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Texas Multidistrict Litigation Panel

SCOTx puts the last nail in the federal lawsuit against SB8

Mar 12th, 2022
by Charles Kuffner.
1 comment

The fix was in from the beginning.

The Texas Supreme Court dealt a final blow to abortion providers’ federal challenge to the state’s latest abortion restrictions Friday.

The court ruled that state medical licensing officials do not have authority to enforce the law, which bans abortions after about six weeks of pregnancy. This was the last, narrowly cracked window that abortion providers had left to challenge the law after the U.S. Supreme Court decimated their case in a December ruling.

The law has a unique private-enforcement mechanism that empowers private citizens to sue anyone who, in the law’s language, “aids or abets” an abortion after fetal cardiac activity is detected, usually around six weeks of pregnancy.

The law is designed to evade judicial review, a goal at which it has been largely successful so far. Abortion providers have tried to argue that the law is actually enforced by state officials — the clerks who docket the lawsuits, the attorney general and medical licensing officials who could discipline doctors, nurses or pharmacists who violate the law — which would give them someone to bring a constitutional challenge against in court.

The U.S. Supreme Court disagreed with all of those arguments but one, allowing a challenge against the medical licensing officials to proceed. That case then went back to the 5th U.S. Circuit Court of Appeals, which sent it to the Texas Supreme Court to weigh in on.

In a hearing last month, Texas Solicitor General Judd Stone argued that there was no “ordinary English interpretation that entertains any possibility of public enforcement.”

On Friday, the justices issued a ruling that seemed to agree with Stone’s “ordinary English interpretation” of the law.

“The Court concluded that Texas law does not authorize the state-agency executives to enforce the Act’s requirements, either directly or indirectly,” they wrote.

Abortion advocates, including those who brought this challenge, were unhappy with the ruling.

“We have been fighting this ban for six long months, but the courts have failed us,” Amy Hagstrom Miller, president and CEO of Whole Woman’s Health and Whole Woman’s Health Alliance, said in a statement. “The situation is becoming increasingly dire, and now neighboring states—where we have been sending patients—are about to pass similar bans. Where will Texans go then?”

See here for the background and here for a copy of the ruling. I don’t have a good answer to Miller’s question. I don’t have much of anything to say because it’s hard not to feel numb. This is the best I can do:

See here and here for more on the Justice Department’s lawsuit, and here for more on the state lawsuit; you may recall that the judge ruled SB8 unconstitutional but declined to issue a statewide injunction. Maybe the plaintiffs can ask him to reconsider that, I dunno. Vladeck’s option 1 above involves individual providers getting injunctions against individual potential plaintiffs, which should be pursued as a stopgap but is obviously inadequate and unsustainable. That’s where we are today, and you can see why I don’t have much to add. The Chron, the Statesman, WFAA, The 19th, Reform Austin, and Daily Kos have more.

More on Abbott’s involvement in “getting the power back on”

Mar 1st, 2022
by Charles Kuffner.
Comments are off for this post

Also known as more from the Brazos Electric Power Co-op lawsuit against ERCOT, but that didn’t fit well in the title.

The former chair of the Texas Public Utility Commission testified in court Thursday that during last year’s winter storm and blackout Governor Greg Abbott had ordered her to ride out to the power grid control room in Taylor with one of his top advisers.

DeAnn Walker, who resigned in the political fallout of the blackout, said Abbott told her to, “get the power back on” and keep it on and had a state game warden drive her out to the control room.

“He told me to go out to the Taylor facility and to figure out a way to get the power back on to all the customers and to not go back into rolling outages,” she said in federal bankruptcy court in Houston.

[…]

The utility commission originally ordered power prices to the $9,000 cap on Feb. 16, as power plants began freezing up and dropping off the grid at a fast rate. The next day, as generators were beginning to come back online, there was pressure from some power companies to let the power market resume normal operations.

But Magness and Walker resisted, testifying the grid was still unstable and at risk of falling into a total blackout that could take weeks to recover from.

On Thursday Walker, a former adviser to Abbott who was appointed to the utility commission in 2017, faced questions about why she didn’t call a meeting of the utility commission to consult with other commissioners about keeping power prices at the $9,000 cap.

She replied that she believed the commission’s order from Feb. 16, “was still in place.”

“That was an independent decision I made,” she said. “It wasn’t something as a commission we discussed.”

Asked if she discussed it with anyone else, Walker said, “I don’t remember.”

Walker struggled to remember details of the blackout at numerous times during her testimony Thursday, at times drawing criticism from U.S. Bankruptcy Judge David Jones.

At the end of her testimony, Jones commented, “I see no purpose in simply highlighting the areas of your unreliability.”

“I am disappointed in your conduct and your lack of candor this morning.”

