The following are summaries of selected civil opinions issued by the Fifth Circuit in January 2025. The summaries are overviews of particular aspects of the opinions; please review the entire opinions.
APPELLATE PROCEDURE: 28 U.S.C. § 1292(b) did not permit interlocutory review of pretrial ruling on proper measure of damages.
Silverthorne Seismic v. Sterling Seismic Services, 125 F.4th 593 (5th Cir. 2025).
This certified interlocutory appeal arose from a trade-secret misappropriation claim under the Defend Trade Secrets Act of 2016 (DTSA).
Silverthorne licensed Casillas to use Silverthorne’s data. Under their arrangement, Silverthorne would send the data to Sterling, which would then process the data and pass it on to Casillas. Sterling allegedly transmitted unlicensed Silverthorne data to Casillas, which Casillas allegedly used to attract investors. Silverthorne sued Sterling for misappropriation and sought damages, including a reasonable royalty under the DTSA.
Before trial, the district court issued an order defining how Silverthorne could prove damages under the DTSA.
Relying on 1974 Fifth Circuit precedent defining a reasonable royalty for common-law trade secret claims, the district court defined a reasonable royalty as “what Silverthorne and Sterling would have agreed to for Sterling to use the alleged trade secret.” Silverthorne argued for a broader measure adopted by other circuits because the DTSA is broader than the common law. Silverthorne claimed that it would not be able to prove damages under the district court’s definition.
Silverthorne sought an interlocutory appeal of this damages ruling, which the district court certified under 28 U.S.C. § 1292(b). A Fifth Circuit motions panel granted permission to appeal.
The Fifth Circuit motions panel vacated the grant of leave and dismissed the appeal for lack of jurisdiction, holding that the district court’s order did not satisfy the strict requirements of § 1292(b).
The Court explained that Under § 1292(b), a controlling question of law must be: (1) A pure question of law, (2) that immediately and materially affects the outcome of the litigation.
The Court ruled that damages were not yet a controlling issue because Silverthorne had not yet proven liability. The Court reasoned that the case would proceed to trial regardless of its decision on the reasonable-royalty standard and that Silverthorne may not be able to prove damages under any standard, making the question contingent rather than controlling. The Court emphasized that damages-measure issues are generally not controlling.
The Court said further that interlocutory appeals should accelerate, not delay, resolution of the case. But allowing the appeal had already delayed trial by over a year and that resolving the damages issue at this stage would not obviate the need for trial. And if Silverthorne failed to establish liability, the damages issue would become moot, rendering appellate review a waste of judicial resources.
ADMINISTRATIVE LAW: Competitor standing requires actual or imminent competitive harm.
Great Lakes Dredge & Dock v. Magnus, 2025 WL 429583 (5th Cir. 2025).
In a decision clarifying competitor standing in administrative law, the Fifth Circuit affirmed the district court’s dismissal of a challenge to a Customs and Border Protection (CBP) ruling on the Jones Act’s applicability to offshore wind projects. The Court held that Great Lakes lacked standing because it failed to show that CBP’s ruling created an actual or imminent competitive injury.
Great Lakes is a dredging company specializing in scour protection—placing rock to prevent erosion around offshore wind farm structures.
In 2020, Great Lakes sought a CBP letter ruling on whether the Jones Act barred foreign-flagged vessels from transporting scour protection rock from U.S. points to the Outer Continental Shelf. Great Lakes’ request used an off-shore wind farm near Martha’s Vineyard as an example.
CBP initially ruled that all such transportation must be performed by Jones Act-compliant vessels (i.e., U.S.-built, U.S.-owned, and U.S.-registered). But CBP later modified and limited its ruling, finding that foreign vessels could carry the first shipment of scour rock to a new project.
Great Lakes filed an administrative appeal, which CBP denied. Great Lakes then sued CBP under the Administrative Procedure Act (APA), arguing that the modified ruling was unlawful because it allowed unfair competition from foreign vessels.
The district court granted summary judgment for CBP, finding that Great Lakes lacked standing, and the Fifth Circuit affirmed.
The Court first acknowledged that competitor standing is a recognized doctrine, meaning that a regulatory action that creates additional competition can be an injury-in-fact. But, adopting a rule from the D.C. Circuit, the Court held that the mere potential for increased competition is not enough—there must be evidence that the challenged action will cause actual or imminent competitive harm.
After examining the evidence, the Court concluded that any competitive harm to Great Lakes from the ruling was entirely hypothetical. The CBP ruling applied to the Vineyard Project, for which another company had already performed the scour protection work. And Great Lakes presented no evidence that upcoming offshore wind projects would involve U.S.-sourced rock.