Louisiana Supreme Court Opinions
Hidden Grove, LLC v. Brauns

Docket: 2022-C-00757
Opinion Date: January 27, 2023
Judge: Crichton
Areas of Law: Civil Procedure, Contracts, Real Estate & Property Law

This case arose from a dispute regarding the excavation of lots located in the The Grove Subdivision between plaintiff Hidden Grove LLC (“Hidden Grove”), the developer of The Grove, and homeowner defendants Richard and Lisa Brauns (the Braunses). In 2011, the Braunses purchased a home located on Lot 14 of The Grove from a third party not involved in this litigation. The next day, the Braunses purchased Lot 15 from Hidden Grove for $100,000. They also acquired a right of first refusal to purchase Lots 16 and 17. The surface elevations of Lots 16 and 17 were eight feet higher than that of Lot 15. Because the Braunses intended to add on to their home and build a swimming pool on Lot 15, they sought to lower the elevation of Lots 16 and 17 to match the elevation of the lots previously purchased. Hidden Grove agreed the Braunses could lower the elevation of Lots 16 and 17, at their own expense. Before the parties executed a written agreement setting forth the engineering specifications for the excavation, work began in January 2013 on oral permission of Hidden Grove. In June 2013, after the excavation was near completion, disputes arose between the parties, specifically as to whether the Braunses were required to extend the retaining wall onto Lots 16 and 17. When Richard Brauns told Hidden Grove that the wall would terminate at the boundary of Lot 15 and 16, Hidden Grove ordered the Braunses to stop work and “get off the property.” Hidden Grove filed suit against the Braunses alleging breach of contract and requesting specific performance of concluding the excavation and construction of a retaining wall through the backs of Lots 16 and 17. The Louisiana Supreme Court granted review in this matter to review the court of appeal’s determination that Hidden Grove could not assert a claim for enrichment without cause under Civil Code article 2298 for failure to establish the “no other remedy at law” element of the claim. The Court concluded the court of appeal erred and remanded the matter to the court of appeal for consideration of pretermitted issues.

Read Opinion

USA v. Wright

Docket: 21-40849
Opinion Date: January 18, 2023
Judge: Rhesa Hawkins Barksdale
Areas of Law: Constitutional Law, Criminal Law

At issue is whether Defendant was seized in violation of the Fourth Amendment when an officer, with emergency lights engaged, pulled behind Wright’s parked vehicle, and he did not attempt to flee or terminate the encounter but failed to comply fully with the officer’s commands. The district court, at the end of an evidentiary hearing, however, denied Defendant’s motion to suppress, concluding erroneously that the Terry stop was initiated instead at a later point in the encounter.
 
The Fifth Circuit, while retaining jurisdiction over the appeal, remanded to the district court for it, based on the record developed at the suppression hearing, to prepare expeditiously written findings of fact and conclusions of law on whether the seizure at the earlier point in time was in violation of the Fourth Amendment. The court explained that Defendant not complying fully with some of the Officer’s commands was improper, to say the least, but his behavior does not show defiance of the Officer’s authority. Defendant sufficiently submitted to the show of authority because he objectively appeared to believe he was not free to leave, and he did not attempt to flee, nor terminate the encounter. The court further explained that because the district court’s findings and conclusions turn instead on events occurring after the Terry stop, the court is unable to deduce from them whether the district court concluded the totality of the circumstances prior to the Officer’s pulling behind Wright’s vehicle provided reasonable suspicion justifying the stop.

Read Opinion

In re: LA Pub Svc Comm

Docket: 22-60458
Opinion Date: January 18, 2023
Judge: Patrick E. Higginbotham
Areas of Law: Energy, Oil & Gas Law, Government & Administrative Law

The Louisiana Public Service Commission (“LPSC”) petitioned the Fifth Circuit for a writ of mandamus compelling the Federal Energy Regulatory Commission (“FERC”) to resolve several of its complaints before the agency related to a ratemaking dispute with System Energy Resources, Inc. (“SERI”), operator of the Grand Gulf Nuclear Station.
 
