Continental Automotive Systems v. Avanci ( 2022 )

Case: 20-11032 Document: 00516219884 Page: 1 Date Filed: 02/28/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
February 28, 2022
No. 20-11032 Lyle W. Cayce
Clerk
Continental Automotive Systems, Incorporated, a
Delaware corporation,
Plaintiff—Appellant,
versus
Avanci, L.L.C., a Delaware corporation; Avanci Platform
International Limited, an Irish company; Nokia
Corporation, a Finnish corporation; Nokia of America
Corporation, a Delaware corporation; Nokia Solutions and
Networks U.S., L.L.C., a Delaware corporation; Nokia
Solutions and Networks Oy, a Finnish corporation; Nokia
Technologies Oy, a Finnish corporation; Optis UP Holdings,
L.L.C., a Delaware corporation; Optis Cellular Technology,
L.L.C., a Delaware corporation; Optis Wireless Technology,
L.L.C., a Delaware corporation; Sharp Corporation, a Japanese
corporation,
Defendants—Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CV-2933
Case: 20-11032 Document: 00516219884 Page: 2 Date Filed: 02/28/2022
No. 20-11032
Before Stewart, Ho, and Engelhardt, Circuit Judges. 1
Carl E. Stewart, Circuit Judge:
This case is a new installment in a long-running battle between holders
of patents essential to wireless standards and companies that make products
incorporating those standards. Continental Automotive Systems, Inc.
(“Continental”), an auto-parts supplier, brought suit in the Northern
District of California against several standard-essential patent holders and
their licensing agent, claiming violations of federal antitrust law and
attendant state law. After the case was transferred to the Northern District
of Texas, it was dismissed at the pleading stage. Continental appealed.
For the reasons that follow, we VACATE the judgment of the district
court and REMAND with instructions to DISMISS for lack of standing.
I. FACTUAL BACKGROUND
Plaintiff-Appellant Continental is a leading provider of automotive
components, including connectivity products that utilize 2G, 3G, and 4G
cellular standards. 2 One such product is the telematics control unit
(“TCU”), a device that is embedded into the car and provides wireless
connectivity. Today, TCUs allow many of us to stream music, navigate to
destinations, and call for emergency assistance directly from our vehicles.
They are widely anticipated to facilitate an even greater array of capabilities
in tomorrow’s connected car industry.
1
Judge Ho would affirm the judgment of the district court that Continental
sufficiently alleged Article III standing but failed to state a claim under the Sherman Act.
2
A technical standard is “a specification of the design of particular goods or
components . . . needed to ensure compatibility.” John Black et al., Oxford
Dictionary of Economics (3d ed. 2009). A cellular standard is a specification that
facilitates compatibility between devices within a cellular network.
2
Case: 20-11032 Document: 00516219884 Page: 3 Date Filed: 02/28/2022
No. 20-11032
Certain Nokia Corporation entities, PanOptis Equity Holdings
entities, and Sharp Corporation (collectively, “Patent-Holder Defendants”)
all claim to own or license patents essential to the 2G, 3G, and 4G cellular
standards set by standard-setting organizations (“SSOs”). These patents are
known as standard-essential patents (“SEPs”) since suppliers like
Continental could not create standard-conforming products like TCUs
without infringing them.
Given the importance of SEPs, and the steep cost for suppliers to
switch standards, standardization can enable SEP holders to demand more
for the right to use their patents than those rights are worth. This conduct is
known as patent hold-up. 3 To mitigate the risk that SEP holders will extract
more than the fair value of their patented technologies, many SSOs require
them to agree to license their patents on fair, reasonable, and
nondiscriminatory (“FRAND”) terms for incorporation into a standard. 4
Notably, SSOs do not establish FRAND licensing rates; rather, they are set
in negotiations between SEP holders and licensees after the standard-setting
process is complete. Here, under contracts they have with SSOs, Patent-
Holder Defendants are committed to license their cellular SEPs on FRAND
terms.
3
See, e.g., Ericsson, Inc. v. D-Link Sys., Inc., 773 F.3d 1201, 1209 (Fed. Cir. 2014)
(“Patent hold-up exists when the holder of a SEP demands excessive royalties after
companies are locked into using a standard.”); U.S. Dep’t of Just. & Fed. Trade
Comm’n, Antitrust Enforcement and Intellectual Property
Rights: Promoting Innovation and Competition 5 (2007) (“The ability of
patentees to demand and obtain royalty payments based on the switching costs faced by
accused infringers, rather than the ex ante value of the patented technology compared to
alternatives, is commonly called ‘hold-up.’”).
