Fifth Circuit Holds That Busker Has Standing to File Pre-Enforcement First Amendment Challenge to Ban on Musical Performances for Money in Public Places

In Barilla v. City of Houston, No. 20-20535 (5th Cir. Sept. 10, 2021), a Fifth Circuit panel reverses dismissal on standing grounds of a First Amendment challenge to Houston’s ordinance clamping down on “bands, musicians, singers, mimes, and other artists who perform for gratuities on the sidewalk.” “Barilla challenges three City ordinances (collectively, the ‘BuskingContinue reading “Fifth Circuit Holds That Busker Has Standing to File Pre-Enforcement First Amendment Challenge to Ban on Musical Performances for Money in Public Places”

Expert Report Proffered by a Party in a Prior Case Is Not Automatically a “Party Admission” for Purposes of Fed. R. Evid. 801(d)(2)(C), Holds Fifth Circuit

In HTC Corp.  v. Telefonaktiebolaget LM Ericsson, No. 19-40566 (5th Cir. Aug. 31, 2021), the Fifth Circuit affirms exclusion of an expert report from a valuation expert who the defendant had used in prior litigation, holding that the prior expert’s testimony is inadmissible hearsay and not admissible as a party admission under Fed. R. Evid.Continue reading “Expert Report Proffered by a Party in a Prior Case Is Not Automatically a “Party Admission” for Purposes of Fed. R. Evid. 801(d)(2)(C), Holds Fifth Circuit”

“Home State” Exception to Class Action Fairness Act Jurisdiction Does Not Apply Where the “Primary Thrust” of the Case Is Liability Against an Out-of-State Defendant, Fifth Circuit Holds

In Madison v. ADT LLC, No. 21-90028 (5th Cir. Aug. 24, 2021), the panel holds that the district court should have disregarded the nominal in-state defendant when evaluating the “home state” exception to the Class Action Fairness Act (CAFA), 28 U.S.C. § 1332(d)(4)(B). It holds that primary defendants include those at whom a lawsuit isContinue reading ““Home State” Exception to Class Action Fairness Act Jurisdiction Does Not Apply Where the “Primary Thrust” of the Case Is Liability Against an Out-of-State Defendant, Fifth Circuit Holds”

Fifth Circuit Affirms Summary Judgment Where Plaintiff’s Lawyer Did Not Get an Electronic Notification of the Motion

In Rollins v. Home Depot USA, No. 20-50736 (5th Cir. Aug. 9, 2021), the Fifth Circuit affirms summary judgment in “a cautionary tale for every attorney who litigates in the era of e-filing.” The plaintiff’s lawyer missed the filing of a dispositive motion because “his computer’s email system placed that notification in a folder thatContinue reading “Fifth Circuit Affirms Summary Judgment Where Plaintiff’s Lawyer Did Not Get an Electronic Notification of the Motion”

Fifth Circuit Adheres to Granting Interlocutory Review of Denial of State-Action Immunity in Antitrust Cases Under Collateral Order Doctrine, Continuing Circuit Split

In Quadvest L.P. v. San Jacinto River Auth., No. 20-20447 (5th Cir. Aug. 5, 2021), a Fifth Circuit panel holds in a Sherman Act case that, despite every other circuit rejecting its view, it will accept interlocutory review of a defendant’s “entitlement to state-action antitrust immunity in a motion to dismiss” under the collateral orderContinue reading “Fifth Circuit Adheres to Granting Interlocutory Review of Denial of State-Action Immunity in Antitrust Cases Under Collateral Order Doctrine, Continuing Circuit Split”

Fifth Circuit Rebukes U.S. Attorney’s Office in Fed. R. Crim. P. 41(g) Action for Breaching Grand Jury Secrecy and Holding onto Documents Identified as Privileged

In Harbor Healthcare System, L.P. v. United States, No. 19-20624 (5th Cir. July 26, 2021), a per curiam panel of the Fifth Circuit takes aim at the government’s “callous disregard” of the plaintiff’s attorney-client privilege, reversing the district court’s dismissal of the plaintiff’s action for pre-indictment return of its privileged documents. Harbor was the subjectContinue reading “Fifth Circuit Rebukes U.S. Attorney’s Office in Fed. R. Crim. P. 41(g) Action for Breaching Grand Jury Secrecy and Holding onto Documents Identified as Privileged”

Fifth Circuit Panel Holds That 28 U.S.C. § 1631 Transfer Can Cure a Lack of Personal Jurisdiction

In Franco v. Mabe Trucking Co., No. 19-30316 (5th Cir. July 8, 2021), the Fifth Circuit joins other circuits that have held that 28 U.S.C. § 1631 can cure defective personal as well as subject-matter jurisdiction. But the panel split on the interaction between § 1631 and Louisiana’s “prescription” (limitations) law. A vehicular accident onContinue reading “Fifth Circuit Panel Holds That 28 U.S.C. § 1631 Transfer Can Cure a Lack of Personal Jurisdiction”

Judicial Internet Search into Possible Perjury Criticized by Fifth Circuit as “Improper,” But Ultimately Not a Basis for Recusal

In United States v. Brocato, No. 20-40624 (5th Cir. July 9, 2021) (per curiam), the panel affirms denial of a recusal motion, despite “that certain statements of the district court judge were ill-advised and certain actions of her staff were improper.” Defendants, a married couple who ran a lawn service business together, were convicted ofContinue reading “Judicial Internet Search into Possible Perjury Criticized by Fifth Circuit as “Improper,” But Ultimately Not a Basis for Recusal”

No Deference to Litigation-Conduct Waiver Holding Based on “Conclusory Assertions,” Holds Fifth Circuit

In Int’l Energy Ventures Mgt. v. United Energy Grp., No. 20-20221 (5th Cir. May 28, 2021), the Fifth Circuit reverses – on the case’s second appearance in that court – an order compelling arbitration, based on the plaintiff’s three-year “persistent pursuit of litigation.” “International Energy Ventures Management (‘IEVM’) sued United Energy Group (‘UEG’) more thanContinue reading “No Deference to Litigation-Conduct Waiver Holding Based on “Conclusory Assertions,” Holds Fifth Circuit”

Fifth Circuit Splits with Eleventh, Holds That Receipt of a Single Robotext in Violation of TCPA Creates Article III Standing

In Cranor v. 5 Star Nutrition, No. 19-51173 (5th Cir. May 26, 2021), the panel holds that even a single robotext in violation of the Telephone Consumer Protection Act of 1991 (“TCPA”) is analogous to a common-law public nuisance, and thus an injury to confers Article III standing. 5 Star Nutrition, an Austin-based nutritional supplementContinue reading “Fifth Circuit Splits with Eleventh, Holds That Receipt of a Single Robotext in Violation of TCPA Creates Article III Standing”