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”

Sixth Circuit Sorts Out Waiver, Forfeiture, and Invited Error in Criminal Sentence Appeal

In United States v. Montgomery, No. 20-1201 (6th Cir. May 24, 2021), a Sixth Circuit panel tries to bring clarity to the distinction between forfeiture and waiver in an appeal of a sentencing error. “The difference between waiver and forfeiture has long bedeviled lawyers and judges alike. Lawyers often split the difference, using the termsContinue reading “Sixth Circuit Sorts Out Waiver, Forfeiture, and Invited Error in Criminal Sentence Appeal”

Plaintiff That Let Fed. R. Civ. P. 12(b)(1) Procedural Error Slip Forfeits Subject-Matter Jurisdiction Under Doctrine of Party Presentation, Holds Eleventh Circuit

In PDVSA US Litig. Trust v. Lukoil Pan Americas, LLC,.No. 19-10950 (11th Cir. Oct. 18, 2021), the plaintiff-appellant failed to raise its best argument on appeal – that the district court decided the central legal issue on the merits on a Fed. R. Civ. P. 12(b)(1) motion to dismiss – and thus loses under theContinue reading “Plaintiff That Let Fed. R. Civ. P. 12(b)(1) Procedural Error Slip Forfeits Subject-Matter Jurisdiction Under Doctrine of Party Presentation, Holds Eleventh Circuit”

Defendant Did Not Forfeit Affirmative Defenses by Failing to Answer Second Amended Complaint, Holds Ninth Circuit

In KST Data, Inc. V. Enterprise Servs. LLC, No. 19-55422 (9th Cir. Nov. 17, 2020), the Ninth Circuit holds that the district court erred in granting summary judgment sua sponte in a contact case when it denied the defendant the opportunity to argue its affirmative defenses. “Defendant Enterprise Services, LLC (‘ES’) entered into a contractContinue reading “Defendant Did Not Forfeit Affirmative Defenses by Failing to Answer Second Amended Complaint, Holds Ninth Circuit”