Planned Parenthood of Utah v Herbert

A sua sponte poll for en banc review was issued after the panel decision was issued. The Court, 6-4, denied rehearing. The author of the panel majority opinion concurred arguing that the poll was improper as it there was no motion of review by the parties, it was done secretly and was held while the parties had already agreed to the entry of an injunction. On the merits the concurrence argued that the panel made a legal conclusion on the effects of Herbert’s statements, remanded for factual findings by the district court including considering the admissions by Herbert in the papers opposing the injunction which were enough to allow Parenthood to carry its burden. The dissenting member of the panel concurred in denying review as he did not see the panel decision creating problems in the future as it merely misapplied the correct rule instead of announcing a new incorrect rule on evaluating preliminary injunctions. The dissent argued the panel majority improperly reviewed de novo instead of for abuse of discretion, made factual findings on Herbert’s motivations by holding alternatively the district court made no findings or made clearly erroneous findings and held parenthood to a lower burden than clear and unequivocal proof and failed to provide comity for Utah’s political branches.

Dine Citizens Against Ruining our Environment v Jewell

Citizens appealed the denial of their motion for a primary injunction to prevent oil and gas drilling on certain public lands in New Mexico. The panel, with one judge dissenting in part, affirmed. The majority held that the 10th Circuit approach of allowing a plaintiff to show a lower likelihood of success on the merits if the other three elements were present and strong was inconsistent with recent United States Supreme Court precedent and had to be abandoned. Thus the majority held that there was no error in the district court not using the using the sliding scale approach. It held there was not a likelihood of cusses here as fewer wells have been opened than the existing plan contemplated and there was no evidence that the new methods of extracting oil and gas will increase the environmental impacts on the public lands in question and there is no ban on agencies changing the environmental impact statement to account for new developments. As there is no likelihood of success, the district court properly denied the motion for preliminary injunction. The partial dissent argued the Supreme Court precedent did not in fact prevent the use of the lower likelihood test and the majority of circuits have continued to follow that approach. It agreed that plan in question was big picture plan and Citizens failed to demonstrate the total impacts of the approved wells exceed those predicted in the environmental impact statement.  

In re Amerson (Scott v King)

Scott appealed the bankruptcy appellate panel’s order upholding approval of a settlement of her probate claim to her father’s trust. The panel affirmed. It held that the probate claim was part of the estate because Scott failed to choose to keep it out of the estate under 11 USC 541(c)(2) by effectively keeping in in by listing it in a schedule of assets, never argued the claim was outside the estate and in fact argued the will giving her the claimed right was invalid. It held the approval was not an abuse of discretion as the probate claim raised complex issues, settlement preserved estate assets and the settlement amount was the same as the other claimant received. 

SOLIDFX, LLC v Jeppesen Danderson, Inc.

Jeppesen appealed a jury award of lost profits and SOLIDFX cross appealed summary judgment to Jeppesen on its antitrust claim. The panel reversed on lost profits and affirmed on antitrust. It held that under the plain language, structure and punctuation of the damage limitation provision, the contract here excluded lost profits from the damages that could be recovered or, in the alternative, the profits sought here were consequential because they are for hypothetical future sales to third parties and did not result from the breach of contract itself. It affirmed on the antitrust judgment as Jeppesen’s refusal to deal was justified by its right to assert intellectual property rights in its airport landing charts and SOLIDFX presented no evidence that Jeppesen acted entirely with anticompetitive motivation.