Take the Fifth

Designated for publication

• Alliance for Hippocratic Medicine v. U.S. Food & Drug Administration, 23-10362, appeal from N.D. Tex.
  • per curiam (Elrod, Ho, Wilson), Ho, J., concurring; administrative law, abortion law, standing
  • On remand from the Supreme Court, vacating the district court’s order staying FDA rules regarding mifepristone and remanding for further proceedings.
  • Judge Ho concurred, opining that the Supreme Court had the liberty to depart from precedent that the Fifth Circuit and district court did not.

• Highland Capital Management, L.P. v. NexPoint Asset Management, L.P., 23-10911, c/w 23-10921, appeal from N.D. Tex.
  • Wiener, J. (Wiener, Elrod, Wilson), bankruptcy
  • Affirming summary judgment for debtor in adversary actions brought against subsidiaries for repayment of promissory notes pursuant to Chapter 11 reorganization plan.

• U.S. v. Day, 23-50636, appeal from W.D. Tex.
  • Oldham, J. (Haynes, Willett, Oldham), criminal, sentencing
  • Vacating 101-month sentence on conviction of wire fraud, conspiracy to commit wire fraud, money laundering, and aiding and abetting, on holding that sentence was procedurally erroneous, and remanding for resentencing.
  • The Court held that the district court record did not support the sentencing enhancement based on “financial hardship” to 25 or more victims, where there must be some basis in the record for factual inferences of financial hardship. “‘The same dollar harm to one victim may result in a substantial financial hardship, while for another it may be only a minor hiccup. Much of this will turn on a victim’s financial circumstances…'” The Court noted that here the district court only looked at the total loss amounts, and made no findings as to the relationship of that amount to the victims’ financial state.

• Favre v. Sharpe, 23-60610, appeal from S.D. Miss.
  • Southwick, J. (Southwick, Duncan, Kernodle, by designation), defamation
  • Affirming dismissal of Brett Favre’s defamation claim against Shannon Sharpe arising from comments Sharpe made on a sports talk show he hosts that Favre stole funds from a government program meant for those living in poverty.
  • Side-stepping the district court’s basis for dismissal–that Sharpe’s comments were unactionable “rhetorical hyperbole”–the Court instead affirmed on the alternative basis asserted by Sharpe, that the “statements were protected under Mississippi law as opinions based on disclosed facts or as reports of official proceedings.”

Unpublished

• U.S. v. Delgado-De Parra, 23-40590, appeal from S.D. Tex.
  • per curiam (Haynes, Higginson, Douglas), criminal, search and seizure
  • Affirming conviction of conspiring to transport illegal aliens, upholding denial of motion to suppress.

• Securities and Exchange Commission v. Stack, 23-50327, appeal from W.D. Tex.
  • per curiam (Jones, Haynes, Douglas), securities fraud
  • Reversing district court’s judgment in SEC civil enforcement action that imposed liability on defendant for full amount of money he helped another person defraud from victims, including amounts the defendant “never received or benefited from,” rather than just the “individual liability for the amount he transferred to himself”; and remanding for further proceedings.

• U.S. v. Salmon, 24-10240, appeal from N.D. Tex.
  • per curiam (Smith, Stewart, Duncan), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Villanueva-Moreno, 24-20115, appeal from S.D. Tex.
  • per curiam (Haynes, Higginson, Douglas), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.