See here for the previous day’s testimony from former ERCOT head Bill Magness. While it may sound like Abbott was ordering Walker to do something good, it contradicts his previous claims that he was not involved in the decisions being made by ERCOT and the PUC. In addition, the crux of this lawsuit is that ERCOT and the PUC mandated that the price cap for energy remain at the maximum level of $9,000 per kilowatt hour for days after the grid began coming back up, which put many millions of dollars into the pockets of some power generators at the expense of companies like Brazos Electric and their customers, which is to say people like all of us. The lawsuit, part of Brazos’ bankruptcy filing, is over how much they actually owe their suppliers. The plaintiff’s argument, which is backed up by a lot of outside experts, is that the max price cap, which ostensibly was to coax offline generators back online, did nothing of the sort. It was just a huge windfall for the providers that were already producing.

Anyway. A favorable decision for Brazos Electric would obviously be good for them, and I would hope good for their customers. It would also cause other power retailers to follow suit, and who knows how chaotic that might get. Not that it would be a bad thing, just a big uncertainty. And if there are a bunch more lawsuits of this nature, ERCOT is going to be very busy defending itself.

The Electric Reliability Council of Texas does not have sovereign immunity from all lawsuits and the Texas Public Utility Commission does not have exclusive jurisdiction over all claims against ERCOT, according to a ruling by an appeals court ruling this week.

The 12-to-1 decision Wednesday by the Fifth District Court of Appeals in Dallas was widely anticipated because it could have ramifications in hundreds of lawsuits pending in Houston courts stemming from the deadly winter storm in 2021 in which ERCOT is a defendant.

In the ruling, judges cleared the path for Panda Power Funds to pursue hundreds of millions of dollars in damage claims in state court against ERCOT. Panda claims that ERCOT committed fraud, negligent misrepresentation and breach of fiduciary duty when it published intentionally inaccurate reports in 2011 and 2012 that projected a “serious and long-term scarcity of power supply.”

As a result of ERCOT’s allegedly false market data, Panda invested $2.2 billion to build three new power plants — operations that have not generated the revenue that ERCOT predicted.

[…]

The Fifth Court opinion, authored by Justice Erin Nowell, also reverses a decision the same court made in 2018 that ERCOT has sovereign immunity.

“To date, the supreme court has not extended sovereign immunity to a purely private entity neither chartered nor created by the state, and this court will not create new precedent by extending sovereign immunity to ERCOT,” Nowell wrote. “ERCOT is not entitled to sovereign immunity and the legislature did not grant exclusive jurisdiction over Panda’s claims to the PUC. To the extent we previously held otherwise, that holding is in error.”

“Although ERCOT argues it has the power to make binding law, which it calls the ‘quintessential sovereign power,’ the applicable statutes do not support this argument,” the court ruled.

Justice David Schenck dissented, but there is no record of a written dissent.

Lawyers on both sides say the case is now headed to the Texas Supreme Court.

The issue of ERCOT’s sovereign immunity is critical in more than 200 individual wrongful death, personal injury and property damage lawsuits brought by victims of the winter storm that name ERCOT among defendants. Those cases have been consolidated before a judge in Houston.

“This is a huge win for both Texas consumers and businesses whose lives and livelihoods were so drastically impacted by the actions and inactions of ERCOT,” said Houston trial lawyer Derek Potts, who represents dozens of victims of the storm. “It is safe to say that more litigation against ERCOT is coming.”

See here, here, and here for more on the Panda Power case, which originated in 2019 and thus has nothing to do with the freeze lawsuits. Well, it didn’t at the time, which was of course before the freeze, but it sure does now. Justice Nowell is now a candidate for State Supreme Court, by the way. Just passing that along.

SCOTx hears SB8 argument

Feb 26th, 2022
by Charles Kuffner.
2 comments

I’ll be honest, I had not realized this was on the calendar.

The Texas Supreme Court got its first chance to weigh in on the state’s new abortion law Thursday, hearing arguments in a narrow challenge to the restrictions, which have blocked access to abortions after about six weeks of pregnancy for nearly six months.

This hearing before the nine-justice high court is an interim step in the ongoing federal lawsuit brought by abortion providers trying to challenge the law. The 5th U.S. Circuit Court of Appeals asked the Texas Supreme Court to weigh in on a question of state law before the appeals court proceeds with its own ruling in the case.

The law, passed as Senate Bill 8, is designed to evade judicial review, a goal at which it has so far been successful. It specifically precludes state officials from enforcing it, instead deputizing private citizens to bring civil lawsuits against anyone who “aids or abets” an abortion after cardiac activity is detected in an embryo, usually around six weeks of pregnancy.

Lawyers representing the abortion providers are trying to prove that the state itself actually will enforce the law, which would open a legal window for them to seek an injunction on some aspects of the law. They argued that the law is enforced by court clerks who docket the lawsuits, judges who hear them, the attorney general and others.

The U.S. Supreme Court threw out most of those arguments in a December ruling that allowed the law to remain in effect. The justices did allow one question to proceed, over whether state medical licensing officials play a role in enforcing the law.

Those agencies would potentially be responsible for disciplining or revoking the licenses of doctors, nurses and pharmacists who violate the law; an injunction would stop them from doing so, but would leave the crux of the law in place.

[…]

At Thursday’s hearing, Texas Solicitor General Judd Stone argued that there was no “ordinary English interpretation that entertains any possibility of public enforcement.”

