Judge Robert Summerhays – Nominee for the U.S. District Court for the Western District of Louisiana

Like Dan Domenico and Dominic Lanza before him, Judge Robert Summerhays is a Trump district court nominee who was originally considered for the Court of Appeals.  While Summerhays was ultimately not selected for the Fifth Circuit (the Administration chose Kyle Duncan), he is now pending appointment to the Western District of Louisiana.

Background

Robert Rees Summerhays was born on September 10, 1965 in Fort Worth, Texas.  Summerhays attended the University of Texas at Austin, graduating with high honors in 1989, and then joined the U.S. General Accounting Office in Dallas as an evaluator.[1]

After two years in Dallas, Summerhays enrolled at the University of Texas at Austin Law School, graduating with high honors in 1994.[2]  He then clerked for Judge Eugene Davis on the U.S. Court of Appeals for the Fifth Circuit.[3]  After his clerkship, Summerhays joined the Dallas office of Weil, Gotshal & Manges LLP as an associate.  In 2003, he became a partner at the firm.[4]

In 2006, Summerhays was named a Bankruptcy Judge on the U.S. Bankruptcy Court for the Western District of Louisiana.[5]  He still serves on that court today.  He also served as Chief Bankruptcy Judge from 2009 to 2017.[6]

History of the Seat

Summerhays has been nominated to fill a vacancy on the U.S. District Court for the Western District of Louisiana.  The Western District is facing a vacancy crisis, with four of the seven allotted judgeships for the District currently vacant, and only two nominees pending.[7]  This crisis was exacerbated by the Republican Senate’s failure to confirm any Obama nominations to Louisiana seats in the 114th Congress.

The vacancy Doughty has been nominated to fill opened on June 5, 2017, when Judge Rebecca Doherty moved to senior status.  However, Summerhays was actually recommended by Louisiana senators Bill Cassidy and John Kennedy for appointment to the U.S. Court of Appeals for the Fifth Circuit seat vacated by Judge Eugene Davis.[8]  In his interview with the White House, Summerhays expressed his willingness to take a District Court appointment if the White House chose not to nominate him for the Court of Appeals.[9]  Sure enough, the Trump Administration nominated conservative lawyer Kyle Duncan for the Fifth Circuit and tapped Summerhays for the Western District.

Legal Experience

After his clerkship, Summerhays joined the Dallas office of Weil, Gotshal & Manges LLP, working in complex commercial litigation and securities litigation.[10]  Among the more prominent cases he handled at the time, Summerhays represented Ernst & Young in defending against a securities class actions suit, managing the litigation until the ultimate dismissal by Judge Sam Lindsay.[11]  He also represented the plaintiff in a state-law antitrust action against United Technologies Corporation, leading to a verdict for his client.[12]

Summerhays also handled many mediations, arbitrations, and other alternative dispositions.  Notably, he represented Hughes Electronics in a $1 Billion arbitration action against Boeing, guiding the case to a settlement.[13]

Jurisprudence and Reversals

Summerhays serves as a Bankruptcy Judge in the Western District of Louisiana.  In that capacity, Summerhays presides over bankruptcy matters, and has supervised 232 adversary proceedings and has entered final orders in over 16,000 cases.[14]  In his twelve years on the bench, three of his decisions were substantially reversed by higher courts:

In re Vidalier[15] – The district court reversed Summerhays’ ruling that a married debtor could not file late joint tax returns after the death of his spouse for years when the spouse was alive.[16]

Joyner v. Liprie[17] – This case involved an estate action brought by a former business partner that was removed to federal court.  Summerhays declined to remand the action to state court, ruling that the causes of action brought could not be asserted by the plaintiff.[18]  The District Court declined to adopt this portion of the report, remanding the action to state court.[19]

In re Miller[20] – In this case, Summerhays ruled that 11 U.S.C. § 1325 prevented a creditor from seeking an unsecured deficiency claim.[21]  The Fifth Circuit reversed this ruling.[22]