The Fifth Circuit concluded that FERC has yet to provide the court with sufficient explanation for its delay despite ongoing irreparable harm to consumers. Accordingly, the court ordered FERC to provide the court—within 21 days—with a meaningful explanation for the length of time the Commission takes for final action in Section 206 complaint proceedings, including those at issue here.

Read Opinion

US Court of Appeals for the Fifth Circuit Opinions
Hanover Ins v. Binnacle Development

Docket: 21-40662
Opinion Date: January 12, 2023
Judge: Leslie H. Southwick
Areas of Law: Contracts, Real Estate & Property Law, Zoning, Planning & Land Use

This dispute involves three construction projects (the “Projects”) in Galveston County, Texas. Defendants, Binnacle Development, Lone Trail Development, and SSLT, are land developers. Each developer contracted with R. Hassell Properties, Inc. to complete paving and infrastructure projects in Galveston County Municipal Utility District (“MUD”) No. 31. The three Hassell contracts were form MUD contracts created by MUD attorneys. Each contract stated that it was “for Galveston County Municipal Utility District No. 31.” Hanover subsequently sued the developers in federal court to recover the contract balances on the Projects. The liquidated-damages clause would, if enforced, amount to an offset of $900,000. Both parties moved for summary judgment. The district court concluded that because no district is a party to the contracts at issue, the economic disincentive provision from the Water Code does not apply. On the second issue, the district court found that the damages clauses in the contracts constitute an unenforceable penalty. The court granted summary judgment for Hanover.
 
The Fifth Circuit affirmed. The court held that Section 49.271 allows “economic disincentive” clauses only in contracts where a district is a contracting party. Because no district is party to the Hassell contracts, they cannot incorporate “economic disincentive” clauses permitted under the Texas Water Code. The court also wrote it would not disturb the district court’s finding that the clause is an unenforceable penalty under Texas law.

Read Opinion

US Court of Appeals for the Fifth Circuit Opinions
USA v. Stark

Docket: 22-40557
Opinion Date: January 9, 2023
Judge: Per Curiam
Areas of Law: Constitutional Law, Criminal Law

Defendant challenged the district court's denial of his request for an adjustment to a restitution order. Defendant claimed that the $1,400 stimulus payment he received under the American Rescue Plan was exempt from levy and that any payment would violate the Taking Clause.

The Fifth Circuit affirmed the district court's denial of Defendant's request to adjust his restitution order. In so holding, the court held that the stimulus payment does not meet any exception and that he was required to apply the complete payment towards any restitution he owed.

Read Opinion

Shrimpers v. United States Army Corps

Docket: 21-60889
Opinion Date: January 5, 2023
Judge: King
Areas of Law: Energy, Oil & Gas Law, Environmental Law, Government & Administrative Law

Petitioners Shrimpers and Fishermen of the RGV, Sierra Club, and Save RGV from LNG (collectively, “Petitioners”) challenge the issuance of a Clean Water Act (“CWA”) permit by the U.S. Army Corps of Engineers (the “Corps”). Petitioners allege that the Corps’ permit issuance violated the CWA and its implementing regulations.
 
The Fifth Circuit denied the petition for review, holding that the Corps approved the least environmentally damaging practicable alternative presented before it during the permitting process and did not act arbitrarily in its evaluation of pipeline construction impacts and mitigation efforts. The court explained Petitioners’ first set of arguments centers on the Corps’ estimation that restoration will occur within one year. They state that the Corps did not consider the full construction period when quantifying the duration of impacts, which they allege is improper. However, they supply no evidence that the construction period must be, or even that it typically is, included when assessing whether impacts are temporary.
 
Further, the Corps’ analysis also comports with the EIS, which estimates that herbaceous vegetation will regenerate “within 1 to 3 years.” The EIS estimation necessarily includes the finding that vegetation may revegetate in one year, as the Corps concluded. Finally, the EPA feedback Petitioners relied upon does not consider the approved compensatory mitigation plan or the special conditions of the permit because the comments are from 2015 and 2018— well before the current permit (and even the original permit) was approved. The Corps considered this feedback and aligned its ultimate approach with the EPA’s recommendations.

