Take the Fifth

Designated for publication

• Securities and Exchange Commission v. Novinger, 21-10985, appeal from N.D. Tex.
  • Stewart, J. (Jones, Stewart, Duncan); Jones, J., concurring (joined by Duncan, J.); Rule 60(b); First Amendment
  • Affirming denial of Rule 60(b) motion filed five years after consent judgment, where defendant challenged the “no-deny” provision of its settlement of an SEC civil enforcement action, arguing that the provision (which bars defendants from denying they engaged in the charged conduct as a condition of settlement) violated their First Amendment rights.
  • The Court first held that there was no due process violation that could trigger Rule 60(b)(4), as the defendant was represented by counsel, waived service, answered the SEC’s complaint, and litigated for nearly a year before proposing the settlement; they then executed consent agreements representing that they did so voluntarily and without inducements.
  • The Court then declined to follow a 59-year-old 2nd Circuit opinion and rejected the argument that the alleged First Amendment violation justified Rule 60(b)(4) relief. The Court affirmed the principle that 60(b)(4) “applies only where a judgment is either jurisdictionally or procedurally defective.”
  • The Court also held that Rule 60(b)(5) did not provide a remedy to the defendants. “[T]he defendants have not attempted to demonstrate a significant factual or legal change that justifies relief, much less one that was unanticipated when they entered the consent judgments. Although the defendants argue that the terms incorporated into the judgments produce harmful effects, those are the terms to which they agreed. The defendants are not entitled to relief simply because ‘it is no longer convenient to live with [those] terms.'”
  • Judge Jones, joined by Judge Duncan, concurred: “I write to note that nothing in the opinion (or in the district court opinion, for that matter) approves of or acquiesces in the SEC’s longstanding policy that conditions settlement of any enforcement action on parties’ giving up First Amendment rights. 17 C.F.R. § 202.5(e). If you want to settle, SEC’s policy says, ‘Hold your tongue, and don’t say anything truthful–ever’—or get bankrupted by having to continue litigating with the SEC. A more effective prior restraint is hard to imagine. … Given the agency’s current activism, I think it will not be long before the courts are called on to fully consider this policy.”

• Beatriz Ball, L.L.C. v. Barbagallo Co., 21-30029, appeal from E.D. La.
  • per curiam (Jones, Haynes, Costa), Costa, J., specially concurring; copyright, standing
  • Reversing district court’s judgment that plaintiff lacked standing under the Copyright Act due to a lack of valid assignment of its claim, and that plaintiff failed to establish a protectible trade dress under the Lanham Act; remanding for further proceedings.
  • The Court first held that the original copyright registration of the plaintiff’s dishware designs by “Beatriz Ball Collection,” rather than by the proper corporate designation of “Beatriz Ball, LLC,” was a quintessential unknowing error by non-lawyer employees under 17 U.S.C. § 411(b)(1), such that it was irrelevant whether the pre-suit transfer of the registration from the Collection to the LLC was validly performed or not.
  • The Court then held that the district court erred in finding that the plaintiff’s “Organic Pearl” trade dress was not protectible under the Lanham Act. Because the trade dress was unregistered, the plaintiff had a substantial burden of demonstrating secondary meaning. Reviewing on a clear error standard, the Court held that “a careful review of the record here demonstrates that the district court clearly erred in analyzing three of the [seven] factors [employed to determine protectible secondary meaning]: volume of sales, the nature of use of Organic Pearl trade dress in newspapers and magazines, and the defendant’s intent in copying the trade dress.” The Court held, therefore, that “[t]he sum of errors in the district court’s analysis of secondary meaning requires reconsideration of the evidence and overall re-weighing of the factors.”
  • Judge Costa specially concurred, fully joining the opinion, but writing to “remark on how our remand of the trade dress claim reveals a paradox that has perplexed me about bench trials: We give a trial judge’s detailed and intensive factfinding less deference than a jury’s unexplained verdict.”

Unpublished

• Booth v. Galveston County, 19-40395, appeal from S.D. Tex.
  • per curiam (Higginbotham, Haynes, Wilson), class action, mootness
  • Vacating order certifying class in excessive-bail class action, and remanding for consideration of mootness and other potential jurisdictional developments.

• Olvera v. Garland, 19-60327, petition for review of BIA order
  • per curiam (Wiener, Haynes, Costa), immigration
  • On remand from U.S. Supreme Court, granting petition to review BIA order denying motion to reopen removal proceedings, vacating BIA’s decision, and remanding for further proceedings.

• Edou v. Garland, 20-61237, petition for review of BIA order
  • per curiam (Barksdale, Willett, Duncan), immigration
  • Dismissing in part and denying in part Gabonese citizen’s petition for review of BIA order dismissing her appeal from an order of the Immigration Judge (IJ) denying her application for cancellation of removal.

• U.S. v. Gallardo-Silva, 21-11256, appeal from N.D. Tex.
  • per curiam (Davis, Jones, Elrod), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Johnson, 21-50595, appeal from W.D. Tex.
  • per curiam (Jolly, Willett, Engelhardt), criminal, compassionate release
  • Affirming denial of motion for compassionate release.

• Rosario-Guzman v. Garland, 21-60154, petition for review of BIA order
  • per curiam (Wiener, Elrod, Engelhardt), immigration
  • Dismissing in part and denying in part Dominican citizen’s petition for review of BIA order dismissing of her appeal from the denial by an immigration judge (IJ) of her April 2020 motion to reopen her removal proceedings.

• Lopez-Pineda v. Garland, 21-60438, petition for review of BIA order
  • per curiam (Jolly, Jones, Ho), immigration
  • Dismissing in part and denying in part Honduran citizen’s petition for review of BIA order dismissing her appeal from a decision of the immigration judge (IJ) concluding that she was ineligible for asylum, withholding of removal, and protection under the CAT.

• Cuare-Torres v. Garland, 21-60507, petition for review of BIA order
  • per curiam (Jolly, Willett, Engelhardt), immigration
  • Denying in part and dismissing in part Mexican citizen’s petition for review of BIA order affirming the denial by the Immigration Judge (IJ) of his motion to reopen his removal proceedings.

• U.S. v. Perez-Barrios, 22-10016, appeal from N.D. Tex.
  • per curiam (Wiener, Dennis, Haynes), criminal, sentencing
  • Granting summary affirmance of 37-month sentence on conviction of illegal reentry.

• U.S. v. Fields, 22-10146, appeal from N.D. Tex.
  • per curiam (Elrod, Graves, Ho), criminal, First Step Act
  • Vacating denial of motion for sentence reduction under the First Step Act, and remanding for further proceedings.