Writings

As a young attorney, Summerhays authored an article discussing the scope of Corporate Attorney-Client privilege.[23]  In the article, Summerhays criticizes the Fifth Circuit decision in Garner v. Wolfinbarger, which created an exception to attorney-client privilege in suits where corporate shareholders were suing management in derivative suits.[24]  Summerhays notes that the “doctrinal underpinnings of the Garner exception are frustratingly ambiguous.”[25]  He also criticizes the expansion of Garner to cover non-derivative suits and suits against majority shareholders.[26]  Instead, he proposes limiting Garner only to suits where shareholders are seeking to vindicate either rights common to all shareholders or rights of the corporations.[27]  Judge James “Jimbo” Stephens ultimately ruled that Doughty was not required to recuse himself from the case.[28]

Overall Assessment

Unlike fellow nominee Michael Juneau, who faced significant opposition in the Senate Judiciary Committee, Summerhays should face a relatively easy confirmation for three reasons.  First, Summerhays has extensive experience with complex litigation including arbitrations and mediations, a good skill set for a federal trial judge.  Second, Summerhays has a long and uncontroversial record on the bench, including a very low rate of reversal.  Finally, Summerhays lacks a controversial paper trail and has managed not to offend any key judicial stakeholders.

As such, it is likely that Summerhays will be confirmed by this summer, adding another Trump appointment onto the Western District of Louisiana.


[1] Sen. Comm. on the Judiciary, 115th Cong., Robert Summerhays: Questionnaire for Judicial Nominees 2.

[2] Id. at 1.

[3] Id. at 2.

[4] Id.

[5] Id.

[6] Id.

[7] Tyler Bridges, 42 Parish Area of Western Louisiana Suffers From Vacant Federal Judgeships, The Acadiana Advocate, Aug. 22, 2017, http://www.theadvocate.com/acadiana/news/article_dad54e68-8791-11e7-9cfc-678529cbf1c6.html.

[8] See Summerhays, supra n. 1 at 56.

[9] Id.

[10] See Summerhays, supra n. 1 at 44.

[11] In re Capstead Mortg. Secs. Litig., 258 F. Supp. 2d 533 (N.D. Tex. 2003).

[12] Chromalloy Gas Turbine Corp. v. United Tech. Corp., No. 95-CI-12541 (Bexas County, Tex. filed 1995).

[13] Boeing-Hughes Electronics Purchase Price Arbitration.

[14] See Summerhays, supra n. 1 at 14.

[15] 2006 WL 3873268 (Bankr. W.D. La. Dec 22, 2006), rev’d, 2008 WL 4003671 (W.D. La. Aug. 29, 2008).

[16] See id.

[17] 2012 WL 1144614 (Bankr. W.D. La. Apr. 04, 2012), report and recommendation adopted in part, rejected in part, Joyner v. S.F.L. & S.I.L., 485 B.R. 538 (W.D. La. 2013).

[18] See id.

[19] See id.

[20] No. 07-20542 (Bankr. W.D. La. Jan. 24, 2008), rev’d, 570 F.3d 633 (5th Cir. 2009).

[21] See id.

[22] See id.

[23] Robert R. Summerhays, The Problematic Expansion of the Garner v. Wolfinbarger Exception to the Corporate Attorney-Client Privilege, 31 Tulsa L.J. 275 (Winter 1995).

[24] Id. at 286.

[25] See id. at 302.

[26] See id.

[27] Id. at 315.

[28] Id.

Judge Terry Doughty – Nominee to the U.S. District Court for the Western District of Louisiana

The Western District of Louisiana is currently facing a judge shortage unlike any other district in the country.  Due to unexpected retirements, lingering vacancies, and the Republican-controlled 114th Congress’ refusal to confirm President Obama’s nominee to the court, the Western District (allotted seven active judges) is expected to fall to just two by the end of the year.  As such, President Trump’s nomination of Judge Terry Doughty to the court takes on greater importance.

Background

Terry Alvin Doughty was born on January 16, 1959 in Rayville, Louisiana.  Doughty received a Bachelor in Science at Louisiana Tech University in 1981, going straight to Louisiana State University Law Center, graduating with a J.D. in 1984.

In 1984, Doughty joined the Rayville law firm, Cotton, Bolton & Hoychick, as an associate.  The next year, Doughty joined the Fifth Judicial District Attorney’s Office as a part-time prosecutor.  In 1987, Doughty was promoted to be a partner, and the firm was renamed Cotton, Bolton, Hoychick & Doughty.