Read Opinion

US Court of Appeals for the Fifth Circuit Opinions
In re: Grand Jury Subpoena

Docket: 21-30705
Opinion Date: December 28, 2022
Judge: Leslie H. Southwick
Areas of Law: Constitutional Law, Criminal Law, Health Law, Legal Ethics

An individual and an advocacy group seek to appeal from the denial of a motion to quash two grand jury subpoenas and an order compelling compliance with one of them. There is no jurisdiction for appeals challenging a grand jury subpoena for production of documents unless (1) the appellant has been held in contempt, or (2) a client-intervenor asserts that documents in the possession of a subpoenaed, disinterested third party are protected by attorney-client privilege.
 
The Fifth Circuit dismissed the appeal explaining that neither exception applied. The court explained that the subpoenaed documents are in the hands of Appellants. They are interested third parties in that they are being investigated for witness tampering. They have a direct and personal interest in suppressing the documents that could potentially corroborate the witness tampering accusation. Consequently, Appellants obviously have “a sufficient stake in the proceeding to risk contempt by refusing compliance.” Accordingly, the court wrote it lacks jurisdiction over the appeal, and Appellants must either comply with the subpoena or be held in contempt to seek the court’s review.

Read Opinion

Louisiana Supreme Court Opinions
George v. Progressive Waste Solutions of Louisiana, et al.

Docket: 2022-CC-01068
Opinion Date: December 9, 2022
Judge: Crichton
Areas of Law: Civil Procedure, Personal Injury

Plaintiff Walter George was standing at the roadside of his home in Houma, Louisiana, at the same time defendant Progressive Waste Solutions of La., Inc. (“Progressive”) was picking up garbage on plaintiff’s street. While plaintiff was picking remnants of garbage left behind, he was struck by the hydraulic arm of a garbage truck and sustained injuries. Plaintiff and his wife Janie petitioned for damages against Progressive and ABC Insurance Company. Champion Medical Center entered into a “Professional Service Agreement” (“agreement”) with Ascendant Healthcare (“company”), which identified itself in this agreement as being in “the business of arranging for the provision of professional medical services to persons whose health care costs are paid by liability insurance companies and/or attorneys that enter into arrangements with [Ascendant] for the provision of such services....” The agreement also stated that “[p]rovider agrees and hereby appoints Company as its agent for purposes of filing a medical lien for the services rendered by Provider. Plaintiff’s former counsel at the law firm of Spagnoletti & Company executed a “Letter of Guaranty and Protection.” The document, signed by Marcus Spagnoletti only, identified “the undersigned attorney and law firm” as the “GUARANTOR,” “ASCENDANT HEALTHCARE, LLC” as the “Company,” and the patient as Walter George (who received medical treatment resulting from an “ACCIDENT” in 2015). After the parties engaged in initial discovery, defendant Progressive filed a Motion in Limine on March 10, 2020, seeking to exclude or strike the medical bills related to plaintiff’s surgery and charged to Ascendant Healthcare. Defendant asserted the collateral source rule did not apply for these charges because they were "simply amounts charged," and plaintiff has not diminished his patrimony in order to receive his medical care. The motion was ultimately granted, but the Louisiana Supreme Court reversed. "In the absence of any evidence that plaintiff is not liable for the full billed medical charges in this matter, defendant cannot benefit from any reduction as a result of the subject medical factoring agreement." The matter was remanded for further proceedings.

Read Opinion

​Louisiana passes all three Constitutional Amendments


www.houmatimes.com/news/louisiana-passes-all-three-constitutional-amendments/

Succession of Willie Clyde Burns

Docket: 2022-C-00263
Opinion Date: December 9, 2022
Judge: Jefferson D. Hughes, III
Areas of Law: Family Law, Trusts & Estates