4
Some courts and commentators use “RAND” as an “alternative, legally
equivalent abbreviation.” Microsoft Corp. v. Motorola, Inc., 696 F.3d 872, 877 n.2 (9th Cir.
2012).
3
Case: 20-11032 Document: 00516219884 Page: 4 Date Filed: 02/28/2022
No. 20-11032
Meanwhile, to facilitate patent licensing, many SEP holders enter into
agreements with entities that act as licensing agents for a patent pool. 5 Here,
Patent-Holder Defendants and thirty-seven non-parties to this suit entered
into a patent licensing agreement (the Master License Management
Agreement, “MLMA”) with Avanci. 6 Avanci acts as the licensing agent for
a pool of SEPs incorporated into cellular standards for connected devices—
namely, vehicles. For a flat fee per device, it offers a “one-stop license” for
connected cars. Avanci, https://www.avanci.com (last visited Feb. 25,
2022).
At the heart of this case is the interplay of the FRAND and MLMA
commitments, and whether this interplay presents an injury to Continental
that can be reviewed and remedied. Since all of the SEPs for which Avanci
acts as the licensing agent are encumbered by FRAND obligations, Avanci is
similarly obligated to license them on FRAND terms. Yet under the MLMA,
Avanci may sell licenses only to car manufacturers or original equipment
manufacturers (“OEMs”). OEMs are downstream from Continental in the
supply chain because they include connectivity products in their vehicles.
But the MLMA permits members of the pool to individually license their
SEPs beyond OEMs to suppliers like Continental at FRAND rates.
According to Continental, it sought SEP licenses from both Avanci
and individual Patent-Holder Defendants (collectively, “Defendants-
Appellees”) at FRAND rates to no avail, in violation of the SEP holders’
FRAND commitments. According to Defendants-Appellees, licenses were
5
A patent pool “aggregate[es] intellectual-property rights that are the subject of
cross-licensing, whether they are transferred directly by the patentee to a licensee or to
some vehicle specifically established to administer the aggregated interests, such as a joint
venture.” Patent Pool, Black’s Law Dictionary (11th ed. 2019).
6
“Avanci” collectively refers to Avanci, LLC and Avanci Platform International
Limited, both of which are parties to this lawsuit.
4
Case: 20-11032 Document: 00516219884 Page: 5 Date Filed: 02/28/2022
No. 20-11032
available to Continental on FRAND terms from individual SEP holders, and
Continental does not need SEP licenses since Avanci licenses the OEMs that
incorporate their products.
II. PROCEDURAL HISTORY
Continental sued Avanci and Patent-Holder Defendants in the
Northern District of California. In its amended complaint, 7 Continental
argued that refusals to directly sell it a license on FRAND terms constituted
not only a contractual breach but also anticompetitive conduct in violation of
the Sherman Antitrust Act of 1890 (“the Sherman Act”), 15 U.S.C. §§ 1, 2.
It further alleged violations of related state law, namely breach of contract,
promissory estoppel, and unfair competition law. Finally, Continental sought
declaratory relief as to Avanci and Patent-Holder Defendants’ FRAND
obligations and injunctive relief as to their unlawful conduct. It did not seek
damages.
Shortly after Continental filed its amended complaint, Avanci and
Patent-Holder Defendants moved to transfer venue to the Northern District
of Texas under 28 U.S.C. § 1404(a). While that motion was pending, Avanci
and Patent-Holder Defendants moved to dismiss Continental’s amended
complaint. Judge Lucy H. Koh then transferred the case, and Chief Judge
Barbara M. G. Lynn (hereinafter, “the district court”) ordered Avanci and
Patent-Holder Defendants to file a revised motion to dismiss, accounting for
Fifth Circuit law as well as “basic issues of standing and whether
[Continental] has suffered an injury that can be reviewed at this juncture.”
In their revised motion, Avanci and Patent-Holder Defendants sought
dismissal under Rules 12(b)(1) and 12(b)(6) for lack of subject matter
jurisdiction and for failure to state a claim upon which relief can be granted,
7
Continental amended to add Sharp as a defendant after Sharp sued an OEM
customer of Continental’s for patent infringement.
