SAMUEL TROICE, Individually and on behalf of a class of all others similarly situated; MICHOACAN TRUST, Individually and on behalf of a class of all others similarly situated; PAM REED, Putative Class Representative, Plaintiffs - Appellants
GREENBERG TRAURIG, L.L.P.; YOLANDA SUAREZ, Defendants - Appellees
from the United States District Court for the Northern
District of Texas USDC No. 3:12-CV-4641
JONES, CLEMENT, and SOUTHWICK, Circuit Judges.
H. SOUTHWICK, CIRCUIT JUDGE:
Texas law, an attorney is immune from civil suits brought by
a non-client when the conduct at issue occurred within the
scope of the attorney's representation of a client. This
appeal concerns three purported exceptions to that doctrine.
The district court held that none of them exists. We AFFIRM.
AND PROCEDURAL BACKGROUND
appeal has its roots in the R. Allen Stanford Ponzi Scheme
that has already been the subject of much litigation. See
Janvey v. Democratic Senatorial Campaign Comm.,
Inc., 712 F.3d 185, 188-89 (5th Cir. 2013) (detailing
the Ponzi scheme and the civil and criminal actions it
spawned). The scheme was centered around the sale of
certificates of deposit ("CDs") through Stanford
International Bank, Ltd. and related entities. See
id. at 188. The basic workings of the fraud were to take
the funds raised from the CD sales and reissue them to
purchasers as if they were returns from investments. See
id. The scheme eventually collapsed, and the Government
and others brought criminal prosecutions and civil suits
against Stanford and others. See id. at 188-89. The
only aspect of the scheme before us is the purported
involvement of an attorney then practicing at Greenberg
receiver for the Stanford Receivership Estate, the Official
Stanford Investors Committee, and three defrauded investors
sued Greenberg under a respondeat superior theory. They
alleged a Greenberg attorney conspired with Stanford to
further the fraud. The investor plaintiffs
("plaintiffs" hereafter) also sought class
certification. Greenberg moved to dismiss the claims for lack
of subject matter jurisdiction, or in the alternative, for a
judgment on the pleadings. The district court granted
judgment on the pleadings and denied the motion for class
certification as moot. The plaintiffs appealed. They have
also moved that we certify to the Supreme Court of Texas the
state law questions on which this case turns.
review the grant of a judgment on the pleadings de
novo, utilizing "the same standard as a motion to
dismiss under Rule 12(b)(6)." Doe v. MySpace,
Inc., 528 F.3d 413, 418 (5th Cir. 2008). That is,
confined to the pleadings and accepting the allegations as
true, we ask if "the complaint states a valid claim for
relief." Hughes v. Tobacco Inst., Inc., 278
F.3d 417, 420 (5th Cir. 2001) (quoting St. Paul Mercury
Ins. Co. v. Williamson, 224 F.3d 425, 440 n.8 (5th Cir.
2000)). We will uphold the grant of judgment on the pleadings
"only if there are no disputed issues of fact and only
questions of law remain." Id. Only questions of
law remain here.
winning argument in the district court was that attorney
immunity under Texas law precluded the plaintiffs'
claims. The plaintiffs countered that multiple exceptions to
the general rule exist and permit Greenberg's liability.
The district court disagreed. The issues here are primarily
about Texas law. We first discuss why we will not certify and
then move to our analysis of Texas law.
Certification of issues to the Supreme Court of Texas
Supreme Court of Texas has the discretion to accept
certification of "determinative questions of Texas law
having no controlling Supreme Court precedent."
Tex.R.App.P. 58.1. In deciding whether to certify issues, we
consider whether there are "sufficient sources of state
law" to allow us to make "a principled rather than
conjectural conclusion"; "the degree to which
considerations of comity [such as the likelihood of the
issue's recurrence] are relevant"; and
"practical limitations of the certification
process" such as "significant delay and possible
inability to frame the issue so as to produce a helpful
response" from the relevant state appellate court.
Florida. ex rel. Shevin v. Exxon Corp., 526 F.2d 266,
275 (5th Cir. 1976). Certification, though, "is not a
panacea for resolution of those complex or difficult state
law questions which have not been answered by the highest
court of the state.'" Transcontinental Gas
Pipeline Corp. v. Trans. Ins. Co., 958 F.2d 622, 623
(5th Cir. 1992).
Texas Supreme Court has not directly answered the issues that
confront us, and "this case involves an area of Texas
law that appears to be somewhat in flux." Kelly v.
Nichamoff, 868 F.3d 371, 377 (5th Cir. 2017).
Nonetheless, the substantial treatment of the issues by the
Texas courts of appeals and the "cogent and sound
arguments" presented by counsel give sufficient guidance
about what the Supreme Court of Texas would hold. Compass
Bank v. King, Griffin & Adamson P.C., 388 F.3d 504,
505 (5th Cir. 2004). Accordingly, we DENY the motion for
Attorney immunity from liability to ...