The justices questioned whether doctors might be obligated by the rules of the state’s medical licensing board to report any lawsuits brought against them for violating the abortion law, and whether that would constitute state enforcement.

Stone said the board could simply make a rule saying that it has no role in enforcement, so even if a report was made, it would be precluded from taking further action, like revoking a doctor’s license.

That argument, and the narrowness of the challenge more generally, presented a problem for lawyers representing the abortion providers, who found themselves in the tricky position of arguing against themselves.

Their current argument is that the state’s enforcement authority, through medical licensing officials, contributes to the chilling effect on abortion providers. If the state Supreme Court decides that medical licensing officials do not have enforcement authority — or the boards add language to their rules confirming that — that chilling effect is lifted.

Justice Evan Young asked Marc Hearron, senior counsel for the Center for Reproductive Rights, whether that would be a win for the abortion providers.

“If you were to do that, that would, at a minimum, provide our clients some certainty,” Hearron said. “It would, however … essentially end our challenge.”

Without state enforcement, there is no one to bring a constitutional challenge against, and the law would remain in effect.

[…]

Abortion providers and advocates are fighting the law on several fronts, including in state court, where a judge in Austin declared the law unconstitutional. He did not enjoin the law from being enforced, though, and that ruling is being appealed.

It is possible that case will eventually return to these same chambers. The justices acknowledged that Thursday’s hearing is unlikely to be the last time they are asked to rule on this unprecedented new law.

Thursday’s case before the Texas Supreme Court is a question of whether the abortion providers can bring a federal “pre-enforcement” challenge.

If that option is foreclosed to them, one option would be to do what a San Antonio doctor did immediately after the law was passed: violate the law, get sued and challenge the statute on its merits in court.

See here, here, here, and here for some background. Perhaps the timing of this hearing on Thursday explains the forced-birthers’ move earlier in the week. I have no idea what SCOTx will do, and there’s no indication from them as to when they’ll do it, but I do know what they should do, and that’s what the federal district court did and would have done again if the Fifth Circuit hadn’t shredded normal practice to put this case before them: Issue a temporary restraining order against any SB8 activity until the matter is resolved in the courts. It’s ridiculous and infuriating how the Fifth Circuit and SCOTUS have played politics with this case. Do what is clearly the right thing under the law, and let the matter proceed from there. I don’t expect them to do this, but they should. The Chron and the Texas Signal have more.

Winter storm litigation about to get busy

Feb 19th, 2022
by Charles Kuffner.
1 comment

Some test cases will be underway soon.

During the past year, the wrongful-death, personal injury and property damage lawsuits — nearly all consolidated before one judge in Houston — moved at a snail’s pace. Hardly any court hearings were conducted. No witnesses were deposed. Settlement discussions never took place.

The next two months, however, are pivotal to the survival of the lawsuits.

On orders of a judge, plaintiffs’ attorneys have spent recent weeks updating their cases, adding dozens of corporations as defendants and presenting new theories about why the power grid nearly collapsed in the brutal cold, leaving millions without power and contributing to the deaths of hundreds.

Key defendants in most of the earliest lawsuits were the Electric Reliability Council of Texas, which manages the state’s electricity grid, and large generators and transmission companies such as CenterPoint Energy, TXU Energy, Reliant and NRG Energy.

Now the suits have added the power providers’ parent companies, subsidiaries and business partners, such as power producers and retailers such as Vistra, Duke Energy, NextEra and Talen Energy.

Judge Sylvia Matthews has given attorneys until Feb. 28 to choose five individual suits from the 174 brought by more than 400 plaintiffs to be so-called test cases.

“By all accounts, this is a judge who wants these cases to move forward and doesn’t allow grass to grow under her feet,” said Mikal Watts, a Houston lawyer who represents 65 people in the cases.

[…]

Not all the legal disputes are part of the multidistrict litigation.

For example, nearly all the energy companies named in the wrongful-death, personal injury and property lawsuits also are battling each other and ERCOT over issues such as wholesale power pricing that reached $9,000 per kilowatt-hour.

“Lawyers on both sides agree that the financial ramifications of Winter Storm Uri caused the biggest transfer of wealth in Texas history,” said Houston lawyer Derek Potts, who is involved in several of the pending lawsuits. “The question is, ‘Was it legal?’”

“Actual discovery has not even started, and that is when we will pinpoint what links in the chain are to be held responsible,” he added. “The pipeline companies, for example, reaped a tremendous windfall from Winter Storm Uri and the outrageous prices. Is that legal?”

See here for some background on the cases before Judge Matthews and our new best friend, the Texas Multidistrict Litigation Panel, for which I still want someone to write me a long background story. I’m very interested both in those five initial test cases and in the fight over the ridiculous price level that power was allowed to reach last year. I’d sure like for the answer to those questions posed to be “No”, but I have no idea what it would mean if a court were to make that decision. Not that I wouldn’t want to find out, just that it would be more chaotic than if the Legislature took action. But chaos may be the only way forward, so here we are. Original story is from Texas Lawbook, but it’s behind a paywall. The above is taken from the Chron excerpt.

