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Fifth Circuit Update: Preemption, Successor Liability and Fed Courts Final Exam

We now return you to our regularly scheduled law blog.

Wouldn't you know the week that work piles on, the Fifth Circuit does too. The court released lots of published opinions in the last week. In particular, if you're an administrative law junkie, or a fan of trying to sue the federal government, there will be several cases that float your boat.

If, however, you are an average Joe like me, never fear. We have sorted the ones that might interest the civil appellate practitioner.

  • If you ever drive into the side of a non-moving train that has been parked on the crossing too long, Elam v. Kansas City Southern (pdf) sets out which causes of action will survive preemption under the Interstate Commerce Commission Termination Act. (Negligence per se was, general negligence was not). Judge Benavides wrote the court's opinion.
     
  • Del Ray Battery Co. v. Douglas Battery Co. (pdf) involves a federal declaratory judgment action seeking declaratory relief, attorneys fees and experts fees that had been cut off when a state action had been nonsuited.  It reads like a fed courts final exam question involving mootness (it was not), the Rooker-Fedlman doctrine (no bar here), federal question jurisdiction (which was found), preemption of the Texas Solid Waste Disposal Act (it was not preempted). Judge King wrote the court's opinion.
     
  • Finally, Ford, Bacon & Davis LLC v. Travelers Ins. Co. In this case the "LLC" was all important because LLC was trying to piggy back off of Ford, Bacon & Davis, Inc.'s insurance coverage, arguing that the coverage transferred to LLC "as a matter of law" when it bought some of Inc.'s assets. Judge Prado wrote the court's opinion, rejecting the argument because the "product line" theory of successor liability on which the argument depends is not viable under Texas law. 

And in the interest of full disclosure, one of the reasons Ford, Bacon & Davis is so tasty is because it was my case. If you have occasion to deal with successor liability and insurance coverage issues, the opinion will be of use to you.

Copyright © 2021, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume I, Number 81
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About this Author

Kendall M. Gray, Antitrust Litigation Attorney, Andrews Kurth Law Firm
Partner

Kendall is a board certified civil appellate specialist who has represented clients in state and federal appellate courts such as the U.S. Supreme Court, the U.S. Courts of Appeal for the Fifth, Ninth, Tenth and Federal Circuits, the Supreme Court of Texas and many intermediate courts of appeal. His practice includes a variety of complex commercial, medical malpractice and toxic tort matters, as well as a particular focus in disputes involving employee benefits, managed care and ERISA. The disputes commonly require complex written and oral advocacy on such topics as ERISA preemption,...

713-220-3981
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