Take the Fifth

Designated for publication

• Landry’s, Inc. v. The Insurance Co. of the State of Pennsylvania, 19-20430, appeal from S.D. Tex.
  • Oldham, J. (Smith, Oldham; Ho, recused, op. by quorum); insurance
  • Reversing district court’s summary judgment that insurer did not have a duty to defend retail chain that was defending itself against a claim by the processing company that operated the retail chain’s point-of-service credit processing equipment for more than $20 million in liability. The processing company, Paymentech, had been assessed that liability from Visa and Mastercard following an 18-month data breach at locations of the retail chain, Landry’s; Paymentech, in turn looked to Landry’s for payment of that liability pursuant to an indemnification agreement with Landry’s whereby Landry’s had to pay Paymentech for any failure to comply with various “Payment Brand rules.” Landry’s insurer, ICSOP, denied coverage and its duty to defend, asserting that the claim did not fall within the “personal and advertising injury” coverage of the policy because it did not arise from “[o]ral or written publication, in any manner, of material that violates a person’s right of privacy.” The district court issued summary judgment for the insurer, holding that the Paymentech suit “did not allege ‘publication’ because it asserted only that ‘[a] third party hacked into [the] credit card processing system and stole customers’ credit card information.'” The district court also held that the Paymentech claim involved the payment processor’s losses, not customers’ losses.
  • The Court held that “the parties intended the broadest possible definition of ‘[o]ral or written publication.'” Examining the breadth of dictionary definitions for “publication” and “publish,” the Court concluded that, “if the Underlying Paymentech Litigation concerns any of these ‘publications’—even merely ‘exposing or presenting [information] to view’—then the Policy’s capacious provision is satisfied.” The Court then held that the Paymentech complaint clearly alleged that Landry’s “published” customers’ credit card information by “expos[ing] it to view.”
  • The Court then held that the Paymentech litigation “involves an injury ‘arising out of … a violat[ion] [of] a person’s right of privacy.” The Court rejected ICSOP’s argument that the provision would only cover tort claims, such as tort suits by individual customers whose credit card information had been stolen, but not breach of contract claims such as the Paymentech claim. “[T]he Policy contains none of these salami-slicing distinctions.”

Unpublished

• Salinas v. U.S. Railroad Retirement Board, 18-60702, petition for review of Order from the U.S. Railroad Retirement Board
  • per curiam (Higginbotham, Elrod, Duncan), administrative law
  • Dismissing for lack of jurisdiction a petition for review of a decision by the USRRB refusing to reopen the denial of his previous application for a disability annuity under the Railroad Retirement Act.

• Durham v. Amikids, Inc., 19-30108, appeal from M.D. La.
  • per curiam (Jolly, Jones, Southwick), Fair Labor Standards Act, appellate jurisdiction
  • Holding appeal in abeyance and remanding for district court to decide pending Rule 59(e) motion.

• U.S. v. Escalera-Huereca, 19-40832, appeal from S.D. Tex.
  • per curiam (Wiener, Dennis, Haynes), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Alam v. Garland, 19-60797, petition for review of BIA order
  • per curiam (Barksdale, Costa, Engelhardt), immigration
  • Dismissing in part and denying in part Bangladeshi citizen’s petition for review of BIA order dismissing his appeal from the Immigration Judge’s (IJ) denying: asylum; withholding of removal; and relief under the Convention Against Torture.

• U.S. v. Mosley, 20-10835, appeal from N.D. Tex.
  • per curiam (Wiener, Dennis, Haynes), criminal, sentencing
  • Affirming in part and vacating in part sentence that included terms of supervised release that did not comport with the oral pronouncement of the sentence, and remanding for amendment of written judgment.

• U.S. v. Pena, 20-11072, appeal from N.D. Tex.
  • per curiam (Wiener, Southwick, Duncan), criminal, sentencing
  • Affirming sentence for conspiracy to possess with intent to distribute methamphetamine.

• U.S. v. Henriquez-Gomez, 20-20429, appeal from S.D. Tex.
  • per curiam (Clement, Higginson, Engelhardt), criminal, sentencing
  • Affirming 48-month sentence on conviction for being an alien, illegally or unlawfully in the United States, in possession of a firearm.

• U.S. v. Washington, 20-50324, appeal from W.D. Tex.
  • per curiam (Jolly, Willett, Engelhardt), criminal, First Step Act, mootness
  • Granting order to dismiss appeal and remand to the district court to vacate order denying motion for sentence reduction, as moot in light of defendant’s death.

• U.S. v. Marquez, 20-50915, appeal from W.D. Tex.
  • per curiam (Jolly, Elrod, Graves), criminal, sentencing
  • Affirming sentence on conviction of conspiracy to possess with intent to distribute at least 500 grams of a substance containing methamphetamine.

• Hernandez-Justo v. Garland, 20-60109, petition for review of BIA order
  • per curiam (Barksdale, Willett, Duncan), immigration
  • Dismissing in part and denying in part Mexican citizen’s petition for review of BIA order dismissing his appeal from the denial of withholding of removal and humanitarian asylum.

• U.S. v. Villarreal, 21-40059, appeal from S.D. Tex.
  • per curiam (Smith, Stewart, Graves), criminal, supervised release
  • Affirming conditions of supervised release imposed at sentencing for revocation of prior term of supervised release, including anger management conditions and sex-offender registration and treatment provisions.

• U.S. v. Granados, 21-50108, appeal from W.D. Tex.
  • per curiam (Southwick, Graves, Oldham), criminal
  • Granting summary affirmance of defendant’s conviction of possession of a firearm after a felony conviction.