The state of the state redistricting lawsuits

Dec 26th, 2021
by Charles Kuffner.
2 comments

A good update, and a reminder that not all of the action is in federal court.

In two cases heard [December 14 and 15], a group of mostly Democratic, Hispanic lawmakers from both chambers challenged the legality of when and how Republicans drew the boundaries.

“All we’re asking is for Republicans, who claim to be constitutionalists, to start acting like it, and follow the plain meaning and reading of the Constitution,” said Roland Gutierrez, one of two Democratic state senators who are suing Texas.

Focusing on the timing are Gutierrez and Sen. Sarah Eckhardt, who sued to block the Legislature from redistricting in a special session this year. Also at issue are rules for keeping counties intact when drawing Texas House districts.

Similar to a suit they filed in federal court before redrawing began, the senators’ attorneys argued the Texas Constitution requires that redistricting be done in a regular session that won’t happen until 2023.

That makes the newly drawn state House and state Senate plans invalid, argued the legal team for Gutierrez and Eckhardt, of San Antonio and Austin, respectively.

The senators’ lawyers pointed to a provision in the state Constitution that requires the redistricting process to start in the first regular session after the decennial Census has been published, asking the court to block the new plans from being used.

State lawyers argued the provision does not prohibit apportionment at other times, and warned that blocking the map will disrupt the 2022 election process that is already in motion.

“The Legislature … is perfectly free to redistrict whenever it wants,” Will Thompson, the attorney general’s deputy chief for special litigation, said at the Dec. 15 hearing in district court in Travis County.

[…]

The senators’ legal team also argued the new state House map violated the “county line rule” of the Texas Constitution, which requires that counties with sufficient population be kept intact in drawing Texas House districts.

The second challenge, mounted by the Mexican American Legislative Caucus in the Texas House, made a similar case that the rule was broken, arguing it was designed to ensure people have local representation.

As lawmakers this fall debated the new House lines late into the night, they narrowly adopted a major change in South Texas. House District 37 was redrawn from a seat President Joe Biden won by 17 percentage points, to a seat the president won by only two points over former President Donald Trump in the 2020 election.

That amendment, developed by Kingsville Republican Rep. J.M. Lozano, was denounced by some Valley lawmakers. State Rep. Eddie Lucio III, D-Brownsville, called the change a “disingenuous, last-minute attempt to do a grab.”

The plaintiffs’ legal team argued the county line rule requires that two districts be wholly contained within Cameron County. Yet Lozano’s tweaks give Cameron County just one wholly contained district, with two that connect to adjoining counties.

The state’s lawyers argued the new boundaries do not dilute votes in Cameron County, and that Cameron got the number of districts it was constitutionally entitled to. The plaintiffs’ attorney rejected that interpretation of the rules.

“There is no doubt that to whatever extent Cameron County voters are a cohesive group … they get to elect the candidates of their choice,” said Thompson, one of the state’s lawyers.

District 37 Democratic candidate Ruben Cortez Jr. joined the senators’ suit, along with political organization Tejano Democrats. The new version of the district was joined with adjacent Willacy County.

“This Republican redistricting scheme is robbing the voice of Cameron County voters,” Cortez, also a member of the Texas State Board of Education, said in a news release.

The caucus’ complaint asked the court to block the Texas House map from being used in upcoming elections and allow for the creation of alternative boundaries.

Both sides discussed a full trial beginning Jan. 10.

It’s unclear, if the judges rule in favor of the plaintiffs on the county line rule, whether they would delay Texas House primary elections just for South Texas, or the entire state. The plaintiffs’ legal team asked the court to delay the primary to May 24.

Thompson, the state lawyer, said he expects the 2023 Legislature to have to revisit the maps.

The Gutierrez/Eckhardt lawsuit was originally filed in federal court, but at a hearing in October it was agreed that the plaintiffs would first pursue the matter in state court. The state lawsuit was filed on November 22, judging from the stamp on the document. The lawsuit over HD37 and Cameron County was one of two lawsuits filed by MALC, with the other being a broader federal lawsuit. I was not aware until this story that they had been combined, as the federal lawsuits (with the exception of the federal version of the Gutierrez/Eckhardt lawsuit) have been.

The cases are being heard by an interesting three-judge panel: Karin Crump, a Democrat and district court judge in Travis County, who is presiding; Ken Wise, a Republican was was re-elected to the 14th Court of Appeals in 2020; and Emily Miskel, a Republican district court judge from Collin County who is running for the 5th Court of Appeals in 2022. I assume this is the work of the Texas Multidistrict Litigation Panel, though that name is not mentioned in the story. Funny how once you become aware of something new you begin to see it everywhere.

