Reiterating a recent holding in a near-identical lawsuit, in Bourque v. State Farm the Fifth Circuit rejected the certification of a class of insureds who were dissatisfied with the amount paid by State Farm for their wrecked cars:

Plaintiffs contended that they had met this standard because any class member who was paid less than the [National Automobile Dealers’ Association] value of their vehicle necessarily received less than [Actual Cash Value] and therefore suffered an injury. But we rejected that premise, explaining that NADA value was just one of many statutorily acceptable methods for calculating ACV, and therefore pinning ACV to NADA value constituted an impermissibly arbitrary choice of a liability model. 

No. 22-30126 (Dec. 22, 2023).

The Bar Association of the Fifth Federal Circuit is the bar association to belong to if you’re interested in the work of the U.S. Court of Appeals for the Fifth Circuit. More information about member benefits is detailed on the BAFFC’s website. One of those benefits is a terrific set of short (c. 500 word) articles about appellate practice (here’s an example that I did about a year ago on oral-argument preparation).

Please consider writing one yourself! A link will be emailed out several times to the BAFFC’s thousands of members, as part of its daily updates about recent decisions, and it’ll be available to the membership online as part of the full collection of these pieces. Contact BAFFC administrator Mary Douglas at mary@baffc.org!

The National Court Reporters Association recently published a fascinating “white paper” about “ethical and legal issues related to the use of artificial intelligence … and digital audio recording of legal proceedings.” It’s succinct, thoughtful, and raises questions relevant to just about any area of law practice or court administration that’s touched by the influence of generative AI and related technologies.

A Fifth Circuit panel applied circuit precedent to reject a liablity claim involving Snapchat in Doe v. Snap, Inc., No. 22-20543 (June 26, 2023), stating: “Parties complaining that they were harmed by a Web site’s publication of user-generated content . . . may sue the third-party user who generated the content, but not the interactive computer service that enabled them to publish the content online.” By a one-vote margin, the full court denied en banc review, as follows (notably, Edith Jones voted with the court’s Democrats to not review the panel opinion): 

The mifepristone litigation – recently selected by Law360 as the most notable case of 2023 from the Fifth Circuit – will be heard by the Supreme Court. While it did not grant the petition about the original approval of mifepristone, a wide range of significant issues–including important standing questions, and the modern viability of the Comstock Act–are ripe for decision as part of the granted petitions:

Whatever your views of the remarkable civil-rights issue presented by Wilson v. Midland County (the intersection between some highly technical immunity rules and the bizarre injustice of a county employee working simultaneously for the prosecution and the courts), one can admire the deft prose of Jude Willett’s opinion:

The Fifth Circuit reminded about the basics of issue statements in Smith v. Delta Charter Group, Inc.:

Delta also forfeited its argument that the district court should have instead applied Rule 54(b). Delta didn’t include this argument in its “Statement of the Issue” or in the body of its opening brief—rather, Delta relegated it to a footnote. We have repeatedly cautioned that arguments appearing only in footnotes are “insufficiently addressed in the body of the brief” and are thus forfeited. Delta’s Rule 54(b) argument meets this predictable fate.

No. 23-30063 (Dec. 13, 2023).  Note that this is NOT a criticism of the “citational footnote”–and in fact, the concept of the citational footnote rejects this sort of stealthy, footnote-only legal argument.

“Here, ‘all parties have agreed from the beginning of this case that Houston’s voter registration provisions governing circulators’  are unconstitutional. The City also agreed that it ‘would and could not enforce the provisions.’ The City has repeatedly and consistently emphasized its agreement with the plaintiffs throughout this suit. Such faux disputes do not belong in federal court.”

Pool v. City of Houston, No. 22-20491 (Dec. 11, 2023) (citations omitted).

The defendant in a boat-collision case challenged the admission of an accident reconstruction; the plaintiff argued that this point was not preserved. The Fifth Circuit concluded that the defendant had preserved some grounds for objection in a pretrial motion to exclude, a proposed pretrial order, and another pretrial filing about evidence. Thus: “[Defendant’s] pretrial objections preserved the arguments contained in Balkan’s motion in limine concerning authrntication and expert testimony. But neither he nor Balkan argued below that the reconstruction was inadmissible summary judgment evidence. That argument thus was not preserved for appeal.” Marquette Transp. Co. v. Navigation Maritime Bulgare JSC, No. 22-30261 (Dec. 4, 2023).