5
Case: 20-11032 Document: 00516219884 Page: 6 Date Filed: 02/28/2022
No. 20-11032
respectively. 8 See FED. R. CIV. P. 12(b)(1); 12(b)(6). The district court
accepted one of Continental’s theories of injury for the purposes of
constitutional standing, but it dismissed with prejudice Continental’s
Sherman Act claims for lack of antitrust standing and, alternatively, for
failure to plausibly plead certain elements. It then declined to exercise
supplemental jurisdiction over Continental’s remaining claims pursuant to
28 U.S.C. § 1367(a). Continental timely appealed.
III. STANDARD OF REVIEW
“[W]e always have jurisdiction to determine our own jurisdiction.”
Tex. Democratic Party v. Hughs, 997 F.3d 288, 290 (5th Cir. 2021). “Standing
is a component of subject matter jurisdiction.” HSBC Bank USA, N.A. v.
Crum, 907 F.3d 199, 202 (5th Cir. 2018). “The jurisdictional issue of
standing is a legal question for which review is de novo.” Id. (citation
omitted).
IV. DISCUSSION
Our court must address any jurisdictional issue before reaching the
merits of a plaintiff’s claim. See Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 94–95 (1998). “Article III of the Constitution limits the
jurisdiction of federal courts to ‘Cases’ and ‘Controversies.’” Susan B.
Anthony List v. Driehaus, 573 U.S. 149, 157 (2014) (quoting U.S. Const.
art. III, § 2). Given this limitation, a plaintiff is required to demonstrate “the
irreducible constitutional minimum of standing” to bring suit. Lujan v. Defs.
of Wildlife, 504 U.S. 555, 560 (1992).
8
They also moved to dismiss under Rule 12(b)(2) for lack of personal jurisdiction,
but the district court did not assess the issue and none of the parties appealed that decision.
See Fed. R. Civ. P. 12(b)(2).
6
Case: 20-11032 Document: 00516219884 Page: 7 Date Filed: 02/28/2022
No. 20-11032
To establish Article III standing, a plaintiff must allege that it has
“(1) suffered an injury in fact, (2) that is fairly traceable to the challenged
conduct of the defendant, and (3) that is likely to be redressed by a favorable
judicial decision.” Ortiz v. Am. Airlines, Inc., 5 F.4th 622, 628 (5th Cir. 2021)
(quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)). “An injury in fact
is ‘an invasion of a legally protected interest which is (a) concrete and
particularized, and (b) actual or imminent, not conjectural or hypothetical.’”
Wilson v. Hous. Cmty. Coll. Sys., 955 F.3d 490, 495 (5th Cir. 2020) (quoting
Lujan, 504 U.S. at 560). “A claim of injury generally is too conjectural or
hypothetical to confer standing when the injury’s existence depends on the
decisions of third parties not before the court.” Little v. KPMG LLP, 575 F.3d
533, 540 (5th Cir. 2009) (citing Simon v. E. Ky. Welfare Rights Org., 426 U.S.
26, 41 (1976)).
Continental alleges two theories of injury in fact. Neither are adequate
to prove the supplier has Article III standing, let alone that it has antitrust
standing or has suffered harm flowing from an antitrust violation.
A. Indemnity Obligations
Continental’s first theory of injury is that “should [Avanci and Patent-
Holder Defendants] succeed in procuring . . . non-FRAND license[s]
from . . . OEM[s,]” the royalties owed on those licenses “risk being passed
through to . . . Continental” via indemnity agreements. The district court
determined that this averred harm was insufficient to confer Article III
standing since it is “not . . . actual or imminent.” It emphasized that
Continental’s amended complaint did not allege that OEMs have been or
likely will be forced to take non-FRAND licenses from Defendants-
Appellees, or that those OEMs have or likely will pass non-FRAND costs
onto Continental through indemnity obligations. Thus, according to the
district court, Continental pled a mere “potential of [] being injured.”
7
Case: 20-11032 Document: 00516219884 Page: 8 Date Filed: 02/28/2022
No. 20-11032
We agree. As Avanci and Patent-Holder Defendants observe, this
alleged injury is “doubly speculative”: Continental would not be harmed
unless OEMs first accepted non-FRAND licenses and then invoked their
indemnification rights against Continental. Here, the pleadings do not
establish that OEMs have accepted such licenses and invoked such rights.
Because Continental’s “claim of injury depends on several layers of
decisions by third parties—at minimum, [OEMs]”—it “is too speculative to
confer Article III standing.” See Little, 575 F.3d at 541; see also Warth v.