As for the cases, with the standard I Am Not A Lawyer proviso, both of them seem pretty straightforward. Either the Lege is only allowed to embark on the decennial redistricting process in a regular session that follows the Census or it’s not, and either the county line rule means that a county with sufficient population to have more than one State House district in it has only one partial district in it, with the other(s) being fully within that county. Looking at the district viewer, I don’t see any other example of a county that has one complete district and more than one partial districts in it. There are no such examples in the current map, either – Cameron has all of HDs 37 and 38 and part of 35. It seems likely to me that previous legislatures didn’t think this was something they could do. And as for whether Cameron County voters get to elect the candidate of their choice, that’s nice and all but it’s not the question that was asked, nor is it relevant to the county line rule.

As for the claim that the Lege is free to redistrict whenever it wants, then it could in theory redraw new lines after every election. (The 2003 DeLay re-redistricting was only for Congress, which is outside the scope of the Gutierrez/Eckhardt lawsuit. That same claim was made about “mid-decade” Congressional redistricting, and I don’t believe there was ever a federal ruling on that question.) Surely there are some limits on what the majority party can do.

The weakness of the state’s arguments suggests to me the possibility the plaintiffs could prevail, but we are getting way ahead of ourselves. I do think the state can reasonably claim it wasn’t their fault that the Census data was late, and that it’s less disruptive to redistrict in a special session so new maps can be in place for the intended election than to wait an entire cycle. The counter to that would be that this is what the Legislative Redistricting Board is for, though here I would say it’s not clear to me that the outcome would be any more favorable to the plaintiffs unless the LRB is restricted to just tweaking districts to equalize population. In other words, can the LRB draw whole new maps, in which case I’d expect them to come up with something exactly like what was adopted by the Lege, or must they use the existing maps and make only the minimal changes necessary to fix population imbalances? The Gutierrez/Eckhardt plaintiffs might “win” but not achieve anything, depending on how the court views that question. Someone with real legal experience should probably step in at this point and stop me from digging this hole any deeper.

Anyway. We might at least get an initial answer to these questions before voting begins, which would be nice. We might also get a split primary for at least part of the state, which is more than a little chaotic. Isn’t this fun?

State judge rules SB8 is unconstitutional

Dec 10th, 2021
by Charles Kuffner.
4 comments

Sounds a little better than it actually is, but it’s still pretty good.

Right there with them

A Texas judge on Thursday ruled that the state’s controversial law restricting abortions after about six weeks of pregnancy violates the Texas Constitution, saying it should not be enforced in court.

Although Thursday’s ruling is a win for abortion rights advocates, the order only has direct consequences for the 14 lawsuits in the case that the judge oversaw. The judge did not issue an injunction to block cases from being filed, though experts say it would likely be used as precedent in those cases.

Jackie Dillworth, communications director at Whole Woman’s Health, said the group’s four clinics across the state will not resume full services but would be “eager” to do so if an injunction were issued.

“We are so grateful to Judge Peeples for his ruling today,” said Dillworth. “[The law is] depriving Texans of their rights, autonomy, quality of life, and health.”

[…]

State District Judge David Peeples’ ruling Thursday emphasized that he wasn’t ruling on abortion rights, but rather on the enforcement method that the law employs.

“This case is not about abortion; it is about civil procedure,” he wrote in his order.

Peeples echoed concerns on how a similar form of enforcement could be used to infringe on other constitutional rights, a view expressed by members of the U.S. Supreme Court during oral arguments last month in two other challenges to the law.

“In sum, if SB 8’s civil procedures are constitutional, a new and creative series of statutes could appear year after year, to be enforced by eager ideological claimants, who could bring suit in their home counties, where the judges would do their constitutional duty and enforce the law,” Peeples said in his order. “Pandora’s Box has already been opened a bit, and time will tell.”

[…]

The judge ruled that Texas Right to Life cannot file lawsuits against the 14 plaintiffs for helping others get an abortion disallowed by the Texas law. The plaintiffs include doctors, nonprofit organizations and Planned Parenthood. However, other parties or individuals can still sue the plaintiffs under the abortion law.

“This ruling is limited to the named parties. It does not apply to all other potential plaintiffs and defendants. John Doe could file suit tomorrow, without regard to this ruling,” Josh Blackman, a law professor at South Texas College of Law Houston, said in an email.

Blackman added that Peeples can only rule on the 14 cases before him — not on any other cases or the law overall.

“A judge can’t declare a statute unconstitutional in all contexts. Courts can only issue rulings with regard to particular parties in a particular case. But other courts can choose to treat this ruling as precedential (and likely would),” he said.

But even if Thursday’s ruling had stopped the law from being enforced, SB 8 is written with an unusual restriction that allows someone to later be sued if that ruling is overturned on appeal.

Joanna Grossman, a professor at SMU Dedman School of Law, said that means providers may not be comfortable resuming procedures until all the court battles are waged.

“It was just another thing to stack the deck against providers so that it just wasn’t possible for them to manage their risk,” she said. “I assume they’re all having conversations with their lawyers right now about [whether] this actually gives them any ability to reopen.”

