by M. Max Sternberg

1. Introduction

On August 11, 2020, and after months of speculation, the Big Ten Conference canceled all fall sports, including football, due to safety concerns in light of the COVID-19 pandemic.[1] Later that same day, the Pac-12 Conference followed suit and also canceled all fall sports.[2] However, on September 16, the Big Ten reversed course and announced that it will in fact have a football season starting October 24, 2020.[3] Furthermore, on September 24, the Pac-12 decided to play a seven game conference only football season starting November 6.[4] As a result, only three (3) schools in the Division 1 Football Bowl Subdivision have canceled the season outright.[5] Canceling the college football season presents new and unique legal questions for those conferences and schools that do not play football, and for the NCAA as well.[6] Alternatively, the conferences and schools that do play football will face their own set of challenges. What’s more, the situation surrounding the decision to play or not to play is constantly changing. Since the first draft of this post, the Big Ten and the Pac-12 have both reinstated football.[7] In light of this evolving situation, and in hopes of providing some clarity, this blog post will address some of the new legal issues raised by either playing or not playing college sports this fall, particularly college football. Continue reading →

by Hunter Hewell, Senior Associate 

I. Introduction

Much like in the federal court system, Texas courts require each party in a suit to pay for their own attorney’s fees.[1] Some circumstances, however, allow for fee-shifting, in which the prevailing party may recover its attorney’s fees from the opposing party.[2] This fee-shifting arrangement is subject to certain requirements: (1) it must be authorized by statute or contract and (2) the party seeking its attorney’s fees must prove the reasonableness of the fee.[3] Although these requirements seem straightforward, courts throughout Texas have struggled with what methodology must be used and what facts the party seeking its attorney’s fees must present to determine the reasonableness of attorney’s fees once a fee-shifting authorization statute is invoked.[4] In 2019, the Texas Supreme Court passed down the Rohrmoos ruling, which specifically addressed what methodology courts and attorneys must use to determine how attorneys’ fees should be apportioned under these circumstances.[5]

Continue reading →

by Monica Bergeron, Senior Associate

I. An Introduction to Civil Asset Forfeiture

Tonya Smith and her husband were casino-hopping in West Virginia when the police pulled them over for illegal use of a lane.[1] The officers searched the car for drugs, but finding none, seized $10,478 in cash and gift cards that the couple had with them—without charging either of them with a crime.[2] In another forfeiture case, Isiah Kinloch had just called 911 after a man broke into his home and assaulted him.[3] When the police arrived, they searched his apartment and found one ounce of marijuana and $1,800 in cash.[4] They kept the cash.[5] In both of these cases, law enforcement was able to seize private property under the guise of civil asset forfeiture, the infamous practice “so contrary to a basic sense of justice and fairness”[6] that it is often referred to as “legalized theft.”[7]

Civil asset forfeiture allows a state to seize, sell, and retain part of the proceeds of private property simply based on the assumption that the property was either connected to, or the product of, criminal activity.[8] Unlike criminal asset forfeiture proceedings that occur against an individual after a conviction, civil asset forfeiture proceedings are against the property itself, in rem, regardless of whether the State ever convicted the owner of the alleged criminal activity.[9] Civil asset forfeiture therefore operates on the legal fiction that “the property itself is guilty.”[10] Experts and commentators criticize civil asset forfeiture on many grounds, but primarily because of the high potential for, and evidence of, abuse.[11] In most of the 47 states[12] with civil asset forfeiture, the profits from the forfeited property go directly into the pockets of law enforcement agencies such as the police, the prosecutors, and the criminal court systems.[13] Proponents of the practice argue that it targets career criminals, depriving them of their illegally acquired profits.[14] Studies, however, show that the practice does little to take the bite out of serious crime and disproportionately targets minorities and the poor.[15]

Continue reading →

 by Harrison Martin, Senior Associate

I. Introduction

Title IX of the Education Amendments of 1972 (Title IX) is a federal law enacted to prohibit discrimination on the basis of sex in any educational program receiving federal financial assistance.[1] Congress enacted Title IX to provide protection for student–victims of sexual discrimination and to avoid dispensing federal funds to schools that perpetuate those practices.[2] The overwhelming majority of United States universities receive federal funding and are consequently required to abide by Title IX.[3] Over the course of the 21st century, courts have experienced a spike in Title IX litigation primarily pertaining to sexual harassment in a university setting.[4] In such cases, it is common for a student–victim’s harassment claim against the school to qualify as sexual discrimination, and, in turn, the student–victim invokes Title IX as the basis of a lawsuit.[5]

Bose v. Bea, a 2020 Title IX sexual harassment case, falls within this framework.[6] Bose’s significance lies in its instruction on how to properly approach a student’s Title IX sexual misconduct and retaliation claim against an educational institution.[7] In a unique turn of events, the plaintiff raised an uncommonly asserted “cat’s paw” theory of liability[8] to connect causation from a faculty member to the college. The Sixth Circuit Court of Appeals ruled against the plaintiff, emphasizing that a respondeat superior argument is not applicable in a Title IX case.[9]

Continue reading →

by Hannah Catchings, Senior Associate

I. Introduction

In August 2016, catastrophic flooding inundated much of southern Louisiana, resulting in 10 deaths[1] and economic damage estimates upwards of $8.7 billion.[2] East Baton Rouge and Livingston parishes bore the brunt of that damage.[3] Among the myriad properties that sustained extensive flood damage was Juban Crossing, a 471-acre mixed-use development located in Livingston Parish.[4] Juban Crossing opened in 2015 and is owned by Creekstone/Juban I, LLC (“Creekstone”), a single asset limited liability company incorporated in Delaware.[4] Following the flood, Creekstone’s insurer, XL Insurance America, a Delaware corporation, paid out $5 million pursuant to the company’s insurance policy; however, Creekstone subsequently filed suit in Livingston Parish seeking additional funds from XL Insurance.[6] In response to the suit, XL Insurance filed a declinatory exception of improper venue, a peremptory exception of no cause of action, and a motion to dismiss, arguing that Creekstone’s policy contained a forum selection clause in which the parties agreed to litigate all disagreements in New York.[7] Consequently, the principal issue in the case became whether the forum selection clause was enforceable. The case eventually reached the Louisiana Supreme Court, which held that Louisiana Revised Statutes § 22:868(A)(2) did not prohibit the enforcement of the disputed forum selection clause.[8] This Lagniappe Post argues in favor of Justice Hughes’s dissenting opinion, in which he outlined three reasons why the majority’s approach was problematic, including public policy, party mischaracterization, and the “unsupportable reformation” of the insurance contract.[9]

Continue reading →