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Tag Archives: Fifth Circuit

The Adaptable (Appellate) Lawyer

Posted in Appellate Practice, Briefs, Motions, Procedure, Technology

I recently attended the 2011 State Bar of Texas Annual Meeting in San Antonio.  As mentioned here before, the Bar asked me to come back as a presenter this year.  It was quite an honor. My subject was e-filing in state and federal appellate courts.  In conjunction with my talk, I published a short article in… Continue Reading

Fifth Circuit Closed After Gustav

Posted in News & Politics

From his evacuation site in Montgomery, Alabama, my blogging colleague Tad Bartlett of The Bartlett Blawg reported that the Fifth Circuit will be closed following the passage of Hurricane Gustav.  As he wrote this morning: The U.S. Court of Appeals for the Fifth Circuit is officially closed September 2 & 3 (oral arguments for this week have… Continue Reading

Recap of Fifth Circuit En Banc Arguments

Posted in Oral Argument

Over at the relatively new Bartlett Blog, Tad Bartlett provides a blow-by-blow of the recent Fifth Circuit en banc arguments, including the In re Volkswagen venue case that’s generating a lot of discussion these days because it threatens the Marshall “rocket docket.” (See the recent discussion in Texas Lawyer and at the WSJ Law Blog.) … Continue Reading

The Fifth Circuit’s Practitioner’s Guide

Posted in Appellate Practice

One of my goals in creating this blog was to have it serve as a sort of "home page" for lawyers involved in Texas appeals by providing links to resources those folks are likely to need at some point in the appellate process.  For example, say you’re away from the office and need to double-check what TRAP 9.5 says about certificates… Continue Reading

Haynes Confirmed to 5th Circuit

Posted in News & Politics

The Tex Parte Blog is reporting that former Dallas district judge Catharina Haynes (pictured) has been confirmed to the United States Court of Appeals for the Fifth Circuit.  She joins Judge Jennifer Elrod (previously discussed here) as Baker Botts alumna recently taking seats on the court. One can’t help but notice that three of President Bush’s last four… Continue Reading

Expanding Grounds for Vacating Arbitration Awards

Posted in News & Politics

The U.S. Supreme Court heard argument in a particularly interesting and (I think) important case today.  In Hall Street Associates, L.L.C. v. Mattel, Inc. (06-989), the Court will decide whether contracting parties may agree to expand the grounds for vacating arbitration awards beyond those recognized under the Federal Arbitration Act.  The Fifth Circuit and others… Continue Reading

5th Circuit to AG: Stop Bringing Frivolous Appeals

Posted in Opinions & Judgments

In Charles v. Grief (No. 07-50537), the Fifth Circuit has affirmed the district court’s denial of a state official’s motion for summary judgment based on qualified immunity because the official’s immunity turned on fact issues.  What is remarkable about this decision is the following section from the circuit court’s opinion, which is worth quoting in… Continue Reading

E.D. Tex. Abused Discretion by Failing to Transfer Venue

Posted in Opinions & Judgments

In In re Volkswagen of America, Inc. (No. 07-40058), the Fifth Circuit has held that a district court sitting in the Eastern District of Texas, Marshall Division, abused its discretion by failing to transfer this product liability case to the Northern District of Texas, Dallas Division.  The Fifth Circuit granted mandamus relief, concluding that the… Continue Reading

Senate Confirms Elrod’s Fifth Circuit Nomination

Posted in News & Politics

The Tex Parte Blog is reporting that the Senate has confirmed 190th District Court Judge Jennifer Elrod’s nominationto the Fifth Circuit (discussed previously here).  As the post points out, there are some interesting contrasts between Elrod’s confirmation process and former Texas Supreme Court Justice Priscilla Owen’s.