The Senate recently confirmed Hon. Irma Ramirez of Dallas as a judge on the Fifth Circuit. When she takes office the Court will again be at a full complement of active judges.

Eschewing exotic constitutional issues about a state’s rights to engage in military activity, the Fifth Circuit affirmed a preliminary injunction requiring Texas to remove an obstacle from the Rio Grande, citing the federal government’s exclusive authority as to navigable waters. United States v. Abbott, No. 23-50632 (Dec. 1, 2023). A dissent had a different view; some serious consideration of en banc review is likely.

After resolving threshold matters about justiciability, the Fifth Circuit rejected facial First Amendment challenges to Texas laws about the use of drones in Nat’l Press Photographers Ass’n v. McCraw, as follows:

• “No-Fly” provisions. “Plaintiffs’ First Amendment challenge to the No-Fly provisions falters because ‘only conduct that is “inherently expressive” is entitled to First Amendment protection.’ The operation of a drone is not inherently expressive—nor is it expressive to fly a drone 400 feet over a prison, sports venue, or critical infrastructure facility. And nothing in the No-Fly provisions has anything to do with speech or expression. These are flight restrictions, not speech restrictions.” (footnotes omitted, emphasis in original).
• “Surveillance” provisions (which prohibit the use of a drone to capture images “with the intent to conduct surveillance ….”). “Though most drone operators harbor no harmful intent, drones have singular potential to help individuals invade the privacy rights of others because they are small, silent, and able to capture images from angles and altitudes no ordinary photographer, snoop, or voyeur would be able to reach. … The law is also tailored to bar only surveillance
  that could not be achieved through ordinary means …. We therefore conclude that the law survives intermediate scrutiny.”

No. 22-50337 (Oct. 23, 2023). The opinion was later revised.

An antitrust case in Tennessee recently produced a remarkably contentious dispute about the definition of “double spacing,” as deftly summarized in this “Above the Law” article titled “Heated Litigation Fight Over Double Spacing Ends in Judge Telling Everyone to Shut Up.” While the dispute was picayune, the discussion of just what exactly “double spacing” means is interesting background for a modern word-processing feature that we seldom stop and think about. Thanks to my law partner Chris Schwegmann for flagging this for me.

A series of cases about the EPA’s regulation of small refineries led to a disagreement about Circuit venue over this kind of administrative-agency challenge. A majority appled a two-part test focused on whether the agency action was “nationally applicable”; the dissent rejected the majority’s analysis as inconsistent with statutory text, purpose, and structure. No. 22-60266 etc. (Nov. 22, 2023).

The “Lyme Wars” are an ongoing medical controversy about the diagnosis and treatment of Lyme disease. Absent Supreme Court review, one front in those “wars” ended in Torrey v. Infectious Diseases Society of America, in which the Fifth Circuit affirmed the dismissal of defamation claims related to statements in a medical journal: “[T[he district court did not err in holding that IDSA’s Guidelines statements about chronic Lyme disease constitute nonactionable medical opinions.” No. 22-40728 (Nov. 16, 2023).

The latest installment in the “Bar Wars” litigation about speech by compulsory bar associations is Boudreaux v. Louisiana State Bar Ass’n, holding:

[T]he majority of speech Boudreaux objects to is germane. Speech can be germane even if it is “controversial and ideological.” But the LSBA crossed the line when it promoted purely informational articles absent any tailoring to the legal profession. That includes the LSBA’s tweet about student-loan reform and its promotion of the History.com article through a pride flag icon. Advancing generic political and social messages in those ways violates the First Amendment rights of the LSBA’s dissenting members. 

No. 22-30564 (Nov. 13, 2023).

The question in Elmen Holdings, LLC v. Martin Marietta Mat’ls, Inc. was whether a gravell-mining lease had terminated. The district court included that it had been terminated, and the appellant’s first issue was that the court’s analysis went too far under the “party-presentation” principle — a concept given new life and relevance by United States v. Sineneng-Smith, 140 S. Ct. 1575 (2020).

