US Court of Appeals for the Fifth Circuit Opinions City of San Antonio, Texas v. Hotels.com, L.P. Docket: 16-50479 Opinion Date: November 29, 2017 Judge: Rhesa Hawkins Barksdale Areas of Law: Government & Administrative Law, Tax Law The hotel occupancy tax applies only to the discounted room rate paid by the online travel company (OTC) to the hotel. The Fifth Circuit vacated the district court's judgment in a class action asserting that the service fee an OTC charges for facilitating a hotel reservation was included in the "cost of occupancy", and thus subject to the municipalities' hotel occupancy tax ordinances. The court applied City of Houston v. Hotels.com, L.P., 357 S.W.3d 706, 707, and held that OTCs in this case were not liable because the only monetary amounts at issue in this class action were those not included in the scope of the hotel occupancy tax base. The Houston court explained that, under the plain meaning of the ordinance, the cost of occupancy was the amount for which three conditions were satisfied: the consideration at issue must have been paid or charged for the use or possession, or the right to use or possess, a hotel room; the amounts to be taxed must have been paid by the occupant of such room; and the amount to be taxed must have been paid to such hotel. Therefore, the court rendered judgment for the OTCs in this case.
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Louisiana Senator Seeks Review of Sexual Harassment Policies www.usnews.com/news/best-states/louisiana/articles/2017-11-29/louisiana-senator-seeks-review-of-sexual-harassment-policies Gov. Edwards to Talk Criminal Justice Overhaul in Washington www.usnews.com/news/best-states/louisiana/articles/2017-11-27/gov-edwards-to-talk-criminal-justice-overhaul-in-washington US Court of Appeals for the Fifth Circuit Opinions Cooper Industries, Ltd. v. National Union Fire Insurance Co. Docket: 16-20539 Opinion Date: November 20, 2017 Judge: Carolyn Dineen King Areas of Law: Insurance Law Cooper filed suit against National Union after the insurer denied a claim under a commercial-crime insurance policy. The Fifth Circuit affirmed the district court's take-nothing judgment against Cooper. Determining that Texas law governs the court's interpretation of the policy, the court held that Cooper suffered a "loss" only after it loaned the principal to Greenwood and Walsh and that Cooper did not "own" the funds when they were in the fraudsters' possession. Because these holdings were sufficient to preclude coverage, the court need not consider the parties' remaining contentions. Accordingly, the court dismissed National Union's cross-appeal. Vann v. City of Southaven Docket: 16-60561 Opinion Date: November 22, 2017 Judge: Jennifer Walker Elrod Areas of Law: Civil Rights, Constitutional Law Plaintiff filed suit under 42 U.S.C. 1983 after Jeremy W. Vann was shot and killed by police in a retail parking lot when he was maneuvering his car in an effort to escape. The district court granted summary judgment for the police officers and the city. The Fifth Circuit held that there were genuine disputed issues of material fact regarding Sergeant Logan's actions, and thus the court vacated the district court's grant of summary judgment to Logan. In this case, the central disputed fact was whether Logan ran to the opening and shot Vann to stop him from fleeing or whether Logan ran between the cars to get out of Vann's way and then shot Vann because Vann was going to hit him. The court affirmed the district court's judgment as to the remaining defendants. US Court of Appeals for the Fifth Circuit Opinions United States v. Guerra Pleitez Docket: 16-20570 Opinion Date: November 22, 2017 Judge: Edward C. Prado Areas of Law: Criminal Law Defendant pleaded guilty to conspiracy to engage in sex trafficking of children by force, fraud, or coercion. As part of his plea agreement, he agreed to pay restitution to the victims. After defendant's trial counsel was dismissed, but before his appellate counsel was appointed, the probation officer submitted a Fourth Addendum to defendant's presentence report (PSR) recommending a more onerous restitution award based on a new method of calculation. The Fifth Circuit held that the acceptance of an addendum to a PSR recommending a more onerous restitution award constitutes a critical stage. In this case, defendant was unconstitutionally deprived of the effective assistance of counsel during a critical stage of trial proceedings. Accordingly, the court vacated and remanded for further