by
The Fifth Circuit denied Creative's petition for review of the Board's reversal of the ALJ's conclusion that Creative was not a "perfectly clear" successor and accordingly was within its rights to set initial terms and conditions of employment instead of bargaining with the incumbent union. The court held that Creative was not a perfectly clear successor where Creative's June 2 announcement of new terms was untimely and the majority of Creative's hoppers were not provided sufficient notice of the new terms. The court rejected Creative's argument that it did not violate its bargaining obligation because at the time Creative unilaterally set terms, the Union had not sent a bargaining demand. The court declined to require a union bargaining demand to trigger a perfectly clear successor's duty not to unilaterally set initial terms of employment. Finally, the court held that because Creative did not timely object to Acting General Counsel Lafe Solomon's authority to file the complaint, the court's review of any such argument was barred. View "Creative Vision Resources, LLC v. NLRB" on Justia Law

by
The Fifth Circuit previously remanded this case to the district court to determine whether the Government suppressed certain favorable evidence and whether any of the suppressed evidence was material (Cessa II). The district court then concluded that none of the suppressed evidence was material. The court held that the district court did not clearly err in making its materiality determination and thus reversal was not required. Accordingly, the court affirmed the judgment. View "United States v. Colorado Cessa" on Justia Law

Posted in: Criminal Law

by
The Fifth Circuit affirmed defendant's sentence for methamphetamine-related offenses. The court held that the district court did not clearly err by denying a mitigating-role adjustment under USSG 3B1.2 where defendant certainly understood that she was illegally transporting contraband into the United States and that she was being paid for her participation. The court also held that the district court did not impermissibly rely on her integral role to the exclusion of all else, and remand was not warranted where the district court need not weigh each USSG 3B1.2 factor on the record. View "United States v. Bello-Sanchez" on Justia Law

Posted in: Drugs & Biotech

by
Mainali filed suit against Covington for breach of contract, breach of the duty of good faith and fair dealing, fraud, and violations of the Texas Insurance Code and Texas Deceptive Trade Practices Act. The Fifth Circuit affirmed the district court's grant of summary judgment for Covington on all of Mainali's claims. The court rejected Mainali's contention that the appraisal award was incomplete because it excluded damage to items covered by the policy where Mainali cited nothing in the record to show that these items were not included. The court also held that Covington did not violate the Prompt Payment of Claims Act where Covington was not trying to avoid payment of the claim; it was invoking a contractually agreed to mechanism for assessing the amount it owed. View "Mainali Corp. v. Covington Specialty Insurance Co." on Justia Law

by
The Fifth Circuit affirmed the district court's grant of summary judgment in favor of Deutsche Bank in an action challenging a foreclosure sale. The court held that the district court did not err in holding that the Rooker-Feldman doctrine did not preclude review of the parties' claims; the court has jurisdiction to hear this appeal; the district court did not err by granting summary judgment to Deutsche Bank because the Vacating Order was void under Texas law and plaintiffs failed to cite any authority demonstrating that the Foreclosure Order was void rather than voidable; and Texas law provided plaintiffs an adequate procedure to challenge the Foreclosure Order and their due process rights were not violated. View "Burciaga v. Deutsche Bank National Trust Co." on Justia Law

by
The Fifth Circuit affirmed Defendant Kiekow, Uriarte, and Pierre's convictions for conspiracy to distribute or possess with intent to distribute cocaine. The court affirmed the denial of Pierre's motion for a new trial; affirmed Uriarte's sentence; but vacated Kiekow's sentence. The court held that the district court plainly erred by applying a two-level sentencing enhancement for maintaining a premises for the purpose of manufacturing or distributing a controlled substance under USSG 2D1.1(b)(12) (2012), because this enhancement did not exist during the period of the conspiracy, which ended around 2009. Rather than having an exposure of 97-121 as a level 30 offender, Kiekow faced a minimum exposure of 121 months and maximum exposure of 151 months as a level 32 offender. Because the plain error affected Kiekow's substantial rights by imposing a significant risk of a higher sentence, the court remanded for resentencing. View "United States v. Kiekow" on Justia Law

Posted in: Criminal Law

by
Adams and MJLM petitioned for review of the Board's order holding them liable for unfair labor practices in violation of the National Labor Relations Act, 29 U.S.C. 151 et seq. The Fifth Circuit denied the petition for review and granted the Board's cross-application for enforcement, holding that the record contained substantial evidence of antiunion animus; Adams's unilateral imposition of initial terms and conditions of employment violated the Act; the Board did not err in ordering Adams to recognize the union as the bargaining representative for the Residential Coordinators; the Board did not err in finding that Adams violated the Act by refusing to grant the union president access to the collective bargaining sessions; and the Board's finding that Adams and MJLM were joint employers was supported by substantial evidence. View "Adams and Associates, Inc. v. NLRB" on Justia Law

by
The Fifth Circuit affirmed defendant's conviction and sentence of multiple health care fraud and kickback offenses perpetrated through her medical equipment company. The court held that the trial court did not abuse its discretion in giving the deliberate indifference jury instruction; the evidence was sufficient to support the verdict; and the district court did not abuse its discretion in admitting an expert's testimony regarding Medicare and the practices of medical equipment providers. The court also held that the district court did not clearly err in applying an enhancement under USSG 3B1.1(a) because she was an organizer or leader of a criminal activity involving five or more participants. View "United States v. Brown" on Justia Law

Posted in: Criminal Law

by
The Fifth Circuit affirmed the district court's order compelling arbitration and final judgment in a suit between IQ and WD-40. The court held that the 1996 Agreement between the parties contained an arbitration clause and IQ acknowledges that this arbitration covered some set of claims; IQ waived its challenged to the district court's conclusion that the parties clearly and unmistakably intended to delegate the issue of arbitrability to the arbitrator by conceding it before the district court; and WD-40's assertion of arbitrability was not wholly groundless. The court also held that the arbitrators acted within their authority in deciding that the dispute was arbitrable, and the district court was correct to deny IQ's motion to vacate the award under 9 U.S.C. 10(a)(4). View "IQ Products Co. v. WD-40 Co." on Justia Law

by
The Fifth Circuit affirmed the district court's grant of summary judgment to Solvay on relators' False Claims Act (FCA) claims. The court held that relators failed to produce sufficient evidence to survive summary judgment on any of their briefed claims where the public disclosure bar applied to relators' AndroGel claims; at bottom, the probative value of relators' off-label marketing causation evidence was primarily based on conjecture and speculation and was insufficient to create a genuine issue of material fact for trial; and summary judgment was appropriate as to relators' claim that Solvay unduly influenced P&T committees to place Solvay's drugs on preferred drug lists and as to relators' FCA retaliation claims. Finally, the court affirmed the district court's ruling that partly granted court costs to Solvay. View "King v. Solvay Pharmaceuticals, Inc." on Justia Law

Posted in: Drugs & Biotech