The Fifth Circuit concluded that while the appellant’s argument “had some merit,” the trial court did not go too far:

“[T]he magistrate judge recommended granting Elmen’s motion for summary judgment because Martin Marietta had been late on several royalty payments. The magistrate judge did not ‘radical[ly] transform[]’ this case to such an extent as to constitute an abuse of discretion; she merely took a different route than Martin Marietta and Elmen had suggested to ;decide . . . questions presented by the parties.’ Therefore, the magistrate judge did not violate the party presentation principle by interpreting the Gravel Lease to terminate automatically upon a missed royalty payment, even if that interpretation was contrary to the parties’ reading of their contract.”

No. 23-20023 (Nov. 15, 2023); cf. United Natural Foods v. NLRB, 66 F.4th 536 (5th Cir. 2023) (majority and dissent disagree about whether a particular line of argument is allowed by the party-presentation principle).

Anytime Fitness LLC v. Thornhill Bros. Fitness LLC, acknowledging that a bankruptcy debtor may assign or assume an executory contract, provided an important reminder about the extent of that power: “We reiterate our prior holdings: a debtor assuming an executory contract cannot separate the wheat from the chaff. And we make clear that, when a trustee relies on § 365(f) to assign an executory contract in bankruptcy, it must assign the contract in whole, not in part.” No. 22-30757 (Oct. 27, 2023).

The Oil Pollution Act provides remedies for the wrongful release of oil into the environment. CERCLA does the same for a number of other pollutants. The issue in Munoz v. Intercontinental Terminals Co., LLC was whether OPA liability extended to a spill that combined oil with other hazardous substances regulated by CERCLA. Based on statutory language and structure, the Fifth Circuit concluded that the OPA did not apply to such a chemical release. No. 22-20456 (Oct. 27, 2023).

In an instructive review of a products-liability judgment based on expert testimony and a hotly disputed jury instruction, the Fifth Circuit affirmed in Kim v. American Honda Motor Co.:

Honda attempts to escape this jury verdict by arguing the district court erred in three ways: by admitting Plaintiffs’ experts, denying its JMOL motion, and denying its proposed instruction about the nonliability presumption. But it is incorrect on all fronts. The Plaintiffs’ experts based their opinions on reliable methodologies and provided relevant, helpful testimony. As such, there was sufficient evidence for the jury to find Honda liable for the Kims’ injuries. The district court’s application of the Texas statutory presumption of nonliability was also faithful to the statutory text, the precedent of Texas, and the precedent of this Court.

No. 22-40790 (Nov. 7, 2023).

Antero Resoiures Corp. v. C&R Downhole Drilling Inc., an appeal about an $11 million judgment for alleged overbilling in energy production, rejected a second challenge to the plaintiff’s damages calculation in addition to the one discussed yesterday.

Specifically, the appellant argued that the expert’s testimony “was deficient because it did not consider what rates competing drillout providers might have paid. Even if the Robertson companies took longer, so the argument goes, if they charged significantly less than other companies, Antero might have ended up paying less than if it had hired someone else.”

The Fifth Circuit rejected this argument for two related resons:

1. Legal materiality. “[E]vidence of a competitor’s rate is not necessary to prove out-of pocket damages. To show damages, Antero need only prove that the Robertson companies charged it more than the ‘value [Antero] received.’ By billing Antero more than the services it rendered, Kawcak caused Antero to incur out-ofpocket expenses. That is, Antero paid $150,000,000 in exchange for a certain number of days of work. But because the Robertson companies did not actually work on all of the days they billed, the value of the work Antero received was only $138,877,860. The difference in value is the amount overbilled. No reference to competitors’ rates is needed for that statement to be true.”
2. Factual materialty. “[T]he jury was not required to accept Kawcak’s testimony regarding Fortis Energy’s rates. As Antero points out, there are multiple reasons why the jury might not have credited Kawcak’s assertion that Fortis Energy was the only other available drillout provider, and that it would have charged more than the Robertson companies. Kawcak gave the rates strictly from memory, and his credibility was already in question because of his inconsistent answers to previous questions.”

No. 22-10918 (Oct. 31, 2023) (citations omitted).