See here for the background, and here for a copy of the judge’s order. The ruling will be appealed – since this was heard in Travis County, that means that the Third Court of Appeals will get it next, unless there’s some mechanism to have it go straight to the Supreme Court. There is of course the still-pending case before SCOTUS, which could generate a ruling as soon as today or sometime later or maybe never, who even knows. I suppose with the violence they plan to do to reproductive rights in the Mississippi case, the assassins on the high court could make a cynical nod towards “moderation” by putting the kibosh on Texas’ law. But again, who knows what they’ll do. In the meantime, now we wait for the next steps in this case. It’s a start.

I’ll see your AstroWorld lawsuit and raise you $10 billion

Dec 9th, 2021
by Charles Kuffner.
5 comments

That’s a big number, though that’s partly because there are a lot of plaintiffs.

A local law firm has just filed the largest suit to date against Travis Scott’s Astroworld Festival after the mass-casualty tragedy that claimed the lives of 10 concert-goers. Attorney Brent Coon is demanding $10 billion in restitution on behalf of 1,547 attendees — that’s more petitioners than any firm thus far.

Additionally, Coon’s firm, Brett Coon & Associates, has filed a request with the Harris County District Court system to consolidate all cases involved into one courtroom to provide for more efficient management of the docket on behalf of all claimants, per a press release. A hearing is scheduled for December 13, 2021.

Aside from the mammoth suit, Coon notes in a statement that he is demanding legislative action to include crowd control planning specialists to certify events, mandated training programs for event preparation and criminal liability for any wrongdoing.

[…]

Coon’s suit comes after a $2 billion filing by San Antonio lawyer Thomas J. Henry and a $750 million petition by Houston attorney Tony Buzbee.

See here for some background, and here for the Chron story. I assume the mention of consolidating the cases is a reference to the many others that have been combined and will be heard in Harris County via the Texas Multidistrict Litigation Panel.

Not much else to add to that story, so let me note a couple of other AstroWorld items that I didn’t put into their own post. First up, Travis Scott is seeking to be dismissed as a defendant from eleven lawsuits.

Houston rapper Travis Scott has responded to 11 lawsuits launched against him in the deadly Astroworld festival tragedy denying all liability and requesting he and his record label Cactus Jack Music be dropped as defendants, according to court documents.

Scott, whose real name is Jacques B. Webster II, has been named in hundreds of lawsuits totaling billions of dollars since the tragedy that took 10 young lives on Nov. 5. Scott’s attorney Ed McPherson issued a “general denial” on his behalf to allegations claiming he was to blame for the deaths and injuries of concertgoers.

Scott is also requesting the claims be “dismissed with prejudice” so that once finished, cases cannot be refiled.

Representatives with Scott’s legal team said in an email to the Chronicle that the request is “a standard response to the plaintiff filing and reiterates what’s already been out there that Travis is not legally liable.”

One of the 10 victims, 22-year-old Texas A&M student Bharti Shahani, died nearly a week post-festival after succumbing to injuries that left her on a ventilator. Her family filed suit against Scott and festival organizers and refused to accept Scott’s financial assistance for funeral expenses. Their lawsuit is one of the 11 Scott’s lawyers responded to.

Not clear to me from the story why Scott is taking this action in only eleven lawsuits, or why these specific eleven lawsuits. Maybe they have something in common, maybe they were just first in line, maybe he’s in settlement talks with the others, maybe full dismissal will be sought for others. I have no idea, but given the high-powered legal team working for Scott and Live Nation, I’m sure this is just a first step.

Other AstroWorld stories that I have skimmed but not found anything original to say about:

Exclusive: CEO of Astroworld medical provider recalls moment when routine festival spiraled out of control

How missed warning signs at Travis Scott’s Astroworld Festival led to one of the worst U.S. concert tragedies

8 biggest revelations from the Houston Chronicle’s in-depth Astroworld investigation

This story will be with us for a long time.

A brief look at the winter storm litigation

Dec 7th, 2021
by Charles Kuffner.
2 comments

This story is actually about the judge who will be presiding over winter storm cases, but it caught my eye for a reason that will be apparent.

Sylvia A. Matthews presided over more than 175 jury trials and 160 bench trials during her decade as a Harris County District Court judge. Lawyers for plaintiffs and defendants say she is smart, fair, well-prepared, hard-working, efficient and decisive.

Matthews will need all those qualities over the next several months as she oversees more than 150 highly complex civil lawsuits filed by victims seeking billions of dollars in damages as the result of last February’s winter storm, which was one of the deadliest and costliest disasters in Texas history.

The lawsuits filed across Texas include individuals suing for wrongful death, personal injury and property damages and companies complaining about breach of contracts, interruption of business and price-gouging.

Some of the largest power companies, such as the Houston utility CenterPoint Energy, the Chicago company Exelon and Vistra Energy of Irving, one of the state’s biggest generators and retail electricity providers.

While the lawsuits have been filed in more than a dozen Texas courts, the Texas Supreme Court has consolidated them into one docket, called multidistrict litigation.

The cases are consolidated for efficiency, allowing pretrial issues, such as production of evidence and admissibility of testimony, to be decided in a uniform matter. Once the pretrial issues are decided, the cases are usually sent back to the courts where the lawsuits were filed for trial.

