some ‘nefarious character’ and that it would then be ‘used for terrorist activity.’ Perhaps so, but that misses the point. The question is not whether the plaintiffs’ battery was a foreseeable result of the alleged conspiracy but whether the battery was ‘done in pursuance of the common purpose of the conspiracy[.]’ Because there is no evidence of a common purpose beyond the initial sale and exportation of the TDG, any eventual use of mustard gas on the plaintiffs, even if foreseeable, was not in furtherance of the alleged conspiracy. The plaintiffs’ conspiracy claim thus fails for lack of an underlying tort.” No. 19-40899 (revised, Sept. 25, 2020) (citations and footnote omitted, emphasis added).

Badgerow v. REJ Properties, Inc., No 19-30584 (Sept. 11, 2020), applying the McDonnell-Douglas burden-shifting framework, reached the issue of whether there was a fact question on pretext and concluded that there was:

“The timing of Badgerow’s firing is highly indicative of motive. According to Badgerow’s version of events the day she was fired, she received a call from Walters who said that he had ‘just got off the phone with Marc Cohen’ and would call her back. When Walters called Badgerow back, he asked her to travel from her office in Houma to his office in Thibodaux so that he could speak with her in person. During their in-person meeting, Walters terminated Badgerow’s employment. Thus, Badgerow’s firing occurred in the immediate aftermath of Walters being informed of Badgerow’s complaints to Cohen. And Badgerow has adduced other significant evidence of pretext. For example, although REJ states that Walters fired Badgerow due to constant complaints from her coworkers, Badgerow asserts that the only explanation he gave for her firing was that she had ‘dinged his perfect . . . record’ with Ameriprise. And Walters admits that immediately before firing Badgerow he ‘told her that Cohen had said he needed to hire a labor attorney and asked “[d]o I have to worry about you suing me?” Finally, although Walters testified that Badgerow’s coworkers had been complaining to him about her behavior for months, Walters seemed determined to keep Badgerow as one of his AFAs until his conversation with Cohen. A reasonable fact finder could infer from this evidence that REJ’s proffered reason for Badgerow’s firing was pretext for unlawful retaliation.”

(citation omitted, emphasis added).

Certain motions toll the deadline for filing a notice of appeal — but not multiple times: “Here, the Employees filed a motion for judgment as a matter of law and, alternatively, a new trial, on March 12, 2019. The district court entered final judgment on March 27 without expressly addressing that motion, thus implicitly denying it. On April 10, the Employees refiled the motion. The refiled version was identical to the March 12 version that the judgment implicitly denied. It therefore did not toll the appeal deadline and the 30 days began to run with the entry of judgment on March 27. The Employees did not file a notice of appeal until June 12. Because that notice was untimely under 28 U.S.C. § 2107, the Employees’ appeal must be dismissed for lack of jurisdiction.” Edwards v 4JLJ, LLC, No. 19-40553 (Sept. 21, 2020) (on rehearing, footnotes omitted).