Seldin, 422 U.S. 490, 499 (1975) (“[T]he plaintiff generally must assert his
own legal rights and interests, and cannot rest his claim to relief on the legal
rights or interests of third parties.”); cf. Millennium Petrochems., Inc. v. Brown
& Root Holdings, Inc., 390 F.3d 336, 343 (5th Cir. 2004) (“[A]n indemnity
claim does not . . . become actionable[] until all of the potential liabilities or
damages . . . become fixed and certain.”).
Continental seeks to bolster the adequacy of its allegations by
referencing documents that the district court requested it submit to
“convince [the court] that [Continental] ha[d] [suffered] potential injury.”
The district court ultimately made no substantive findings as to whether
Continental’s submissions were responsive or as to their contents, which it
did not consider in connection with the motion to dismiss. This was within
its discretion.
In reviewing Continental’s submissions, we note some documents at
most demonstrate that OEMs may seek to have Continental offset costs
associated with licensing. “[A]s a potential contracting party, each [] is
entitled to drive a hard bargain.” Wilkie v. Robbins, 551 U.S. 537, 558 (2007).
Once again, none of the documents indicate that an OEM has paid or will pay
Avanci and Patent-Holder Defendants non-FRAND rates for a license. And
none of the documents indicate that Continental has agreed or will agree to
8
Case: 20-11032 Document: 00516219884 Page: 9 Date Filed: 02/28/2022
No. 20-11032
indemnify OEMs for non-FRAND royalties paid to Avanci and Patent-
Holder Defendants.
“This court f[inds] no overreaching to drive a hard bargain.” Twenty
Grand Offshore, Inc. v. W. India Carriers, Inc., 492 F.2d 679, 682 (5th Cir.
1974). Defendants-Appellees’ harm to Continental on account of
Continental’s indemnity obligations to OEMs remains speculative. 9
B. Refusal to License
Continental’s second theory of injury is that Avanci and Patent-
Holder Defendants have declined to provide Continental with a license on
FRAND terms. The district court concluded that Continental pled a
sufficient injury under this theory because “[t]he denial of property to which
a plaintiff is entitled causes injury in fact.” Cont’l Auto. Sys., Inc. v. Avanci,
LLC, 485 F. Supp. 3d 712, 726 (N.D. Tex. 2020) (citing Castro Convertible
Corp. v. Castro, 596 F.2d 123, 124 n.3 (5th Cir. 1979); HTC Corp. v.
9
Meanwhile, the district court had no discretion to consider the new indemnity
allegations that Continental made in its opposition to the motion to dismiss. As the district
court explained:
Briefing may clarify unclear allegations in a complaint. Pegram v. Herdrich, 530 U.S.
211, 230 n. 10 (2000). However, “it is axiomatic that a complaint cannot be
amended by briefs in opposition to a motion to dismiss.” In re Enron Corp. Sec.,
Derivative & ERISA Litig., 761 F. Supp. 2d 504, 566 (S.D. Tex. 2011). Plaintiff
cannot amend the [amended complaint], which only suggests the possibility that
Plaintiff could be required to indemnify OEMs, with new factual allegations in its
Response seemingly averring that it has already indemnified or will indemnify
them.
Cont’l Auto. Sys., Inc. v. Avanci, LLC, 485 F. Supp. 3d 712, 725 (N.D. Tex. 2020). Notably,
Continental had the opportunity to request leave to further amend its complaint and
incorporate such allegations—an opportunity that it expressly declined, later reconsidered,
and ultimately forfeited. See infra note 13. It appears the new allegations in Continental’s
opposition suffer from the same infirmities as those in the aforementioned submissions.
Regardless, we join the district court in evaluating the harm that Continental actually pled,
which is “conjectural and hypothetical.” See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560
(1992).
9
Case: 20-11032 Document: 00516219884 Page: 10 Date Filed: 02/28/2022
No. 20-11032
Telefonaktiebolaget LM Ericsson, No. 18-CV-243, 2018 WL 6617795, at *4–5
(E.D. Tex. Dec. 17, 2018); Servicios Azucareros de Venezuela, C.A. v. John
Deere Thibodeaux, Inc., 702 F.3d 794, 800 (5th Cir. 2012)). According to the
district court, Continental’s alleged unsuccessful attempts to obtain licenses
on FRAND terms from Defendants-Appellees comprise an injury in fact
conferring Article III standing. 10 Id. at 727.
We disagree. Having reviewed the pleadings and relevant caselaw, we
cannot conclude that Defendants-Appellees denied Continental property to
which it was entitled and that Continental thereby suffered a cognizable
injury in fact.
i.