Antero Resoiures Corp. v. C&R Downhole Drilling Inc. presented a dispue about the calculation of damages in a case about alleged overbilling in energy production. The Fifth Circuit affirmed against a challenge that the plainitff’s expert was not sufficiently precise, holding:

[T]the amount of damages need only be proven “with a reasonable degree of certainty.”  Taylor’s testimony calculated Antero’s out-of-pocket damages to a reasonable degree of certainty, especially when viewing the evidence in favor of the verdict. Taylor followed sound analytical methods to determine how long the Robertson companies should have taken to complete the drillout services. He reviewed the hundreds of completion reports and tens of thousands of invoices, accounting for uncontrollable delays and site-specific conditions. Taylor then compared the time spent to the time taken by previous drillout providers and concluded that the Robertson companies took some percentage longer than those companies. Applied to the rates charged by the Robertson companies, Taylor calculated damages in the amount of $11,122,140. That is a perfectly rational way of approximating overbilling.

No. 22-10918 (Oct. 31, 2023) (citation omitted).

In Chamber of Commerce v. U.S. Sec. & Exch. Comm’n, the Fifth Circuit found that the SEC acted too quickly in enacting a challenged rule, but then allowed it a “do-over” within a specified time:

The SEC acted arbitrarily and capriciously, in violation of the APA, when it failed to respond to petitioners’ comments and failed to conduct a proper cost-benefit analysis. We recognize that “there is at least a serious possibility that the agency will be able to substantiate its decision given an opportunity to do so.” Short of vacating the rule, we therefore afford the agency limited time to remedy the deficiencies in the rule. Because, for the reasons explained, the SEC’s adoption of the Share Repurchase Disclosure Modernization Rule is arbitrary and capricious, the petition for review is GRANTED, and this matter is REMANDED with direction to the SEC to correct the defects in the rule within 30 days of this opinion. This is a limited remand. This panel retains jurisdiction to consider the decision that is made on remand.

No. 23-60255 (Oct. 31, 2023); but cf. Alliance for Hippocratic Medicine v. U.S. Food & Drug Admin., No. 23-10362 (Aug. 16, 2023).

In re TikTok, Inc. returns to the ground plowed by In re Volkswagen in 2008 and In re Radmax in 2014: a mandamus petition about the erroneous denial of a motion to transfer venue under 28 USC § 1404(a). In this case (an intellectual-property case brought against TikTok by another Chinese business), The Fifth Circuit noted several missteps by the district court that justified mandamus relief, inter alia:

• Relative ease of access to sources of proof–source code. “The district court concluded that the source code was accessible as easily in Texas as in California because one member of the California engineering team with the needed security clearance worked remotely in Irving, Texas. But the court erred by comparing Texas with California when it should have been comparing the Western District of Texas with the Northern District of California.”
• Relative ease of access to sources of proof–people. “Neither the district court nor Meishe identifies any record evidence showing that any employee in the Western District of Texas possesses proof relevant to this case. The district court relied on deposition testimony and witness declarations from several of petitioners’ employees. That evidence, however, only establishes that a high-ranking company executive and other employees worked in Austin as members of a “Global Business Solutions Group.” It does not tie those individuals to this case, or show that they do any work related to the video-editing functionality or its implementation, or support the proposition that any of them would have physical proof relevant to the adjudication of Meishe’s claims. … [I]t is pure speculation whether any of petitioners’ Austin-based employees possesses or has access to proof relevant to this case.”
• Court-created delay. “Petitioners filed their § 1404(a) motion timely, yet the district court took no action on the motion for months, with the record showing no adequate reason for the delay. Moreover, the court failed to grant a stay, so the case proceeded through discovery for almost a year. When the court finally ruled, it used the case progress its delay engendered as a reason for denying transfer. If we were to hold that this is a proper exercise of discretion, a district court would have absolute control over whether these two factors weighed in favor of transfer.”

Joining other courts that have made similar additions to their local rules, the Eastern District of Texas now has new local rules dealing with the use of generative AI:

Anytime Fitness LLC v. Thornhill Bros. Fitness LLC, an opinion about a bankruptcy debtor’s power to partially assign a contract, quotes the useful but infrequently heard principle of “Nemo dat quod non habet” (“No one can give what they do not have.”). The principle is quoted in a suprising variety of situations and has inspired academic commentary about its interplay with related ideas.

