Make a Class Action Moot, An Empty Hand Does Not June 21, 2016

“We hold today, in accord with Rule 68 of the Federal Rules of Civil Procedure, that an unaccepted settlement offer has no force.  Like other unaccepted contract offers, it creates no lasting right or obligation.  With the offer off the table, and the defendant’s continuing denial of liability, adversity between the parties persists.” A defendant […]

The 5th Circuit Once was Blind, but Now It Sees! June 20, 2016

Texas Supreme Court Gives the feds thicker lenses, now clear that civil penalties are exemplary damages. In March, we noted that the Fifth Circuit asked the Texas Supreme Court to answer two certified questions about whether plaintiffs could recover civil penalties from a defendant who violated the Texas Optometry Act, when the plaintiffs who sought […]

Texas High Court Eliminates Sales Tax Exemption for Wellbore Equipment, Yet Potentially Extends Exemption to Additional Equipment June 17, 2016

Texas oil and gas companies have argued for decades that some of their equipment is exempt from state sales tax. These exemptions add up to hundreds of millions of dollars in potential costs for businesses, or tax revenue for the state. Today, the Texas Supreme Court ruled that one category of oil and gas equipment—well […]

EPA Acted Unreasonably When it Failed to Consider Costs in Rule-Making— but Supreme Court Declines to Hear Whether those Rules Require Vacatur June 13, 2016

Last summer in Michigan v. EPA, 135 S. Ct. 2699, 2015 WL 2473453 (June 29, 2015), the United States Supreme Court reigned in the Environmental Protection Agency, determining that the EPA acted unreasonably in failing to consider costs when formulating the 2012 Mercury and Air Toxics Standards Rule.  This decision by the Supreme Court was […]

Texas Supreme Court Clears the Air: Houston Ordinance Preempted by State Law May 3, 2016

“[T]he Ordinance converts what is primarily an administrative and civil enforcement regime under state law into a primarily criminal enforcement regime, removing primary enforcement authority from the agency that can ensure consistent enforcement across the state and placing that authority in the hands of the local health officer, city personnel, and municipal court judges.” Last […]

Texas Supreme Court Rules Incorporation of Defective Products Does Not Constitute Physical Injury Under the Standard Form Commercial General Liability Policy December 10, 2015

“We agree with most courts to have considered the matter that the best reading of the standard-form CGL policy text is that physical injury requires tangible, manifest harm and does not result merely upon the installation of a defective component in a product or system.” On December 4, 2015, the Texas Supreme Court sided with […]

States Successfully Challenge EPA Emissions Budgets, Requiring Re-Examination by EPA July 30, 2015

“In sum, EPA’s uniform cost thresholds have required States to reduce pollutants beyond the point necessary to achieve downwind attainment. That violates the Supreme Court’s clear mandate in EME Homer.” This week, in EME Homer City Generation, L.P. v. EPA, No. 11-1302, 2015 WL 4528137 (D.C. Cir. July 28, 2015), the D.C. Circuit Court of […]

Fifth Circuit Affirms EPA Approval of Texas’s Flexible Permit Program (Again) July 24, 2015

“The EPA raised virtually identical arguments in the earlier proceeding, and we categorically rejected them in our 2012 opinion.” This week in Environmental Integrity Project v. EPA, No. 14-60649, 2015 WL 4399482 (5th Cir. July 20, 2015) (per curiam), the Court of Appeals for the Fifth Circuit reiterated its earlier opinion from 2012 that Texas’s […]

Supreme Court Quashes Town’s Sign Ordinance July 8, 2015

“[T]he Church’s signs inviting people to attend its worship services are treated differently from signs conveying other types of ideas. On its face, the Sign Code is a content-based regulation of speech.” The United States Supreme Court recently struck down a city ordinance governing the display of outdoor signs in Gilbert, Arizona.[1] The town’s comprehensive “Sign […]

EPA Must Consider Cost When Regulating Power Plants July 3, 2015

By EPA’s logic, someone could decide whether it is ‘appropriate’ to buy a Ferrari without thinking about cost, because he plans to think about cost later when deciding whether to upgrade the sound system.” This week, in Michigan v. EPA, No. 14-46, 2015 WL 2473453 (June 29, 2015), the United States Supreme Court reigned in […]


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