The decedent Willie Clyde Burns married Silver Ruth Cooper in 1959. The couple lived in Claiborne Parish, Louisiana and had three children. A divorce petition was filed in 1966 in Arkansas, captioned “Sybia Ruth Burns vs. W. C. Burns.” A final judgment of divorce was rendered on August 26, 1966 by the Arkansas court. Willie filed a divorce petition in Claiborne Parish in 1967, and the petition was served on Silver, captioned “W.C. Burns (Col.) vs. Sylvia Ruth Burns.” There was no judgment of final divorce rendered in this case. Silver went on to marry Welcome Boyd in 1968. Willie went on to marry Annie Bradley in 1970. Annie testified at trial that at the start of their marriage she and Willie had no assets and that anything Willie owned at the time of his death was acquired during their marriage. The couple was married for 45 years and had two children. Willie died intestate in 2015. Annie petitioned to open Willie’s succession and appoint an administratrix. Silver filed a Petition in Intervention in which she sought to be named Willie’s surviving spouse as she was never lawfully divorced from him. In support of her position, Silver provided a report by a forensic document examiner who concluded that the signatures on the documents of both divorce proceedings did not belong to Silver. She also testified that she never went by the names Sybia or Sylvia. The trial court granted the petition to intervene, declared the Arkansas divorce invalid, and recognized Silver as the legal wife of Willie at the time of his death. In addition, the trial court found that Annie was a good faith putative spouse based on Annie’s testimony that Willie told her he was divorced. The trial court then said that the estate would be divided according to the formula in Prince v. Hopson, 89 So.2d 128 (La. 1956), allocating one-fourth of the community to the legal spouse, one-fourth to the putative spouse, and the decedent’s one half to his heirs. The Lousiana Supreme Court reversed the trial court's division of the community, finding that as a good faith putative spouse, Annie had an undivided one-half interest in the community. Willie’s five children were to divide equally his undivided one-half interest in the community, subject to Annie’s usufruct.

Read Opinion

US Court of Appeals for the Fifth Circuit Opinions
USA v. Thompson

Docket: 21-60535
Opinion Date: December 5, 2022
Judge: Per Curiam
Areas of Law: Criminal Law

Defendant pleaded guilty to possessing a firearm after a felony conviction and was sentenced under 18 U.S.C. Section 924(e), the Armed Career Criminal Act (ACCA), to a mandatory minimum of 180 months in prison. He appealed, arguing that his prior Mississippi convictions for burglary do not qualify as crimes of violence under the ACCA and that the convictions, which occurred when he was a minor, are invalid because the juvenile court never properly transferred jurisdiction to the circuit court. The Government disagreed. It also moved to dismiss based on a waiver of appeal in Defendant’s plea agreement.
 
The Fifth Circuit concluded that Defendant’s arguments are without merit. Thus, the court pretermitted the waiver issue. The court also declined to consider an argument Defendant first raised in his reply brief. Accordingly, the court affirmed the judgment of the district court and denied the Government’s motion to dismiss.

Read Opinion

US Court of Appeals for the Fifth Circuit Opinions
Sanare Energy v. Petroquest

Docket: 21-20677
Opinion Date: November 29, 2022
Judge: Don R. Willett
Areas of Law: Bankruptcy, Civil Procedure, Energy, Oil & Gas Law

Appellant Sanare Energy Partners, L.L.C. agreed to purchase a mineral lease and related interests from Appellee PetroQuest Energy, L.L.C. Later, PetroQuest filed bankruptcy, and Sanare filed an adversary suit in that proceeding. Sanare argued that the lack of certain third-party consents rendered PetroQuest liable for costs associated with some “Assets” whose transfer the sale envisioned. The bankruptcy court and the district court each disagreed with Sanare.
 
The Fifth Circuit affirmed. The court explained that the Properties are “Assets” under the PSA, including section 11.1, even if the Bureau’s withheld consent prevented record title for the Properties from transferring to Sanare. This conclusion is plain from the PSA’s text, which excludes Customary Post-Closing Consents such as the Bureau’s from the category of consent failures that alter the parties’ bargain. Consent failures that do not produce a void-ab-initio transfer also do not alter the parties’ bargain, so the Agreements, too, are Assets under the PSA’s plain text.

Read Opinion

​
USA v. Davis

Docket: 21-10996
Opinion Date: November 15, 2022
Judge: Stuart Kyle Duncan
Areas of Law: Constitutional Law, Criminal Law, White Collar Crime

Defendant was convicted of numerous wire fraud and money-laundering charges arising from a fraudulent scheme to cause the Department of Veterans Affairs to pay over $71 million in GI-Bill funding to his trade school. Defendant raised several challenges to his convictions and his sentence.
 