During an Erie analysis of a Louisiana-law issue, the Fifth Circuit observed: “We are ‘a strict stare decisis court,’ meaning that a prior panel’s interpretation of state law is ‘no less binding on subsequent panels than are prior interpretations of federal law.'” QBE Syndicate 1036 v. Compass Minerals Louisiana, Inc., No. 23-30076 (Oct. 12, 2023). What distinguishes a “strict stare decisis court” from a less-strict one is not entirely clear, but the application of the “rule of orderliness” to state-law issues is well settled.

United States v. Johnson, a criminal case, identifies an erroneous statistics-based argument called “the prosecutor’s fallacy,” and the structure of that argument is of general interest to all litigators:

At Johnson’s second trial, the government introduced expert testimony about a partial DNA sample obtained from a bandana found in the vehicle used in the robbery. Testing yielded inclusionary match statistics capturing the probability that the sample was Johnson’s as compared to a coincidental match of an unrelated person, and the lowest inclusionary match statistic had an error rate of one in 4,100. That is, the expert explained, only one in 4,100 people would match the sample as strongly as Johnson did. But, in the government’s first closing argument, the prosecutor said that Johnson “left very little DNA, but he left just enough to prove that it was him in the front seat when you combine the 1 in 4,100 chance that it’s not him.” Johnson did not object.

 

The prosecutor’s fallacy occurs when “a juror is told the probability a member of the general population would share the same DNA is 1 in 10,000 (random match probability), and he takes that to mean there is only a 1 in 10,000 chance that someone other than the defendant is the source of the DNA found at the crime scene (source probability).” Conflating these two probabilities, as the prosecutor did here, yields “an erroneous statement that, based on a random match probability of 1 in 10,000, there is a 0.01% chance the defendant is innocent or a 99.99% chance the defendant is guilty.” 

No. 22-30421 (Oct. 26, 2023) (citation omitted). Note that the Court did not reverse on this issue in this case. The above graphic was supplied by DALL-E, a feature of the newest iteration of ChatGPT.

In Louisiana Creole cooking, gumbo is a flavorful, roux-based soup made with the ingredients available to the chef. Similarly, Alliance for Fair Board Recruitment v. SEC addresses a host of constitutional issues of the day, including the questions whether a board-membership disclosure requirement by Nasdaq can be “state action”; whether the SEC’s approval of such a rule exceeded its statutory authority (including the subsidiary questions whether that action infringed on state sovereignty or involved a “major question”); and whether the SEC properly assessed the relevant record in reaching its conclusion. Unusual for the Fifth Circuit, the panel consisted of three judges appointed by Democratic presidents. It remains to be seen what the view of the full court will be on these matters. No. 21-60626 (Oct. 18, 2023).

Thanks to a persuasive letter from a typographically sophisticated attorney, the Maryland Supreme Court recently recently modernized its list of acceptable fonts, as follows (omitting Palatino and Equity, however). Thanks to my law partner Greg Brassfield for drawing this to my attention!

Also of general interest, the letter links to an informative series of Tweets about the typography used in the federal courts of appeal.

The question in Armadillo Hotel Group v. Harris was whether Armadillo’s federal-court trade-secrets claim constituted “claim splitting,” given earlier, related litigation between the same defendants and an entity related to Armadillo. The Fifth Circuit agreed with the district court’s conclusion as to the claims, but remanded for further development of the record about the parties:

• Claims: “It is irrelevant that Harris and McDaniel brought suit against AHG Management on the basis of fraudulent inducement related to their employment. Although Harris and McDaniel have a different cause of action than Armadillo, our focus is the relevant claims that arise out of a common nucleus of operative facts.”
• Parties: “The Defendants rely on the similarities in Armadillo’s and AHG Management’s descriptions of themselves, in the shorthand names they use in their respective cases, in their services and customers, and in their descriptions of the confidential information at issue. … Perhaps an inference is reasonable that Armadillo and AHG Management are in privity based on the similarities the Defendants highlight. At the motion to dismiss stage, however, such inferences are inappropriate.”

No. 22-50945 (Oct. 20, 2023) (emphasis in original).

Two recent opinions touch on the important but infrequently addressed topic of judicial recusal. In one, the Fifth Circuit’s Chief Judge identified a complaint against a prominent bankruptcy judge based on an allegedly inappropriate personal relationship. In the other, a panel rejected a request to recuse a district judge from several Deepwater Horizon cases based on a past law-firm partnership.