In 2008, Doughty was elected to a judgeship on Louisiana’s Fifth Judicial District.  He was re-elected in 2014, and currently serves in that capacity.

History of the Seat

Doughty has been nominated to fill a vacancy on the U.S. District Court for the Western District of Louisiana.

The vacancy Doughty has been nominated to fill opened on May 31, 2016, when Judge Robert James moved to senior status.  In 2016, Doughty contacted Rep. Ralph Abraham (R-LA) to express his interest in the vacancy opened by Judge James’ retirement.  After interviewing with Sen. Bill Cassidy and then-Sen. David Vitter, Doughty’s nomination was not taken up by the Obama Administration.

After the election of President Trump, Doughty interviewed again with Cassidy and Sen. John Kennedy.  Upon Cassidy and Abraham’s recommendation, Doughty was interviewed by the White House in April 2017, and officially nominated on August 3, 2017.

Legal Experience

From the time he graduated law school to his election to the bench, Doughty served at the same firm: Cotton, Bolton, Hoychick & Doughty.  At the firm, Doughty practiced civil litigation, focusing primarily on the representation of insurance companies.  For example, Doughty represented an insurance company in proceedings involving an injury caused by a cow to a resident of the insured household.[2]  Doughty also represented a defendant and his insurer in an action over an injury caused by a falling deer stand.[3]

Alongside his work at Cotton Bolton, Doughty also worked as a part-time prosecutor working in Franklin, Richland, and West Carroll Parishes.  In this role, Doughty successfully persuaded the Fifth Circuit to reinstate a conviction thrown out by a federal district judge on appeal.[4]  Similarly, Doughty successfully persuaded the Fifth Circuit to reinstate a murder conviction overturned by Judge Robert James for violating North Carolina v. Alford.[5]  Doughty also assisted in a second degree murder trial involving a defendant who shot the victim with a .38 pistol.[6]  The verdict was overturned by the Louisiana Court of Appeal.[7]

Jurisprudence and Reversals

Doughty serves as a district judge in the Fifth Judicial District of Louisiana.  In that capacity, Doughty presides over criminal, civil, and juvenile cases.  In his nine years on the state bench, Doughty has presided over almost 300 cases.  Of those cases, 33 have been appealed to higher courts, and two have been partially reversed:

Credit et al. v. Richland Parish Sch. Bd. et al. – This case involved a child who had been pushed under a school bus by another student.  Doughty ruled that, under Louisiana law, school employees were protected from suit by the decedent’s mother based on qualified immunity.[8]  The Louisiana Second Circuit Court of Appeals reversed, holding that Louisiana statutes only protected school employees from suits based on acts of commission, not omission.[9]  The Louisiana Supreme Court reversed again, upholding Doughty’s ruling as to most of the defendants, but holding that Doughty erred in blocking suit against the bus driver.[10]

Aymond et al. v. Citizens Progressive Bank – This case involved a suit for damages by farm entities against a bank based on a farm loan.  In his ruling, Doughty found that the plaintiffs could not maintain an action against the bank.  The Louisiana Second Circuit Court of Appeals partially reversed.[11]

Additionally, Doughty has attracted some criticism for his conduct on the breach of contract lawsuit, KT Farms et al. v. Citizens Progressive Bank et al.  Specifically, Doughty had been accused of a bias against plaintiff’s attorney Sedric Banks and of a conflict of interest involving his own aspirations to a federal judgeship.[12]  Based on an allegedly hostile comment made by Doughty from the bench, Banks filed a motion to recuse.[13]  During the motion hearing, Doughty testified that he had questioned Luke Letlow, the chief of staff of Congressman Abraham, as to negative press articles about his conduct relating to Banks.[14]  Furthermore, Doughty denied that he believed that Banks was “messing up” his chances at a federal judgeship.[15]  Judge James “Jimbo” Stephens ultimately ruled that Doughty was not required to recuse himself from the case.[16]

Additional questions have been raised based on Doughty’s close connection with Abraham, who is a stockholder of one of the defendant bank’s parent company.[17]  Further, Abraham’s son-in-law is a member of the bank’s board of directors.[18]

Overall Assessment

While there is little doubt that the Western District desperately needs judges, Doughty’s path to the bench, like that of his co-nominee Michael Juneau, has the potential to get rocky.  In Doughty’s case, this is primarily due to the allegations raised by Sedrick Banks in the Citizens Progressive Bank case.  Senators may question Doughty as to the propriety of his remaining of the case, given the close links between the defendants and his congressional sponsor for a federal judgeship.  In defense, Doughty can note that another judge (Stephens) has ratified his conduct and has confirmed that no ethical violations are raised by his presence on the case.