The Fifth Circuit affirmed in nearly all respects, except that it vacated the forfeiture order and remanded it for further proceedings. The court held that Defendant fails to show the evidence was insufficient to allow a rational jury to convict him on the money-laundering counts. Further, the court concluded that conclude that the indictment was not faulty and the district court did not err in declining to order a bill of particulars.
 
Moreover, the court explained that illegally provided services that could have “hypothetically” been provided in a “legal manner”—like Defendant’s operation of the school—implicate the second definition of proceeds under Section 981(a)(2)(B), under which a defendant may deduct “the direct costs incurred in providing the goods or services.” The focus of any Section 981(a)(2) analysis is the underlying criminal conduct, not the crime itself.
 
That subsection further provides that Defendant “shall have the burden of proof with respect to the issue of direct costs” and also that those costs “shall not include any part of the overhead expenses of the entity providing the goods and services, or any part of the income taxes paid by the entity.” Therefore the court remanded for determining whether Defendant can prove any offset under the terms of Section 981(a)(2)(B).

Read Opinion

Louisiana Supreme Court Opinions
Louisiana v. Gleason

Docket: 2021-K-01788
Opinion Date: November 10, 2022
Judge: Griffin
Areas of Law: Constitutional Law, Criminal Law

Defendant Kenneth Gleason was convicted for the first-degree murder of Donald Smart, for which he received a life sentence. After giving notice he intended to appeal, Gleason died in prison. The court of appeal dismissed the appeal, vacated the conviction, and remanded the matter to the trial court with instructions to dismiss the indictment. The State appealed, arguing the Louisiana Supreme Court should overrule precedent adopting the abatement ab initio doctrine. To this, the Supreme Court concurred, finding that “[t]o abate a conviction would be as to say there has been no crime and there is no victim. Accordingly, we abandon the doctrine and hold that when a defendant dies during the pendency of an appeal, the appeal shall be dismissed and the trial court shall enter a notation in the record that the conviction removed the defendant’s presumption of innocence but was neither affirmed nor reversed on appeal due to the defendant’s death.”

Read Opinion

US Court of Appeals for the Fifth Circuit Opinions
Golden Glow v. City of Columbus, MS

Docket: 21-60898
Opinion Date: November 8, 2022
Judge: Edith H. Jones
Areas of Law: Civil Rights, Constitutional Law

Golden Glow Tanning Salon filed a civil rights suit against the City of Columbus, which shut down its business for seven weeks at the outset of the Covid-19 pandemic. The district court granted the City’s motion for summary judgment. Subsequent experience strongly suggests that draconian shutdowns were debatable measures from a cost-benefit standpoint, in that they inflicted enormous economic damage without necessarily “slowing the spread” of Covid-19. Golden Glow contends that the City Ordinance created an arbitrary distinction between tanning salons and liquor stores that bore no rational relationship to public health given the salon’s ability to operate safely and without customer contact
 
The Fifth Circuit affirmed. The court wrote that the proffered reason is not arbitrary. Further, this conclusion is not altered by Golden Glow’s contention that it could have maintained a safer environment than could liquor stores. Under rational basis review, overinclusive and underinclusive classifications are permissible, as is some resulting inequality. Further, here, the closure of the salon constitutes a deprivation of some economically productive uses (i.e., the uses forbidden by the Ordinance’s Section 2). Nothing in the record supports the conclusion that the City Ordinance rendered the entire property “valueless.” The district court was correct to find that there had been no per se taking.

Read Opinion

Byrd v. Cornelius

Docket: 21-20654
Opinion Date: October 31, 2022
Judge: Clement
Areas of Law: Civil Rights, Constitutional Law, Education Law, Government & Administrative Law

Appellants, two police officers, arrested Plaintiff, a student, at a school basketball game. The district court denied summary judgment based on qualified immunity, finding a dispute of material fact regarding the events surrounding Plaintiff's arrest. The officers filed an interlocutory appeal challenging the district court’s decision.