proceedings. EEOC v. BDO USA, LLP Docket: 16-20314 Opinion Date: November 16, 2017 Judge: Carl E. Stewart Areas of Law: Civil Procedure, Legal Ethics The Fifth Circuit withdrew its prior opinion and substituted the following opinion. The court vacated the district court's holding that production of a privilege log pursuant to an employment discrimination investigation was sufficient to establish that the attorney-client privilege protected BDO's withheld documents. The court held that by adopting the magistrate judge's recommendation, the district court erred when inverting the burden of proof, requiring that the EEOC prove that BDO improperly asserted the attorney-client privilege as to its withheld documents, and concluding that all communications between a corporation's employees and its counsel were per se privileged. The court remanded for a determination applying the correct attorney-client privilege principles and legal standards. In regard to the protective order, because the magistrate judge's incorrect application of the legal standard may have affected both her analysis of the allegedly disclosed communications and the breadth of the protections she imposed in her order, the court remanded so that BDO's request for protection may be considered under the proper legal standard for determining privilege. Motion Medical Technologies, LLC v. Thermotek, Inc. Docket: 16-11381 Opinion Date: November 14, 2017 Judge: Stephen Andrew Higginson Areas of Law: Business Law, Copyright, Intellectual Property The Fifth Circuit affirmed the district court's grant of judgment as a matter of law to defendants, concluding that federal law preempted ThermoTek's unfair competition claim and that ThermoTek failed to prove its damages for fraud. ThermoTek designs, manufacturers, and sells the VascuTherm system, which consists of a medical device and specially designed wraps that provide thermal and compression therapy. The court held that the district court did not abuse its discretion in reaching the preemption defense on the merits. On the merits, the court held that federal copyright and patent laws preempted the unfair-competition-by-misappropriation claim. US Court of Appeals for the Fifth Circuit Opinions Melton v. Phillips Docket: 15-10604 Opinion Date: November 13, 2017 Judge: Jennifer Walker Elrod Areas of Law: Criminal Law An officer who has provided information for the purpose of its being included in a warrant application under Hart v. O'Brien, 127 F.3d 424 (5th Cir. 1997), has assisted in preparing the warrant application for purposes of Jennings v. Patton, 644 F.3d 297 (5th Cir. 2011), and Hampton v. Oktibbeha County Sheriff Department, 480 F.3d 358 (5th Cir. 2007), and may be liable, but an officer who has not provided information for the purpose of its being included in a warrant application may be liable only if he signed or presented the application. Plaintiff filed suit under 42 U.S.C. 1983 against defendant after plaintiff was arrested for an assault committed by another man with the same first and last names. The Fifth Circuit reversed the district court's denial of summary judgment in favor of defendant and held that defendant was entitled to summary judgment even when construing all the facts in the light most favorable to plaintiff. The court reasoned that the connection between defendant's conduct and plaintiff's arrest was too attenuated to hold the deputy liable under the rule that the court reaffirmed or under any law that was clearly established at the time defendant filled out the incident report. US Court of Appeals for the Fifth Circuit Opinions Evans v. Davis Docket: 14-11099 Opinion Date: November 9, 2017 Judge: Carolyn Dineen King Areas of Law: Civil Rights, Constitutional Law, Criminal Law The Fifth Circuit affirmed the district court's denial of petitioner's claim that the cell phone found in the victim's home, and the subsequently discovered call records linking him to the scene of the murder, were obtained from an unconstitutional search conducted pursuant to a deficient warrant. The court rejected petitioner's defaulted Fourth Amendment claim and held that the evidence fell within the good faith exception to the exclusionary rule. In Louisiana, is Medicaid expansion fueling the opioid crisis? That's hard to prove. www.nola.com/politics/index.ssf/2017/11/louisiana_medicaid_opioids.html United States v. American Commercial Lines, LLC Docket: 16-31150 Opinion Date: November 7, 2017 Judge: Stephen Andrew Higginson Areas of Law: Admiralty & Maritime Law After a tugboat