Given Doughty’s conservative record on the bench, it is unlikely that Senate Democrats will want to give him the benefit of the doubt on a close case.  However, Doughty’s chances of confirmation will largely depend of whether any of the Committee’s Republicans find his conduct ethically problematic.  If not, Doughty can expect a swift, if not smooth, confirmation.


[1] Tyler Bridges, 42 Parish Area of Western Louisiana Suffers From Vacant Federal Judgeships, The Acadiana Advocate, Aug. 22, 2017, http://www.theadvocate.com/acadiana/news/article_dad54e68-8791-11e7-9cfc-678529cbf1c6.html.

[2] Andrade v. Shiers, 564 So.2d 787 (La. 2d Cir. 1990).

[3] J. Cooper, et ux v. D. Cooper, III et al., 786 So.2d 240 (La. 2d Cir. 2001).

[4] Cupit v. Whitley, 28 F.3d 532 (5th Cir. 1994).

[5] Orman v. Cain, 228 F.3d 616 (5th Cir. 2000).

[6] State v. Ruff, 504 So.2d 72 (La. 2d Cir. 1987).

[7] See id.

[8] See Credit et al. v. Richland Parish Sch. Bd. et al., 2010 WL 8759525.

[9] See Credit et al. v. Richland Parish Sch. Bd. et al., 61 So.3d 861 (La. 2d Cir. 2011).

[10] See Richland Parish Sch. Bd. et al. v. Credit et al., 85 So.3d 669 (La. 2012).

[11] See 206 So.3d 330 (La. 2d Cir. 2016).

[13] See Parker, Judge, supra n. 12.

[14] See id.

[15] Id.

[16] Id.

[17] See Parker, Family, supra n. 12.

[18] See id.

Michael Juneau – Nominee to the U.S. District Court for the Western District of Louisiana

The Western District of Louisiana is a court desperately short of judges.  Due to retirements and resignations, the District, which is assigned a complement of seven active judges, will be down to two by the end of the year.  Today, we look at one of two nominees offered by the Trump Administration: Michael Juneau.

Background

Michael Joseph Juneau was born in Monroe, LA on June 29, 1962, the son of prominent attorney Patrick Juneau.  Juneau attended Louisiana State University in Baton Rouge, graduating magna cum laude in 1984.  He went straight from college to Harvard Law School, getting his J.D. in 1987.

After graduating, Juneau returned to Lafayette, joining his father’s law firm Juneau, Judice, Hill & Adley as an Associate.  After six years as an Associate there, Juneau co-founded the firm Juneau David, APLC in Lafayette.  He currently serves as a Shareholder there.

History of the Seat

Juneau has been nominated to fill a vacancy on the U.S. District Court for the Western District of Louisiana.  The Western District is facing a vacancy crisis, with four of the seven allotted judgeships for the District currently vacant, and a fifth scheduled to open later this year.[1]  This crisis has been exacerbated by the Republican Senate’s failure to confirm any Obama nominations to Louisiana seats in the 114th Congress.

The seat Juneau has been nominated for opened on March 6, 2015, with Judge Richard Haik’s move to senior status.[2]  On February 4, 2016, President Obama nominated Stephanie Finley, the then-serving U.S. Attorney for the Western District of Louisiana, to fill the vacancy.[3]  While Finley, who would have been the first African American judge on the Western District,[4] had the enthusiastic support of Republican senators David Vitter and Bill Cassidy,[5] and was approved by the Senate Judiciary Committee unanimously,[6] her nomination was blocked from the floor by Senate Majority Leader Mitch McConnell.

After the election of President Donald Trump, Juneau submitted his resume for a federal judgeship to Sen. John Kennedy (R-LA).  In March 2017, Kennedy submitted Juneau’s name to the White House.  Trump formally nominated Juneau on Aug. 3, 2017.