For example, lawyers predict that the 200 lawsuits already filed in the Astroworld tragedy will also be consolidated into a single proceeding for pre-trial purposes.

[…]

The winter storm litigation is likely to take years to resolve, according to legal experts. In fact, the statute of limitations for more lawsuits does not expire for another year, meaning more cases may still be filed.

The stuff in between is about Judge Matthews, a Republican now serving as a visiting jurist following her electoral defeat in 2018. It’s fine, I’m glad she’s good at her job, but it was the stuff about the Texas Multidistrict Litigation Panel that I noticed. Here’s this thing I’d never heard of before October of this year, and now it’s turning up all over the place, including and not surprisingly in the AstroWorld cases. I feel like someone owes me a nice in-depth explainer about this body. How long has it been in existence, what are the rules that govern it, who serves and how do they get there, and is it just one of those things that it’s been a key player in such high profile and hot button matters as these cases plus SB8 or is it somehow a sign of the times? Oh, to be an assignment editor. Seriously, someone write me that story, I’d read the hell out of it.

Anyway. Litigation over the freeze and blackout and responsibility for the latter will no doubt go on for years, but hopefully it will help provide some answers. Lord knows, we’re not getting any from our state leaders. I’ll be keeping an eye out for further news.

State lawsuits against SB8 finally get a hearing

Nov 13th, 2021
by Charles Kuffner.
1 comment

A long strange trip it has been.

Right there with them

A state district judge on Wednesday morning heard arguments from abortion rights groups challenging Texas’ restrictive abortion law in what seems to be the first court hearing to specifically tackle the statute’s constitutionality.

David Peeples, a retired state magistrate judge, presided over the eight-hour hearing. He didn’t make a ruling Wednesday but is expected to make one soon after he receives additional filings from both the abortion rights groups and Texas Right to Life, a prominent anti-abortion organization and a defendant in the suits.

Peeples is considering over a dozen cases filed in state court challenging Senate Bill 8, which effectively bans abortions after about six weeks. These lawsuits — filed by Planned Parenthood, doctors, social workers, abortion fund organizations, practical support networks and lawyers — were consolidated by Texas’ multidistrict litigation panel to be heard together.

Attorneys for the 14 cases argued that the law is unconstitutional. Planned Parenthood sought an order blocking the law, while plaintiffs in the 13 other suits asked the judge to issue declaratory judgment of the constitutionality of the law, a legal maneuver used to resolve legal uncertainty in a certain case.

“In short, SB8’s enforcement mechanism, created to subvert one constitutional right, violates the Texas and United States Constitutions,” wrote attorneys representing the plaintiffs in the 13 other suits.

The suits target Texas Right to Life, which helped draft Texas’ law and has vowed to sue violators, even though the group has not filed suits against anyone as of yet.

Texas Right to Life argued that the plaintiffs can’t prove they’ve been injured by the law, and even if they did, the court has no jurisdiction to issue an order blocking the law. Furthermore, since it hasn’t actually filed any suits against people who have violated Texas’ abortion law, the organization argued it isn’t a proper defendant in the case. Its attorneys also argued the abortion rights groups were asking for an overly broad declaration to block cases that might hypothetically be filed.

See here, here, and here for some background. There’s video of the hearing here. The argument made by Texas Right to Life about how they couldn’t possible be sued for any of this, and the plaintiffs’ argument that the law has to be stopped at its root because the piecemeal approach fundamentally deprives them of their rights has been a part of this from the beginning and was a key element in the federal hearing before SCOTUS earlier this month. As before, I have no idea what the court might do or how long it might take to do it, but in this case I feel confident saying that it won’t be the final word. One way or the other, this will end up before the state Supreme Court. They may have some guidance from SCOTUS by then, but they’ll still have to grapple with those questions on their own. The Chron has more.

SCOTx denies Planned Parenthood emergency request

Oct 5th, 2021
by Charles Kuffner.
Comments are off for this post

Not a surprise, I suppose.

Right there with them

The Texas Supreme Court denied a request Monday from Planned Parenthood to resume its lawsuit, filed in a state district court, that challenges the state’s near-total abortion ban.

Planned Parenthood asked the all-Republican court last week to overturn the Texas Multidistrict Litigation Panel’s decision to indefinitely pause its suit alongside 13 other lawsuits filed in Travis County district court. The panel of five judges stopped the cases from continuing at the request of Texas Right to Life, a prominent anti-abortion organization that helped draft Texas’ abortion restrictions.

The suit filed by Planned Parenthood asked the court to declare the abortion law, which bans the procedure as early as six weeks into a pregnancy, unconstitutional. A hearing was scheduled for this month, the organization said, before the panel of judges paused proceedings. In that case, the court temporarily blocked Texas Right to Life from being able to sue Planned Parenthood for potential violations of the abortion law.

“The Texas Supreme Court’s decision to allow the stay to remain in effect is extremely disappointing and will likely deprive Planned Parenthood of its day in court, once again,” Helene Krasnoff, Planned Parenthood’s vice president for public policy litigation and law, said in a statement.