As our sister circuits have recognized, entities that create standard-
conforming products can be third-party beneficiaries under FRAND
contracts between SSOs and SEP holders. See, e.g., Microsoft Corp. v.
Motorola, Inc., 696 F.3d 872, 884 (9th Cir. 2012) (observing that Microsoft
was a third-party beneficiary of the FRAND commitments made by Motorola
to SSOs); Broadcom Corp. v. Qualcomm Inc., 501 F.3d 297, 304, 313–14 (3d
Cir. 2007) (observing that Broadcom was a third-party beneficiary of the
FRAND commitments made by Qualcomm to SSOs). After all, FRAND
obligations exist to protect the parties that must adopt a standard in order to
conduct their business.
However, Continental is conspicuously different from the parties that
our sister circuits have identified as third-party beneficiaries. In Microsoft,
10
Although Continental did not allege an unsuccessful attempt to obtain a FRAND
license from Sharp, the district court held that Sharp’s “alleged agreement with the other
Defendants to establish prices and refuse to license to Plaintiff at more favorable terms
adequately pleads that Plaintiff has been injured by the Sharp Defendant” as well. Avanci,
485 F. Supp. 3d at 726; see also supra note 7.
10
Case: 20-11032 Document: 00516219884 Page: 11 Date Filed: 02/28/2022
No. 20-11032
third-party beneficiary Microsoft was itself a member of the SSOs that had
negotiated FRAND contracts with Motorola. See Microsoft Corp. v. Motorola,
Inc., 871 F. Supp. 2d 1089, 1092 (W.D. Wash. 2012), aff’d, 696 F.3d 872 (9th
Cir. 2012) (“Microsoft and Motorola are both members of the Institute of
Electrical and Electronics Engineers (‘IEEE’) and the International
Telecommunication Union (‘ITU’).”). Meanwhile, in Broadcom, third-party
beneficiary Broadcom was a direct competitor of SEP holder Qualcomm that
needed its SEP licenses to operate. See Broadcom, 501 F.3d at 304–05 (noting
that both Broadcom and Qualcomm develop chipsets that must license
Qualcomm’s FRAND-encumbered SEPs).
Continental is not similarly situated to Microsoft and Broadcom. The
supplier does not claim membership in the relevant SSOs and, crucially, it
does not need SEP licenses from Defendants-Appellees to operate; Avanci
and Patent-Holder Defendants license the OEMs that incorporate
Continental’s products. No evidence suggests that Patent-Holder
Defendants and SSOs intended to require redundant licensing of third parties
up the chain, which is unnecessary to effectuate the purpose of the FRAND
commitments and reduce patent hold-up. “[A] beneficiary of a promise is an
intended beneficiary if recognition of a right to performance in the beneficiary
is appropriate to effectuate the intention of the parties.” Restatement
(Second) of Contracts § 302 (Am. L. Inst. 1981). Continental
does not appear to be an intended beneficiary contractually entitled to a
license on FRAND terms. And as an incidental beneficiary, it would have no
right to enforce the FRAND contracts between the Patent-Holder
Defendants and the SSOs. Id.
ii.
But assuming Continental is contractually entitled to a license on
FRAND terms as a third-party beneficiary, the pleadings reflect that it has
suffered no cognizable injury. Put another way, even if Continental has rights
11
Case: 20-11032 Document: 00516219884 Page: 12 Date Filed: 02/28/2022
No. 20-11032
under FRAND contracts, the contracts have not been breached because the
SEP holders have fulfilled their obligations to the SSOs with respect to
Continental. The supplier acknowledges that Avanci and Patent-Holder
Defendants are “actively licensing the SEPs to the OEMs[,]” which means
that they are making SEP licenses available to Continental on FRAND terms.
As it does not need to personally own SEP licenses to operate its business, it
has not been denied property to which it was entitled. And absent a “denial
of property to which a plaintiff is entitled,” Continental did not suffer an
injury in fact. Avanci, 485 F. Supp. 3d at 726.
In support of its holding that the denial of property to which
Continental was entitled caused the supplier injury in fact, the district court
cited three cases in which courts identified deprivations that conferred
Article III standing. See Castro, 596 F.2d at 124 n.3 (observing that the denial
of an employer’s alleged right under a group insurance contract to have
proceeds paid to a legally correct beneficiary was a sufficient allegation of
injury in fact); HTC, 2018 WL 6617795, at *4–5 (observing that the denial of
an OEM’s alleged right to a SEP license on FRAND terms was a sufficient
allegation of injury in fact); Servicios, 702 F.3d at 800 (observing that the
denial of a corporation’s alleged right to commissions and profits deriving
from an exclusive distributorship contract was a sufficient allegation of injury
in fact).