The remand of Collins v. Yellen, 141 S. Ct. 1761 (2020) did not end well for the plaintiffs, as the district court concluded that they “had not plausibly alleged that the removal restriction” on FHFA’s director caused them harm. The plaintiffs made a valiant effort to bring the case within the scope of a recent Fifth Circuit holding about the Appropriations Clause, but the Fifth Circuit found that its holding in that case did not create a change in the relevant law that was sufficient to overcome the mandate rule. Collins v. Dep’t of the Treasury, No. 22-20632 (Oct. 12, 2023).

The Fifth Circuit reversed the district court and allowed the City of Dallas’s ordinance requiring sexually oriented businesses to shut down by 2 AM, summarizing: “”Under longstanding Supreme Court precedent, the Ordinance is likely constitutional. The City’s evidence reasonably showed a link between SOBs’ late-night operations and an increase in “noxious side effects,” such as crime. The Ordinance also left the SOBs ample opportunity to purvey their speech at other times of the day and night.” Assoc. of Club Executives v. City of Dallas, No. 22-10556 (Oct. 12, 2023).

A case about allegedly stolen computer code concluded with a case-ending sanction against the defendant. The Fifth Circuit affirmed; in sum:

Dabral admittedly deleted evidence, delayed discovery on several occasions, and ignored court orders. And, when he was offered one last “chance” to “come clean” and submit an unmodified source code control system, he didn’t. Instead, he deleted more evidence and produced a copy of the system that had numerous other files missing. Per his own expert, those deletions were seemingly “intentional” and done after the filing of Calsep’s suit and even after the district court’s disclosure order. So, the district court concluded that Dabral acted willfully and in bad faith. The court didn’t reach that conclusion easily. Instead, it came after months of violations and a long evidentiary hearing. Only then did it make its informed decision. 

Calsep A/S v. Dabral, No. 22-20440 (Oct. 11, 2023).

In a revised opinion, the Fifth Circuit again affirmed the convictions of executives associated with a “Ponzi-like scheme” involving United Development Funding. The Court reviewed a number of sufficiency challenges to various securities fraud charges; an example of its reasoning is as follows:

It does not matter that UDF IV and UDF V had collateral on the loans that it transferred to UDF III. Nor does it matter that they did not intend to cause investors financial loss. (citation omitted) (“[T]he [fraud] statute, while insisting upon ‘a scheme to defraud,’ demands neither a showing of ultimate financial loss nor a showing of intent to cause financial loss.”). Appellants exposed investors to risks and losses that, if publicly disclosed, would have decreased its value and investment power. That is enough to support a fraud conviction.

United States v. Greenlaw, No. 22-10511 (Oct. 11, 2023).

SXSW, LLC v. Federal Ins. Co., an insurance-coverage case arising out of the 2020 cancellation of South by Southwest because of COVID-19, presented some “evergreen” issues about LLCs and diversity jurisdiction that led to a remand for further development of the record. The Fifth Circuit noted “at least three potential jurisdictional
defects” on the record presented–

• “First, there is a potentially important difference between LLC membership and LLC ownership. State law governs LLC formation and organization. Several states permit LLC membership without ownership. … SXSW has not shown the relevant LLCs were formed in States that equate membership and ownership.”
• “Second, SXSW stated that Capshaw [an LLC owner] was a Virginia resident. But residency is not citizenship for purposes of § 1332.”
• “Finally, there is a timing issue. For diversity jurisdiction, we look to citizenship at the time the complaint was filed. The complaint makes no allegations about the citizenship of SXSW’s members. Federal’s December 14, 2021 exhibit contains some additional information, as does SXSW’s February 22, 2023 appellant brief.But we have no way of knowing whether those later documents reflect SXSW’s membership structure as of October 6, 2021.”

No. 22-50933 (Oct. 5, 2023) (citations omitted, emphasis added).

