Fifth Circuit

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497417651327Possible shift

In 2014, the ABA Journal called the Fifth Circuit the “nation’s most divisive, controversial and conservative appeals court”. Liberal blog Jezebel deemed it “exceedingly conservative”. Even The Wall Street Journal described the court this year as “conservative-leaning”.

But in a recent case over limits on voting rights, the court ruled for the left-leaning opponents of the restrictions. And last week, the court sitting en banc voted 11-5 to revive a $250+ million class action. Torres v. S.G.E. Management, L.L.C., No. 14-20128 (5th Cir. Sept. 30, 2016) (en banc).

Has the court’s center of gravity shifted?Continue Reading A New Day in the Fifth Circuit?

imageA tough clause to beat

A little over two years ago, the Supreme Court held that judges must enforce forum-choice clauses in the absence of “extraordinary” reasons “unrelated to the convenience of the parties”. Atlantic Marine Construction Co., Inc. v. United States District  Court for the Western District of Texas, 134 S. Ct. 568, 580 (2013).

On the day that  the 9-0 Court handed down Atlantic Marine, I wrote that it “will bring joy to firms that put [the] clauses in their contracts in hopes of making lawsuits too costly to pursue.”

Has the case borne out my forecast of joy?

Yes. Yes indeed.
Continue Reading The Value of Forum-Choice Clauses

Boycott SignLeegin as wrecking ball?

Since the Supreme Court struck down an almost century-old rule of per se antitrust liability in Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877 (2007),* defense lawyers have tried to turn a single sentence from Leegin into a per-se category killer.

The effort presents high stakes, principally because per se cases have several advantages over their rule-of-reason cousins. The former are simpler, cost millions of dollars less to work up and try, and have greater odds of success with a judge or jury. The per se rule:

  • does not require an economist to opine about the relevant product and geographic markets;
  • obviates the need to prove that the defendants had market (or monopoly) power or that their conduct was anticompetitive;
  • simplifies proof of damages; and
  • precludes defendants from claiming, and presenting evidence, that their agreement enhanced competition.

You would expect a kindly hearing from the Fifth Circuit — a court that, despite President Obama’s six years of judicial appointments, still counts twice as many Republican (10) as Democratic (5)  appointees in active service. But would the court drink the Kool-Aid?

The court answered on November 25. The panel gave a resounding no.Continue Reading The Future of Per Se Antitrust Liability

The Macondo spill also spawned securities fraud claims
The Macondo spill also spawned securities fraud claims

Modest decision

In Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), a 5-4 majority — over an extraordinary joint dissent by Justices Ginsburg and Breyer — had to work hard to make a modest ruling. The Court held that plaintiffs seeking class treatment under Rule 23(b)(3) sometimes may have to plausibly link their theory of liability (the misconduct that caused damages) to the theory of class-wide damages (the estimate of the damages flowing from the misconduct) in order to obtain class certification.

I say emphatically that the Court did not hold that any plaintiff class seeking certification under Rule 23(b)(3) must prove damages on a class-wide basis. It said only that if a class cannot obtain class certification without establishing class-wide damages, then by golly it must show that it can establish class-wide damages.

I should know; I briefed and argued the case for the plaintiff class.
Continue Reading Fifth Circuit Misapplies Comcast, Affirms Class Anyway

ContractKeys to the court house 

The contingent-fee option enables a claimant who has a valuable claim but can't afford hourly fees to hire a lawyer. He pays with a promise to share his recovery with the lawyer in return for the lawyer's sharing the many risks of pursuing a claim — including the risk of…