IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-40850

JULIE GLEASON; TOM GLEASON, 

 Plaintiffs - Appellants Cross-Appellees

v.

MARKEL AMERICAN INSURANCE COMPANY, 

 Defendant - Appellee Cross-Appellant

Appeals from the United States District Court

for the Eastern District of Texas

USDC No. 4:17-CV-163

Before HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Tom and Julie Gleason were the president and vice president, 

respectively, of Oregon Ice Cream, LLC. Tom Gleason also served as Oregon 

Ice Cream’s CEO. Oregon Ice Cream had an insurance policy with Markel 

American Insurance Co. (MAIC), which included Directors & Officers liability 

coverage.

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

July 30, 2019

Lyle W. Cayce

Clerk

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The Gleasons eventually sold their equity interests in Oregon Ice Cream 

to OIC Holdings, LLC. After the sale, alleging that the Gleasons had 

misrepresented Oregon Ice Cream’s financial condition and committed other 

misconduct, OIC Holdings sued the Gleasons in Texas court. The Gleasons 

submitted a claim to MAIC, which concluded that Oregon Ice Cream’s liability 

policy did not require it to defend the Gleasons in the OIC Holdings lawsuit.

The Gleasons sued MAIC in state court for allegedly breaching its duties 

to defend and indemnify them in the OIC Holdings lawsuit, and MAIC removed 

to the Eastern District of Texas. MAIC moved for summary judgment, arguing 

that the Gleasons’ claim was barred by a policy exclusion encompassing “any 

Claim made against any Insured . . . . based upon, arising out of or in any 

way involving . . . the actual, alleged, or attempted purchase or sale, or offer or 

solicitation of an offer to purchase or sell, any debt or equity securities.” In 

response, the Gleasons argued that the OIC lawsuit fell under an exception to 

the exclusion for “any Claim . . . based upon, arising, out of, or in any way 

involving the purchase or sale, or offer or solicitation of an offer to purchase or 

sell, any debt or equity securities in a private placement transaction exempt 

from registration under the Securities Act of 1933, as amended.” They 

primarily argued that the transaction at issue in the OIC lawsuit was exempt 

from registration under section 4(a)(2) of the Securities Act of 1933, which 

exempts “transactions by an issuer not involving any public offering.”1 The

Gleasons also briefly argued that if the transaction was not exempt under 

section 4(a)(2), it was exempt as a “transaction[ ] by any person other than an 

issuer, underwriter, or dealer.”2 They did not, however, cite any relevant case 

 

1 See 15 U.S.C. § 77d(a)(2).

2 See id. § 77d(a)(1).

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law or other authority to support their argument that the transaction fell 

under section 4(a)(1).

The district court granted MAIC’s motion for summary judgment, 

concluding that the OIC lawsuit fell under the policy exclusion and that the 

underlying transaction was not exempt from registration under section 4(a)(2) 

because the Gleasons were not “issuers.” The Gleasons moved for 

reconsideration, arguing more forcefully that if they were not issuers, then the 

transaction was a private placement transaction exempt from registration 

under section 4(a)(1). The district court denied the motion, observing that in 

the Gleasons’ summary judgment opposition they “never explicitly cited 15 

U.S.C. § 77d(a)(1) as the provision [they] relied upon, never referenced this as 

Section 4(a)(1), never cited any case law, and did not provide a definition of 

‘underwriter’ or ‘dealer’” in their opposition to summary judgment.

We review a district court’s grant of summary judgment de novo and its

refusal to consider new arguments on a motion for reconsideration for abuse of 

discretion.3 We have carefully reviewed the briefs, relevant portions of the 

record, and applicable law, and have heard oral argument. We agree with the 

district court that the Gleasons failed to adequately raise their section 4(a)(1) 

argument in their initial opposition to MAIC’s summary judgment motion.4

While the Gleasons now argue that section 4(a)(1)’s applicability is so obvious 

that the district court committed a clear error of law or manifest injustice, their 

 

3 See, e.g., In re La. Crawfish Producers, 852 F.3d 456, 462 (5th Cir. 2017) (observing 

that when the district court refuses to consider new materials attached to a motion for 

reconsideration, that decision is reviewed for abuse of discretion); LeClerc v. Webb, 419 F.3d 

405, 412 n.13 (5th Cir. 2005) (affirming denial of a motion for reconsideration as within the 

district court’s discretion when the motion impermissibly asserted new arguments not raised 

previously). 

4 See, e.g., Keelan v. Majesco Software, Inc., 407 F.3d 332, 340 (5th Cir. 2005) (noting

that in the related context of preserving an argument for appeal, a party “must press and not 

merely intimate [an] argument during the proceedings before the district court”). 

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able lawyers went in a different direction when opposing summary judgment. 

The district court did not abuse its discretion in denying the Gleasons’ motion 

for reconsideration.5

The district court’s reasoning was sound, and we affirm its judgment. We 

need not reach the issue raised by MAIC’s cross-appeal.

 

5 See Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004) (explaining that 

reconsideration “serves the narrow purpose of allowing a party to correct manifest errors of 

law or fact or to present newly discovered evidence,” and is “not the proper vehicle for 

rehashing evidence, legal theories, or arguments that could have been offered or raised before 

the entry of judgment” (alterations omitted)).

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