Legal Experience

Juneau has only held two positions since graduating from law school: as an associate at Juneau, Judice, Hill & Adley, and as a Shareholder at Juneau David APLC.  In the former position, Juneau focused primarily on civil litigation, maritime law and product liability cases, including representing a child in a suit against a pastor who had committed sexual abuse.[7]

After moving to Juneau David, Juneau focused on maritime law and product liability actions.  Juneau handled many maritime accident cases, including a consolidated law suit over the explosion of an offshore oil rig,[8] and the suit over a boat accident on the way to an oil and gas facility.[9]

In 2012, Judge Carl Barbier of the U.S. District Court for the Eastern District of Louisiana appointed Juneau’s father, Patrick, to supervise two mass-tort court-supervised settlements: the Deepwater Horizon Economic and Property Damages Settlement; and the Halliburton & Transocean Punitive Damages Settlement.  Patrick Juneau then hired Michael to assist him with the settlement.[11]  While British Petroleum (BP), the defendant in the Deepwater Horizon case, initially approved Juneau’s appointment, the relationship soured amidst allegations that the Administrators were approving claims too readily.[12]  Ultimately, BP ended up suing to remove Patrick Juneau,[13] with the support of some plaintiff’s attorneys.[14]  The decision to appoint Michael Juneau to the case drew particular criticism, with plaintiff’s attorney Daniel Becnel calling it “unconscionable.”  Ultimately, BP failed to remove the Juneaus from the claims process, which continues to this day.[15]

Memberships and Affiliations

As noted in a colloquy between Sen. Mike Lee (R-UT) and Sen. Dick Durbin (D-IL) during the Sept. 20th confirmation hearing, a judicial nominee’s professional affiliations can sometimes become an issue in the confirmation process.  As such, two of Juneau’s affiliations could draw criticism.  First, Juneau has been a member of the Krewe of Gabriel from 1993 to 2017.  The Krewe, a social club that organizes Mardi Gras events, restricts its membership to men (it also, in the past, restricted membership by race).  Second, Juneau has noted an affiliation with the Alliance Defending Freedom (ADF) on his Judiciary Questionnaire.  As previously noted, ADF has been designated as a hate group by the Southern Poverty Law Center.  As such, the exact nature of Juneau’s relationship with ADF will likely be probed in his hearing.

Political Activity

While he has never run or held political office, Juneau, a registered Republican, has been a frequent donor to Louisiana politicians.  The vast majority of Juneau’s donations are directed to Republicans.[16]  Among the more targets are former senator David Vitter, current senators Bill Cassidy and John Kennedy, and Congressman Garret Graves.[17]  Juneau has also donated to the presidential campaigns of Mitt Romney, Rick Santorum, Rick Perry, and Marco Rubio.[18]

Earlier in his career, Juneau donated almost exclusively to Democrats, including a $1000 contribution to the presidential campaign of Al Gore.[19]   However, since 2000, Juneau has only donated once to a Democrat, a $2400 contribution to former senator Mary Landrieu in 2009.[20]

Overall Assessment

In the rough-and-tumble world of judicial politics, Juneau has one key advantage that should help him win confirmation: the support of Sen. John Kennedy.  Kennedy, as noted in the past, is one of the more aggressive questioners on the Judiciary Committee, and is likely the most “gettable” of the Judiciary Committee Republicans for opponents of Trump nominees.  As such, having Kennedy in his corner virtually ensures Juneau’s passage through Committee.

This is not to say that Juneau will necessarily have a smooth confirmation.  He faces two potential lines of criticism: the first based on his (allegedly nepotistic) appointment to the Deepwater Horizon case; and the second based on his affiliation with ADF.  The first may draw criticism from Republicans who believe that the Deepwater settlement unfairly penalized BP.  The second will raise concerns among Democrats, similar to those they raised with Prof. Barrett.

Overall, Juneau’s record confounds efforts to pigeonhole him on either side.  His Republican record of donations and alliance with ADF paint him as a judicial conservative, while his willingness to pay out billions in claims in the Deepwater Horizon case and his support for some Democrats, including Gore and Landrieu suggest moderation.  Overall, his testimony at his confirmation hearing on Oct. 4th will help us further understand the kind of judge he would be.