A trucking company went into bankruptcy after its insurer paid a substantial sum to settle a personal-injury case. Other claimaints claimed that the payment was a preferential transfer, and the Fifth Circuit agreed that the claim could proceed:

As the Supreme Court explained in Begier, “[b]ecause the purpose of the avoidance provision is to the preserve the property includable within the bankruptcy estate . . . ‘property of the debtor’ subject to the preferential transfer provision is best understood as that property that would have been part of the estate had it not been transferred before the commencement of bankruptcy proceedings.” The Policy Proceeds would have been property of the estate at the time the petition was filed if they had not been transferred. Thus, for the purposes of the avoidance provision as stated in Begier, the Policy Proceeds are the property of the estate.

Law Office of Rogelio Solis PLLC v. Curtis, No. 23-40125 (Oct. 6, 2023) (citations omitted).

In a dissent from a recent, close en banc vote in a criminal case, Judge Smith reiterated an earlier warning to again caution: “Highly consequential opinions should not be designated as unpublished in an obvious effort to discourage judges from voting in favor of en banc rehearing.” United States v. Ramirez, No. 22-50042 (Sept. 19, 2023).

Carbon Six Barrels, LLC v. Proof Research, Inc., a state-law trademark case about the design of gun barrels, turned on an Erie conclusion about Louisiana prescription law:

While true that Hogg and Crump arose in the context of damage to real property, we, like the district court, see no reason that the general principle those opinions announced should not apply here. The Louisiana Supreme Court made clear that “[t]he inquiry [as to a continuing tort] is essentially a conduct-based one, asking whether the tortfeasor perpetuates the injury through overt, persistent, and ongoing acts.” … This principle is not confined to the real property context. The district court was correct in stating that the earlier cases Carbon Six cites “are generally inconsistent with the [Louisiana] Supreme Court’s holding in Hogg,” and that “Louisiana law does not support the broad proposition that LUTPA’s prescriptive period is suspended as long as a perpetrator of fraud fails to correct his false statements.” This proposition would transform nearly every business dispute into a continuing tort. 

(citations omitted). Also, I spoke about “AI and the Legal Profession” at the recent annual meeting of the Bar Association of the Fifth Federal Circuit, and used the briefs in this case to illustrate the capabilities (and deficiencies) of generative AI–here is my PowerPoint!

In re Landry presents a baffling interaction between: (1) the ongoing appeal of  a preliminary injunction in a Louisiana congressional-district case, and (2) a mandamus proceeding, challenging the setting of a district-court hearing about a remedial plan, related to that same redistricting dispute.

By a 2-1 vote, a panel granted mandamus relief against that hearing going forward, noting the unusual policy and separation-of-power considerations that arise in redistricting cases. The dissent would have consolidated the mandamus proceeding with the ongoing appeal, and a concurring judge indicated that he would have been inclined to do so too, had the panel handling the preliminary-injunction appeal so asked. No. 23-30642 (Sept. 28, 2023).

Together with the able Ben Taylor, I have an article in the most recent Baylor Law Review called “Judgment Rendition in Texas.” The abstract is below. Our article was inspired by a 1975 article by Justice Robert Calvert in the Texas Tech Law Review called “Appellate Court Judgments or Strange Things Happen on the Way to Judgment.” We hope that we updated some of his insights for modern-day appellate practice.

The Supreme Court has granted review of three social-media regulation cases, one of which is the 2022 2-1 panel opinion by the Fifth Circuit in Netchoice v. Paxton, which conflicts with a 2022 opinion from the Eleventh Circuit about similar subject matter. These are the two issues referenced in the Court’s order granting review:

After rendition of a substantial judgment in a matter tried to a magistrate judge, the defendant argued that its consent to proceed before the magistrate judge was invalid, because it was unaware of an allegedly close friendship between the magistrate judge and plaintiff’s counsel at that time. The Fifth Circut held: “[W]e do not have a complete factual record,” noting a lack of information about (1) the full extent of the relationship, (2) the specific disclosures made about it–and when they were made, and (3) whether the defendant unduly delayed in raising its argument about the relationship. IFG Port Holdings LLC v. Lake Charles Harbor & Terminal District, No. 22-30398 (Sept. 21, 2023) (The importance of valid consent was also the focus of a 2021 Fifth Circuit case that reversed after a trial.)

This blog celebrated its 12th birthday last week. To celebrate properly, you can follow this day-long (?!) recipe to make a festive New Orleans style doberge cake.