The Fifth Circuit dismissed for lack of jurisdiction. The issues raised by Plaintiff create factual disputes that meet the required threshold to overcome Appellant's qualified immunity defense at this stage.

Read Opinion

USA v. Ferris

Docket: 22-50117
Opinion Date: October 25, 2022
Judge: Carl E. Stewart
Areas of Law: Criminal Law

Defendant appealed his conviction under Section 912, claiming that the district court erred in adopting the Government’s jury instructions. Defendant also appealed his sentence, arguing that the district court erred in applying the cross-reference provision in U.S.S.G. Section 2J1.4(c)(1).
 
The Fifth Circuit affirmed Defendant’s conviction under Section 912, but vacated the district court’s application of U.S.S.G. Section 2J1.4(c)(1) and remanded for resentencing. The court held that that the jury instruction was satisfactory, but the facts do not support the application of the cross-reference provision to the drug-trafficking sentencing guidelines. The court explained that the record fully support’s Defendant’s conviction under Section 912. (1) Defendant intentionally and falsely pretended to be an FBI agent doing fieldwork in Texas; (2) he completed numerous overt acts consistent with his FBI agent impersonation; and (3) he completed the impersonation and overt acts with the “intent to deceive to act differently than he would have acted absent the deception.” Thus, the district court did not abuse its discretion in denying Defendant’s desired jury instruction or reversibly misstate an element of his offense in its adoption of the Government’s.
 
However, the record fails to support the Government’s argument that Defendant attempted to traffic fentanyl. For the Government to prevail on its theory that Defendant’s false impersonation was done in the facilitation of violating Section 841(a), it must prove beyond a reasonable doubt that Defendant had the requisite state of mind to be guilty of that offense.

Read Opinion

Louisiana Supreme Court Opinions
Louisiana v. Pilcher

Docket: 2021-C-00856
Opinion Date: October 21, 2022
Judge: Jefferson D. Hughes, III
Areas of Law: Civil Procedure, Energy, Oil & Gas Law, Environmental Law, Real Estate & Property Law

In an issue of first impression for the Louisiana Supreme Court, was what prescriptive period, if any, was applicable to a citizen suit for injunctive relief pursuant to LSA-R.S. 30:16 suit. Justin Tureau instituted a citizen suit pursuant to LSA-R.S. 30:16, alleging that defendants drilled and operated numerous oil and gas wells on his property, or on adjacent property, as well as constructed and used unlined earthen pits. Specifically, Tureau alleged that said unlined pits were either never closed, or were not closed in conformance with environmental rules and regulations, including Statewide Order 29-B, L.A.C. 43:XIX.101, et seq, which, among other things, requires the registration and closure of existing unlined oilfield pits, as well as the remediation of various enumerated contaminants in the soil to certain minimum standards. The Supreme Court held that a LSA-R.S. 30:16 citizen suit was not subject to liberative prescription. The Court further found that, insofar as the petition alleges that defendants violated conservation laws, rules, regulations, or orders, the allegations were sufficient to defeat an exception of no cause of action. The Court therefore affirmed the appeals court ruling, which overruled defendants’ exceptions of prescription, overruled the exceptions of no cause of action, and remanded this case for further proceedings.

Read Opinion

Louisiana uses a ‘jungle primary’ for its elections. What does that mean?


www.pbs.org/newshour/politics/louisiana-uses-a-jungle-primary-for-its-elections-what-does-that-mean

US Court of Appeals for the Fifth Circuit Opinions
Jones v. Admin of the Tulane Educ

Docket: 21-30681
Opinion Date: October 11, 2022
Judge: Edith Brown Clement
Areas of Law: Civil Procedure, Class Action, Contracts, Education Law, Personal Injury

Two former students of Tulane University, on behalf of a putative class of current and former students, sued the University for failing to provide a partial refund of tuition and fees after Tulane switched from in-person instruction with access to on-campus services to online, off-campus instruction during the COVID-19 pandemic. The district court agreed with Tulane that the student's complaint should be dismissed for failure to state a claim.
 