[1] Tyler Bridges, 42 Parish Area of Western Louisiana Suffers From Vacant Federal Judgeships, The Acadiana Advocate, Aug. 22, 2017, http://www.theadvocate.com/acadiana/news/article_dad54e68-8791-11e7-9cfc-678529cbf1c6.html.

[2] Leslie Turk, Judge Haik Assuming Senior Status in March, The Independent, Sept. 11, 2014, http://theind.com/article-18588-judge-haik-assuming-senior-status-in-march.html.

[3] Press Release, White House, President Obama Nominates Two to Serve on the United States District Courts (Feb. 04, 2016) (on file at https://obamawhitehouse.archives.gov).  

[4] Leslie Turk, Finley Could Be First African American on Western District Bench, Acadiana Business, Feb. 5, 2016, http://theind.com/article-22647-finley-could-be-first-african-american-on-western-district-bench.html.

[5] The Leadership Conference, These Republican Senators Want Their Judicial Nominees Confirmed. Majority Leader McConnell Isn’t Listening, Medium, Aug. 4, 2016, https://medium.com/@civilrightsorg/these-republican-senators-want-their-judicial-nominees-confirmed-1d87e6bfc615 (quoting David Vitter) (describing Finley as a “great Louisianian”).

[6] Michael Macagnone, Senate Panel Advances 4 Federal Judges, Hints at Floor Votes, Law 360, June 16, 2016, https://www.law360.com/articles/807489/senate-panel-advances-4-federal-judges-hints-at-floor-votes.

[7] In the Matter of a Minor Child, et ux v. Louisiana District Council of the Assemblies of God et al., 16th Judicial Dist. Ct., St. Martin Parish, Louisiana, Judge Michael McNulty (1990-1992).  

[8] In re: The Matter of Mallard Bay Drilling, as Owner and Operator of Mr. Beldon, otherwise designated as Mallard Rig 52, Praying for Exoneration from and/or Limitation Liability, Docket No. 97-1223, (W.D. La. 1997).  

[9] Lincoln v. Goodrich Petroleum Corp., et al., 25th Judicial Dist., Plaquemines Parish, Louisiana, Docket No. 50-620, Judge Joy Lobrano (2004-2011).

[10] See Perry, et al. v. Wyeth-Ayerst Laboratories Co., et al., No. 99-0089, Circuit Court of Jefferson County (Miss.) (Judge Pickard), Vadino, et al. v. American Home Products Corp., et al., No. MID-L-425-98, Superior Court, Middlesex County (N.J.) (Judge Corodemus).

[11] Campbell Robertson and John Schwartz, How a Gulf Settlement That BP Once Hailed Became its Target, N.Y. Times, April 27, 2014.  

[12] Tom Young, BP to Blame for Payment Delays, Not Deepwater Claims Administrator Juneau, The Legal Examiner, March 21, 2016, http://neworleans.legalexaminer.com/toxic-substances/bp-to-blame-for-payment-delays-not-deepwater-claims-administrator-juneau/.

[13] Jonathan Stempel, Patrick Juneau, BP Spill Claims Administrator, Urges Dismissal of Company’s Lawsuit, Huff. Post, April 1, 2013, http://www.huffingtonpost.com/2013/04/01/patrick-juneau-bp-spill-settlement_n_2994406.html.

[14] Kyle Barnett, Prominent Plaintiff Attorney Backs BP’s Bid to Remove Claims Administrator Patrick Juneau, Louisiana Record, Feb. 4, 2015, http://louisianarecord.com/stories/510585593-prominent-plaintiff-attorney-backs-bp-rsquo-s-bid-to-remove-claims-administrator-patrick-juneau.

[15] Richard Thompson, After 4 Years, 300K Claims, $9.2B, BP Claims Administrator Nearing Finish Line, New Orleans Advocate, Sept. 29, 2016, http://www.theadvocate.com/new_orleans/news/business/article_965235aa-8682-11e6-8181-0b5297cc5994.html.

[16] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=michael+juneau&order=desc&sort=D (last visited Sept. 27, 2017).  

[17] See id.

[18] Id.

[19] Id.

[20] Id.

[21] As a law student at Georgetown, Kelly spent a year as a Work-Study Reference Clerk at the Edward Bennett Williams Law Library.