A birthday tradition for 600Camp is to recall the 2013 case of Farenco Shipping Co. v. Farenco Shipping PTE, Ltd., which produced the best mootness argument of all time — a case about the seizure of a marine vessel became moot once the ship had sailed.

The M/V OCEAN SHANGHAI, recently renamed as SFERA, has avoided the Fifth Circuit’s waters ever since; as of September 19, 2023, it had just entered the North Sea to the west of Denmark.

After an accident involving a failed tire, the remains of the tire were transported to the defendant’s trucking facility, after which they vanished. The Fifth Circuit held that the tire’s disappearance created a jury question about bad faith based on “the following circumstantial evidence:”

Prime destroyed the most crucial piece of evidence just weeks after learning that its tire may have caused a car accident; Prime cannot explain why it transported the tire to its Salt Lake facility or what happened to the tire following the accident; and Prime cannot demonstrate it had any formal preservation or retention policy for its equipment, like tires, that may have caused an injury. These circumstances create a fact question on bad faith, necessitating a jury determination.

Van Winkle v. Rogers, No. 22-30638 (Sept. 15, 2023).

A recent Fifth Circuit panel produced three opinions on an organizational-standing issue in Louisiana Fair Housing Action Center, Inc. v. Azalea Garden Props., LLC.

Top-notch legal-writing expert Ross Guberman wrote an insightful LinkedIn post about Judge Elrod’s distinction of authority in her dissenting opinion – I recommend you give it a read!

The Chitimacha Indian tribe owns a casino. The casino’s former CFO sued the tribe for allegedly violating his civil rights by reporting him to law enforcement. He sued in state court, the defendants removed, and the district judge both denied the CFO’s motion to remand and dismissed the case with prejudice, citing the tribe’s sovereign immunity.

The Fifth Circuit reversed, noting that the controlling statute (28 USC § 1447(c)) requires that a removed case “shall be remanded” if the court lacks subject matter jurisdiction. Because that language “admits of no exceptions,” it “requires remand even when the district court thinks it futile” (here, because the district court concluded that the same immunity problems would also bar state-court litigation against the tribe.

Further, the dismissal should not have been with prejudice–“it’s precisely because the jurisdiction-less court cannot reach the merits that it also cannot issue with-prejudice dismissals that would carry res judicata effect.” Montie Spivey v. Chitimacha Tribe of Louisiana, No. 22-30436 (Aug. 16, 2023).

In re Jefferson Parish involved a mandamus petition about the interplay between a putative class action (“Ictech-Bendeck“) with a 500-plaintiff mass action (“Addison“). The Fifth Circuit denied relief, as the opinion’s introduction deftly summarizes:

… This mandamus proceeding arose because the defendants object to the district court’s scheduling of a small group of Addison plaintiffs for trial before Ictech-Bendeck will finish its class certification process, which the defendants have repeatedly delayed.

Petitioners ask us to stop the Addison trial and to order the district court to rule on class certification in Ictech-Bendeck before allowing any further proceedings in Addison. Petitioners raise the novel theory that under Rule 23 of the Federal Rules of Civil Procedure, the filing of a putative class action bars any possible class members from reaching the merits of their own, separate suits until class certification proceedings conclude in the putative class action. …

… Rule 23 establishes a mechanism for plaintiffs to pursue their claims as a class. It does not cause the filing of a putative class action to universally estop all separate but related actions from proceeding to the merits until the class-certification process concludes in the putative class action, after years of motions practice.

No. 23-30243 (Aug. 24, 2023).

In Louisiana Fair Housing Action Center, Inc. v. Azalea Garden Properties, LLC, “a nonprofit entity with a mission to eradicate housing discrimination in Louisiana” sued when a “tester” used by that entity experienced allegedly unlawful behavior at an apartment complex.

A Fifth Circuit panel (notably, the same panel that found standing in the high-profile mifepristone case) found that the entity lacked standing, but offered three different analyses of that issue:

• The majority opinion found no cognizable injury had been pleaded, remanding with instructions to dismiss without prejudice;
• A concurrence offered additional thoughts about how cognizable injury could be established on remand (either with new allegations, or by adding individual plaintiffs);
• A dissent saw the standing issue as controlled by a 1982 Supreme Court case about a similarly situated housing nonprofit.

No 22-30609 (Sept. 14, 2023).