The Fifth Circuit reversed and remanded. The court concluded that the claim is not barred as a claim of educational malpractice because the Students do not challenge the quality of the education received but the product received. Second, the court rejected Tulane’s argument that the breach-of-contract claim is foreclosed by an express agreement between the parties because the agreement at issue plausibly does not govern refunds in this circumstance. And third, the court concluded that Plaintiffs have not plausibly alleged that Tulane breached an express contract promising in-person instruction and on-campus facilities because Plaintiffs fail to point to any explicit language evidencing that promise. But the court held that Plaintiffs have plausibly alleged implied-in-fact promises for in-person instruction and on-campus facilities. Moreover, the court found that the Students’ alternative claim for unjust enrichment may proceed at this early stage. Finally, genuine disputes of material fact regarding whether Plaintiffs saw and agreed to the A&DS preclude reliance on the agreement at this stage. Thus, Plaintiffs have plausibly alleged a claim of conversion.

Read Opinion

Guenther v. BP Retr Accumulation

Docket: 21-20617
Opinion Date: October 7, 2022
Judge: Per Curiam
Areas of Law: Class Action, Constitutional Law, ERISA, Labor & Employment Law

BP Corporation North America Inc. (“BP America”) a Defendant-Appellee in this action, acquired Standard Oil of Ohio (“Sohio). BP America converted the Sohio Plan into a new plan called the BP America Retirement Plan (the “ARP”). The ARP was also a defined benefit plan that retained the formula used by the Sohio Plan to calculate its members’ pension distributions. BP America converted the ARP into the BP Retirement Accumulation Plan (the “RAP,” the conversion from the ARP to the RAP as the “Conversion,” and the date of the Conversion as the “Conversion Date”), the other Defendant-Appellee in this action. Plaintiffs-Appellees, two Sohio Legacy Employees, (the “Guenther Plaintiffs”) filed a class action complaint against the RAP and BP America.
 
Four years after the Guenther Plaintiffs filed their original complaint, Movant-Appellant, along with 276 other individuals (the “Press Plaintiffs”) moved to intervene in the Guenther Action “for the purpose of objecting” to the magistrate judge’s recommendation. Press Plaintiffs contend that the certified class in the Guenther Action inadequately represents their interests, and therefore, they have a right to intervene in this case.
 
The Fifth Circuit affirmed the district court’s ruling denying the intervention. The court held that the Press Plaintiffs cannot demonstrate that their interests diverge from those of the Guenther Plaintiffs in any meaningful way. Further, the Press Plaintiffs did not identify a unique interest of their own, they are unable to specify how a determination in the Guenther Action could have a future detrimental preclusive effect. The court wrote it is satisfied that the Press Plaintiffs will be adequately represented.

Read Opinion

US Court of Appeals for the Fifth Circuit Opinions
Adv Indicator v. Acadia Ins

Docket: 21-20092
Opinion Date: October 3, 2022
Judge: Per Curiam
Areas of Law: Civil Procedure, Contracts

Appellant Advanced Indicator and Manufacturing, Inc. claims its building was damaged by Hurricane Harvey’s winds. Advanced’s insurer, Acadia Insurance Company, determined that the damage to the building was caused by poor maintenance and routine wear and tear. When Acadia denied Advanced’s claim, Advanced sued. Advanced filed a motion to remand the case to state court
 
The district court granted Acadia’s motion and granted summary judgment on Advanced’s extra-contractual claims. The Fifth Circuit affirmed the district court’s denial of the motion to remand, reversed the grant of summary judgment on Advanced’s claims, and remanded the matter to the district court.
 
The court explained that Advanced’s argument is unavailing because it fails to consider Flagg’s command that “the district court must examine the plaintiff’s possibility of recovery against that defendant at the time of removal.” At the time of removal, then, it would have been proper for the district court to find that “there is no possibility of recovery by [Advanced] against an in-state defendant.” Accordingly, the differences between Sections 542A.006(b) and 542.006(c) are not material as long as the insurer elects to accept liability for the agent before removal. The court held that summary judgment was not warranted on Advanced’s breach of contract claim given the evidence Advanced has put forth. This conclusion requires the reversal of the district court’s dismissal of Advanced’s other claims.

