Dear House Judiciary Committee: In Questioning William Barr, Employ the Ethics Complaint That 27 Distinguished DC Lawyers Filed Wednesday

FREDERICK BARON, DENNIS AFTERGUT, AUSTIN SARAT

Frederick Baron, former associate deputy attorney general and director of the Executive Office for National Security in the Department of Justice, Dennis Aftergut, a former federal prosecutor, and Austin Sarat, Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College, call upon the House Judiciary Committee to carefully read the ethics complaint by 27 distinguished DC lawyers against William Barr before questioning him today, July 28, 2020.

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Elbar Investments, Inc. v. Prins

Docket: 19-20358

Opinion Date: July 30, 2020

Judge: Jennifer Walker Elrod

Areas of Law: Bankruptcy, Real Estate & Property Law

This case involved an investor, Elbar, that wired money to Defendant Todd Prins, a former attorney, after the owner of a foreclosed property had declared bankruptcy. In this case, United hired Prins to conduct a foreclosure sale; Elbar wired funds to Prins; Prins stole those funds and used them to reimburse other clients. The Fifth Circuit held that the bankruptcy court properly found that Elbar violated the automatic stay thrice, and twice willfully. Furthermore, the court agreed with the bankruptcy court that Elbar is an extremely knowledgeable and sophisticated litigant that understands perfectly that its actions were a direct violation of the Bankruptcy Code. Therefore, the bankruptcy court was correct to weigh those violations against Elbar in its decision. The court also agreed with the bankruptcy court that neither Elbar's claim for equitable subrogation nor its claim for fraud in a real estate transaction warrant relief. Finally, the court rejected Elbar's claims against TransWorld and Industry including money had and received, unjust enrichment, and conversion. Because the district court failed to explain the exceptional circumstances justifying its denial of prejudgment interest, the court remanded with instructions to explain the exceptional circumstances, if any, that justify denial of prejudgment interest or to order prejudgment interest.

Environment Texas Citizen Lobby, Inc. v. ExxonMobil Corp.

Docket: 17-20545

Opinion Date: July 30, 2020

Judge: Gregg Costa

Areas of Law: Civil Procedure, Constitutional Law, Energy, Oil & Gas Law, Environmental Law

Plaintiffs filed a citizen suit against Exxon, seeking to recover from more than 16,000 Clean Air Act violations arising from the Baytown, Texas complex. The Fifth Circuit held that Clean Air Act plaintiffs must prove standing for each violation in support of their claims. The court held that the evidence supports the district court's findings of injury, traceability, and redressability for a number of the violations. However, a limited remand is needed for the district court to determine what other violations could have contributed to plaintiffs' members' injuries and then to tabulate its findings. The court noted that it does not require line-by-line findings, but that the district court may group violations. Furthermore, plaintiffs have standing for at least some of the violations that Exxon asserts affirmative defenses against. The court remanded for findings on whether Exxon proved its Act of God defense for the relatively small number of violations occurring during Hurricane Ike. The court affirmed the district court's rejection of Exxon's Rule 52(b) motion, because Exxon failed to meet its burden in supporting its no-fault defenses by failing to identify evidence establishing that it met the relevant criteria for each individual emissions event. Because the court remanded for the district court to determine the number of violations for which plaintiffs have standing, as well as whether Exxon proved its Act of God defense for any violations, the court will also have to reassess the penalties.

Thomas v. Davis

Docket: 17-20661

Opinion Date: July 30, 2020

Judge: Edith Hollan Jones

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Fifth Circuit granted a certificate of appealability on petitioner's claim that his trial counsel failed to subject the prosecution's case to meaningful adversarial testing in violation of United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039 (1984). Even when reviewed de novo, the court held that counsel's statements during summation and sentencing did not amount to a complete failure to mount a defense and thus Cronic does not apply. In this case, counsel did not entirely fail to subject the prosecution's case to meaningful adversarial testing. Rather, counsel actively advocated on petitioner's behalf throughout the trial and he moved to suppress evidence; he cross-examined the state's witnesses on their identification of petitioner as the culprit, ultimately impeaching several of them and prompting the arguably most critical witness to admit she lied to the police; cross-examined the detectives involved in the underlying investigation on their search and arrest of petitioner, as well as the subsequent handling of evidence; and counsel did not abandon petitioner by conceding the only factual issues in dispute.