Elizabeth Myers, a Dallas-based attorney who represents plaintiffs for the other 13 lawsuits blocked, said Monday’s ruling was disappointing, but she called the stay a temporary setback.

“We’ll present our arguments and the defendants will ultimately have to attempt to defend SB8 on the merits,” Myers said. “That is something the defendants are obviously scared and unwilling to do, so it’s not surprising that they continue to try to delay it. At some point, their delay tactics will no longer work and our clients look forward to that day.”

See here for the background. I still don’t understand what the norms are for the Texas Multidistrict Litigation Panel, so I don’t know if outrage, annoyance, or a shrug of the shoulders is the appropriate reaction. I’m going to go with “annoyance” anyway, because this whole situation is some kind of bullshit. Let’s please get a favorable ruling in the federal case ASAP, shall we?

Planned Parenthood files emergency request to SCOTx

Oct 3rd, 2021
by Charles Kuffner.
3 comments

From the inbox:

Right there with them

On Wednesday, Planned Parenthood affiliates in Texas filed an emergency request asking the Texas Supreme Court to intervene in an ongoing case against Texas Right to Life (TRTL), challenging Senate Bill 8, the state’s six-week abortion ban. Earlier this month, Planned Parenthood was granted a temporary injunction against the group and its associates, which blocked TRTL from suing abortion providers and health care workers at Planned Parenthood health centers in Texas under S.B. 8.

However, in yet another attempt to deprive Planned Parenthood of its day in court, at TRTL’s request, the Texas Multidistrict Litigation Panel stepped in and stayed all ongoing challenges to S.B. 8 in state court indefinitely. This comes despite the fact that a hearing in Planned Parenthood’s case, where it asked the court to declare S.B. 8 unconstitutional, was already scheduled for Oct. 13. Intervention by the Texas Supreme Court is urgently and immediately needed. S.B. 8 continues to cause unprecedented harm on the ground, blocking Texans from accessing their constitutional right to abortion.

[…]

The U.S. Supreme Court allowed S.B. 8 to take effect nearly one month ago, disregarding nearly 50 years of precedent by denying an emergency request to block the law’s unconstitutional pre-viability abortion ban. S.B. 8 has decimated abortion access in the state, as providers are forced to turn people away under the six-week abortion ban. Historically, the overwhelming majority — between 85 and 90% — of Texans who obtain abortions in the state are at least six weeks into pregnancy. Under S.B. 8, the first six-week abortion ban allowed to take effect since the Roe v. Wade decision, few are able to receive care in the state, forcing patients to bear the financial and emotional cost of traveling elsewhere for essential care, all during a pandemic. For many Texans, particularly those who are Black or Latino, who have low incomes, or who live in rural areas, abortion is unattainable.

Since S.B. 8 took effect, abortion has been virtually inaccessible for the 7 million women of reproductive age living in Texas. Some of the devastation caused by the law in Texas and beyond are detailed in recent declarations from Planned Parenthood Gulf Coast President & CEO Melaney Linton, Planned Parenthood of the Rocky Mountains President & CEO Vicki Cowart, and Planned Parenthood of Arkansas and Eastern Oklahoma physician Dr. Joshua Yap in support of the U.S. Justice Department’s request for a preliminary injunction to stop the enforcement of S.B. 8.

See here for a bit of background. I wasn’t sure what the context of this was until I remembered that I had seen this:

With more than a dozen lawsuits challenging Texas’ near-total abortion ban stalled in state court, Planned Parenthood has asked the all-Republican Texas Supreme Court to step in and allow the cases to proceed.

Last week, the Texas Multidistrict Litigation Panel, which is made up of five judges, indefinitely paused 14 lawsuits filed in Travis County district court at the request of Texas Right to Life, a prominent anti-abortion organization that helped draft Texas’ abortion restriction. The panel of judges typically steps in to take action on a group of similar cases. The judges didn’t list a reason for the stay, and said the cases will remain paused until the panel makes another order.

One of the suits was filed by Planned Parenthood. It asked the court to declare the abortion law, which bans the procedure as early as six weeks into a pregnancy, unconstitutional. A hearing was scheduled for Oct. 8, the organization said, before the panel of judges paused proceedings.

In that case, the court temporarily blocked Texas Right to Life from being able to sue Planned Parenthood for potential violations of the abortion law.

“Texas Right to Life championed this blatantly unconstitutional law, but now it is doing everything it can to prevent those challenging S.B. 8 from having their day in court because TRTL knows it will lose,” Helene Krasnoff, vice president for public policy litigation and law at Planned Parenthood Federation of America, said in a statement. “We’re urging the Texas Supreme Court to step in and move this critical case along so we can restore access to abortion across the state.”

Got to say, I had never heard of the Texas Multidistrict Litigation Panel before now. I can understand why it exists, but at least in this instance it seems maddeningly opaque and unaccountable. I have no idea what the rules are here, or what PP’s odds of success are, but it seems they had no other choice if they wanted to be able to pursue this kind of legal remedy. So while we all have our eyes on the federal court, this is what’s happening at the state level.