Read Opinion

US Court of Appeals for the Fifth Circuit Opinions
June Medical Svcs v. Phillips

Docket: 22-30425
Opinion Date: September 21, 2022
Judge: E. Grady Jolly
Areas of Law: Civil Procedure, Constitutional Law

Following Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022), the State of Louisiana filed an “emergency Rule 60(b) motion to vacate permanent injunction” concerning the enforcement of Act 620, which requires physicians performing abortions to have “active admitting privileges” within thirty miles of the facility at which the abortions are performed. La. R.S. 40:1299.35.2(A)(2). It requested relief forthwith or, alternatively, relief within two days of filing its motion. Two days later, the district court denied the State’s motion. The State immediately filed an “emergency motion for reconsideration” and requested a ruling by the next day. The district court again denied the State’s motion.
 
The Fifth Circuit dismissed the appeal holding that the court lacks appellate jurisdiction. The court explained the district court’s orders cannot be read to have denied the underlying request for relief when the district court implicitly and explicitly stated its intent to defer a ruling on the matter. Further, the court reasoned that to have the “practical effect” of refusing to dissolve an injunction, the State must show that the orders have a “direct impact on the merits of the controversy.” The court noted that the district court’s orders did not touch the merits of the State’s underlying request for relief but, for the same reasons stated earlier, acted as the functional equivalent of a scheduling order. Lastly, the court held that the State has not shown it is entitled to mandamus.

Read Opinion

US Court of Appeals for the Fifth Circuit Opinions
NetChoice v. Paxton

Docket: 21-51178
Opinion Date: September 16, 2022
Judge: Andrew S. Oldham
Areas of Law: Constitutional Law

This case involves HB 20, a Texas statute that regulates large social media platforms. The law regulates platforms with more than 50 million monthly active users (“Platforms”), such as Facebook, Twitter, and YouTube. Tex. Bus. & Com. Code Section 120.002(b). In enacting HB 20, the Texas legislature found that the Platforms “function as common carriers are affected with a public interest, are central public forums for public debate, and have enjoyed governmental support in the United States.”  The platforms urged the Fifth Circuit to hold that the statute is facially unconstitutional and hence cannot be applied to anyone at any time and under any circumstances.
 
The Fifth Circuit vacated the preliminary injunction, explaining that the court rejects the idea that corporations have a freewheeling First Amendment right to censor what people say. The court explained that the Platforms’ attempt to extract freewheeling censorship right from the Constitution’s free speech guarantee. The Platforms are not newspapers. Their censorship is not speech. They’re not entitled to pre-enforcement facial relief. And HB 20 is constitutional because it neither compels nor obstructs the Platforms’ own speech in any way. The district court erred in concluding otherwise and abused its discretion by issuing a preliminary injunction.

Read Opinion

Louisiana Supreme Court Opinions
Carollo v. Louisiana Dept. of Transportation & Development

Docket: 2021-C-01670
Opinion Date: September 9, 2022
Judge: John L. Weimer
Areas of Law: Civil Procedure, Government & Administrative Law, Personal Injury

Certiorari was granted in this case to resolve a split in the decisions of the Louisiana courts of appeal regarding the relationship between La. C.C.P. art. 425 and the res judicata statutes, La. R.S. 13:4231 and 13:4232. Particularly, the Supreme Court considered whether Article 425 was an independent claim preclusion provision apart from res judicata such that identity of parties was not required to preclude a subsequent suit, or whether Article 425 merely referenced the requirements of res judicata and thus a claim could not be precluded unless it was between the same parties as a prior suit. After reviewing the law and the arguments of the parties, the Louisiana Supreme Court found Article 425 functioned simply as a measure that put litigants on notice at the outset and, during the course of litigation, all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation must be asserted. "Rather than have independent enforcement effect, Article 425 operates in tandem with and is enforced through the exception of res judicata. Because Article 425 is enforced through res judicata, all elements of res judicata–including identity of parties–must be satisfied for a second suit to be precluded."

Read Opinion