collided with an oil-filled barge and caused 300,000 gallons of oil to spill in the Mississippi River, the United States filed suit against ACL, the statutorily-defined responsible party under the Oil Pollution Act (OPA), 33 U.S.C. 2704(a), seeking a declaration that ACL was liable for all removal costs and damages, and to recover costs that it incurred. The Fifth Circuit affirmed the district court's grant of summary judgment in favor of the United States and final judgment ordering ACL to pay the United States $20 million. The court held that ACL failed to establish that it was entitled to the third-party defense because the conduct that caused the spill occurred "in connection" with DRD's contractual relationship with ACL. The court also held, in the alternative, that ACL was not entitled to OPA's general limit on liability because DRD's conduct fell within the exception from limited liability for spills proximately caused by gross negligence, willful misconduct, or federal regulatory violations. US Court of Appeals for the Fifth Circuit Opinions United States v. Gibson Docket: 15-20323 Opinion Date: November 7, 2017 Judge: Stephen Andrew Higginson Areas of Law: Criminal Law The Fifth Circuit affirmed defendants' convictions for conspiracy to defraud Medicare, pay unlawful kickbacks, and launder money. The court held that the evidence was sufficient to support the convictions; there was no merger of the money laundering promotion conspiracy with the health care fraud conspiracy because the two counts were distinct conspiracies, neither of which had as an element any overt act that could have overlapped to create a merger problem; the district court did not commit reversible error in the minor limitation of one cross-examination; the district court properly admitted a co-defendant's out-of-court confession over a Bruton objection; the district court did not err by giving a deliberate ignorance jury instruction; and there was no merit in one of the defendant's restitution objections. Finally, the cumulative error doctrine did not apply in this case. Wildman v. Medtronic, Inc. Docket: 17-50010 Opinion Date: October 31, 2017 Judge: Costa Areas of Law: Products Liability Plaintiff filed suit alleging breach of express warranty under Texas law, after a Medtronic device implanted in his back to relieve pain did not last as long as the company promised. The Fifth Circuit held that the warranty on Medtronic's website goes beyond what the FDA considered and thus the narrow breach of express warranty claim plaintiff asserted was not preempted by the FDA regulation. The court explained that a verdict finding that Medtronic misled consumers like plaintiff in making this representation would not undermine any FDA finding concerning the safety of the device. Rather, it would be enforcing a duty that also exists under federal law: to not make misleading representations about the device. To escape such liability, Medtronic would not need to redesign the device, but only to limit its warranties to those approved by the FDA. Accordingly, the court reversed and remanded for further proceedings. The suspect told police ‘give me a lawyer dog.’ The court says he wasn’t asking for a lawyer. www.washingtonpost.com/news/true-crime/wp/2017/11/02/the-suspect-told-police-give-me-a-lawyer-dog-the-court-says-he-wasnt-asking-for-a-lawyer/?utm_term=.91d99d651760 US Court of Appeals for the Fifth Circuit Opinions Villegas-Sarabia v. Sessions Dockets: 15-60639, 15-50993 Opinion Date: October 31, 2017 Judge: Jacques Loeb Wiener, Jr. Areas of Law: Immigration Law In these consolidated appeals, petitioner and his father sought review of the BIA's holding that petitioner was inadmissible to the United States and ineligible to adjust his citizenship status because his conviction for misprision of a felony is a crime involving moral turpitude. Furthermore, the government challenged two aspects of the district court's decision. The Fifth Circuit affirmed the BIA's order in the first appeal and denied the petition for review, holding that the BIA did not err in holding that misprision of a felony is a crime of moral turpitude. Although the district court correctly held that the residency requirements of 8 U.S.C. 1401 and 1409 violate equal protection, the court reversed the district court's judgment that petitioner is a United States citizen under a constitutional reading of those statutes in light of the limited remedy the Supreme Court announced for that violation. |
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