We certainly do not take issue with these standing determinations and
the core tenet of federal jurisdiction that “[i]njuries to rights recognized at
common law—property, contracts, and torts—have always been sufficient
for standing purposes.” Servicios, 702 F.3d at 800 (citing Erwin
Chemerinsky, Federal Jurisdiction § 2.3, at 67–68 (6th ed.
2012)). Rather, we reiterate that Continental, the Plaintiff-Appellant in this
case, experienced no such injury. We also note that in none of the cases cited
by the district court was there an allegation, like there is here, that the
12
Case: 20-11032 Document: 00516219884 Page: 13 Date Filed: 02/28/2022
No. 20-11032
plaintiff could otherwise receive the benefit of a right conferred by contract
even if the contractual right was “denied” directly. 11
iii.
On the face of Continental’s complaint, there are no allegations that
Patent-Holder Defendants have sued or threatened to sue Continental for
infringing their SEPs. To the extent that Continental is alleging Patent-
Holder Defendants have sued or threatened to sue OEMs for infringement,
requiring OEMs to accept an Avanci license on non-FRAND terms, the
OEMs may find it easier to establish an injury in fact. See HTC, 2018 WL
6617795 (holding that Ericsson, an OEM, had standing to bring a
counterclaim against HTC for breaching its obligation to offer Ericsson a
license on FRAND terms); see also Broadcom, 501 F.3d 297 (holding that a
deceptive FRAND commitment to a SSO may constitute actionable
anticompetitive conduct under the Sherman Act). Similarly, the SSOs may
find it easier to establish an injury in fact if Patent-Holder Defendants
breached the FRAND contracts that they entered into for incorporation into
cellular standards by charging non-FRAND rates. 12 But these are not
Plaintiffs-Appellants we have before us.
11
Avanci and Patent-Holder Defendants also argue that not having to take a license
may allow Continental to produce its components at a lower cost. See Fed. Trade Comm’n
v. Qualcomm Inc., 969 F.3d 974, 996 (9th Cir. 2020) (observing that a policy of providing
“de facto licenses” to component suppliers “allow[s]” Qualcomm’s “competitors to
practice Qualcomm’s SEPs (royalty-free) before selling their chips to downstream
OEMs”).
12
And to the extent that suing SEP holders is impossible or undesirable, the SSOs
could conceivably troubleshoot on the front-end, clarifying FRAND rates and providing
explicit enforcement mechanisms in their operating documents.
13
Case: 20-11032 Document: 00516219884 Page: 14 Date Filed: 02/28/2022
No. 20-11032
In sum, the district court erred in holding that Continental had Article
III standing to bring its claims. Given that we lack jurisdiction, we do not
reach the parties’ arguments as to antitrust standing and the merits. 13
V. CONCLUSION
For the foregoing reasons, the judgment of the district court is
VACATED. The case is REMANDED with instructions to DISMISS
Continental’s claims for lack of standing.
13
While Continental states in its opening brief that the district court committed
“error” in denying it leave to amend, Continental neither explains what the error was nor
directly addresses the reasoning of the district court. “Given [Continental’s] failure to
adequately brief this issue, [it] has [forfeited] it on appeal.” See Denson v. BeavEx, Inc.,
612 F. App’x 754, 759 (5th Cir. 2015) (per curiam) (citing Procter & Gamble Co. v. Amway
Corp., 376 F.3d 496, 499 n.1 (5th Cir. 2004) and Fed. R. App. P. 28(a)(8)(A)); see also
Ortiz v. Am. Airlines, Inc., 5 F.4th 622, 627 (5th Cir. 2021) (observing that “allud[ing] to an
argument” in a brief is not sufficient to avoid forfeiture of that argument). Continental’s
attempt in its reply brief to clarify how further amendment would not prove futile does not
save it from forfeiture. See Dominguez-Gonzalez v. Clinton, 454 F. App’x 287, 291 n.1 (5th
Cir. 2011) (per curiam) (citing Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993)). We also
note that in the Rule 16 conference the district court expressly asked counsel for
Continental, “[d]o you want to amend your pleadings?” and counsel responded, “our
pleading is absolutely sufficient.”
14