Fifth Circuit Reverses Dismissal of Fraud Claim

Posted in Opinions & Judgments

In GWTP Investments, L.P. v. SES Americom, Inc., the Fifth Circuit has reversed in part the dismissal of plaintiff’s breach-of-contract and fraud claims.  Although the circuit court agreed that the statute of frauds precluded recovery on the alleged contract, it rejected the district court’s conclusion that the fraud claim was merely a "repackaged" contract claim… Continue Reading

Ex-Spouse Retains ERISA Retirement Benefits

Posted in Opinions & Judgments

In Kennedy v. Plan Administrator for DuPont Savings & Investment Plan, the Fifth Circuit has held that ERISA trumped a divorce decree purportedly divesting an ex-spouse of her interest in any "retirement plan, pension plan, or like benefit program existing by reason of [decedent's] employment."  The decedent never removed his ex-wife as the designated beneficiary, and… Continue Reading

Katrina Redux Times Two

Posted in Opinions & Judgments

As reported in Blawgletter, the Fifth Circuit handed down two more Katrina-related insurance decisions yesterday, reaching the same basic result as the case discussed here last week.  Arias-Benn v. State Farm Fire & Casualty Insurance Co. involved damage to refrigerators and freezers from post-storm putrefaction of their contents.  Chauvin v. State Farm Fire & Casualty… Continue Reading

Fifth Circuit Rejects Katrina Insurance Claims

Posted in Opinions & Judgments

In In re Katrina Canal Breaches Litigation, the Fifth Circuit has rejected several insurance policyholders’ attempts to obtain coverage for water damage caused by Hurricane Katrina, despite exclusions for damages caused by "flood," based on allegations that the inundation of water into the City of New Orleans resulted from the negligent design, construction, and maintenance… Continue Reading

How Binding Are the Fifth Circuit’s Erie Predictions?

Posted in Opinions & Judgments

Over at Law.com,appellate practitioner and How Appealing blogger Howard J. Bashman has this piece about the stare decisis effect of federal circuit court decisions predicting state law when intermediate state appellate courts have since reached a different result.  As cited in a law review article surveying the circuits’ various approaches to this issue, the Fifth… Continue Reading

Fifth Circuit Reverses Summary Judgment on Indemnity Claim

Posted in Opinions & Judgments

In Smith International, Inc. v. The Egle Group LLC, the Fifth Circuit has reversed in part the district court’s summary judgment on the plaintiff’s claims for breach of contract, negligence, and indemnity.  Although it agreed with the district court that the contract and negligence claims were time-barred under Texas law, the circuit court concluded that… Continue Reading

New Fifth Circuit Arbitration Decision

Posted in Opinions & Judgments

The Fifth Circuit recently issued a decision confirming an arbitration award in American Laser Vision v. Laser Vision Institute (No. 06-10260).  The losing party sought to vacate the award on grounds that the arbitrator exceeded his authority and manifestly disregarded the law. As noted over at Disputing, the decision breaks no new ground, but "is… Continue Reading

How Authoritative Is Wikipedia?

Posted in Opinions & Judgments, Technology

Authoritative enough for the Fifth Circuit, apparently.  Last week, in Exxon Mobil Corp. v. Commissioner (note 1), a circuit panel cited the online encyclopedia for its definition of the accounting term "accrue."  (Hat tip to Appellate Law &Practice.) Are internet-savvy clerks are showing their influence?  Should the Fifth Circuit rely on a wiki of uncertain… Continue Reading

Elrod Nominated to Fifth Circuit

Posted in News & Politics

As reported by Howard Bashman at How Appealing: President Bush has nominated Jennifer Walker Elrod to serve on the U.S. Court of Appeals for the Fifth Circuit:  Currently, Elrod serves as a state district judge in Houston.  She has been nominated to fill the vacancy created when Circuit Judge Patrick E. Higginbotham took senior status…. Continue Reading

Fifth Circuit Rejects Challenges to $71 Million Arbitration Award

Posted in Opinions & Judgments

In Apache Bohai Corp. v. Texaco China BV, the Fifth Circuit has rejected claims that an arbitrator exceeded his powers and manifestly disregarded the law in rendering an award exceeding $71 million. No surprise here, really.  Except in the most egregious of circumstances, arbitration awards can’t be busted.  No matter how well advised, clients have… Continue Reading