* 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

September 21, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-60128

COOPER TIRE & RUBBER CO. 

Plaintiff-Appellant

v.

JOHN BOOTH FARESE; FARESE, FARESE & FARESE, P.A.; JOHN DOES

A-A; BRUCE R KASTER; BRUCE R KASTER, P.A.

Defendants-Appellees

Appeal from the United States District Court 

for the Northern District of Mississippi

USDC No. 3:02-CV-210

Before JOLLY, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Cooper Tire & Rubber Co. (“Cooper Tire”) brings suit against attorneys

Bruce Kaster and John Booth Farese and their law firms alleging tortious

interference with business relations, tortious interference with contract, and

civil conspiracy. A prior panel of this court reversed the district court’s grant of

summary judgment in favor of Kaster and Farese and remanded for trial on the

merits. Cooper Tire & Rubber Co. v. Farese, 423 F.3d 446, 459 (5th Cir. 2005)
No. 07-60128

2

(“CooperTire I”). On remand the district court again granted summary judgment

against Cooper Tire, and we again reverse. 

I. FACTS AND PROCEEDINGS

The history of this case is set out in detail in this court’s prior opinion. Id.

at 450–54. Cooper Tire sued Kaster and Farese for their role in procuring

testimony from former Cooper Tire employee Kathy Barnett, allegedly in

violation of a separation agreement between Barnett and Cooper Tire. Cooper

Tire alleges that:

Cathy Barnett, upon ending her employment at Cooper Tire, signed

a separation agreementthat contained a non-disparagement clause;

nevertheless, she executed an affidavit, prepared with Farese,

containing false and disparaging statements about Cooper Tire;

despite knowledge of the separation agreement, Farese provided

Barnett's affidavit to another attorney, who provided it to Kaster,

for use in pending litigation in Arkansas against Cooper Tire;

despite knowledge of the separation agreement, Kaster leaked the

affidavit to the media; as a result, Cooper Tire sustained extremely

substantial losses to its stock value; and Kaster paid Farese $50,000

after the Arkansas litigation was settled.

Id. at 450. 

In the first summary judgment proceeding, the district court found that

the separation agreement was contrary to Mississippi public policy because it

protected an illegal enterprise by preventing Barnett from testifying about

wrongdoing by Cooper Tire. Id. at 456. This court reversed and remanded for

trial, holding that the agreement was not illegal under Mississippi law. Id. at

457. On remand, Kaster and Farese again moved for summary judgment and

argued that the separation agreement was illegal because it violated an obscure

anti-bribery statute, section 97-9-9 of the Mississippi Code. The district court

again granted summary judgment in favor of Kaster and Farese. Cooper Tire &

Rubber Co. v. Farese, 2007 U.S. Dist. LEXIS 1779, at *21 (D. Miss. 2007)

(“Cooper Tire II”). Cooper Tire now appeals.
No. 07-60128

3

II. STANDARD OF REVIEW

This court reviews motions for summary judgment de novo, construing all

facts and inferences in the light most favorable to the nonmoving party. Cooper

Tire I, 423 F.3d at 454.“We review de novo a district court’s interpretation of our

remand order, including whether the law-of-the-case doctrine or mandate rule

forecloses any ofthe district court’s actions on remand.” United States v. Pineiro,

470 F.3d 200, 204 (5th Cir. 2006). We review the district court’s rulings related

to sealed documents for abuse of discretion. SEC v. Van Waeyenberghe, 990F.2d

845, 848 (5th Cir. 1993). 

III. DISCUSSION

The district court erred by not correctly applying the law of the case

following remand. “The law of the case doctrine provides that a decision of a

factual or legal issue by an appellate court establishes the law of the case and

must be followed in all subsequent proceedings in the same case in the trial

court . . . .” Lyons v. Fisher, 888 F.2d 1071, 1074 (5th Cir. 1989) (internal

quotation omitted); see also Knotts v. United States, 893 F.2d 758, 761 (5th Cir.

1990). Courts have the discretion to ignore the law of the case under certain

narrow exceptions:“if substantially different evidence has been presented,there

has been an intervening change in the law, or the prior decision was clearly

erroneous and it would work a manifest injustice.” Browning v. Navarro, 887

F.2d 553, 556 (5th Cir. 1989). Absent such exceptions, the law of the case

doctrine applies not only to things decided explicitly but also to matters settled

“by necessary implication:” “those matters that were fully briefed to the

appellate court and were necessary predicates to the ability to address the issue

or issues specifically discussed are deemed to have been decided tacitly or

implicitly, and their disposition is law of the case.” Office of Thrift Supervision

v. Felt, 255 F.3d 220, 225 (5th Cir. 2001).
No. 07-60128

4

The separation agreement’s legality was fully briefed and argued before

the prior panel. Cooper Tire I held that the non-disparagement clause was legal

under Mississippi law and remanded the case for trial. 423 F.3d at 456–57.

Following remand, the district court again found that the separation agreement

was illegal, this time under section 97-9-9 of the Mississippi Code. Cooper Tire

II, 2007 U.S. Dist. LEXIS 1779, at *6–7. The district court relied on the fact that

section 97-9-9 was not before the Cooper Tire I panel. Id. This finding

misunderstands the scope of the law of the case doctrine and the substance of

Mississippi law on this topic. 

Subject to a few narrow exceptions, the law of the case controls legal

claims which were fully litigated and decided in the first appeal, even if parties

seek to introduce new legal or factual evidence on remand. See Felt, 255 F.3d at

225. In Lyons,this court held on summary judgment that a land transaction was

a nullity under Louisiana law because it lacked proper consideration. 888 F.2d

at 1073. On remand to the district court, the nonmoving party sought to

introduce evidence not before the prior panel to show that the land transaction

was supported by adequate consideration. Id. at 1075. He also sought to

introduce new evidence about Louisiana law to show that the prior panel erred

as a matter of law. Id. The district court found that these arguments were

precluded by the prior panel’s holding and did not fall under the “clear error” or

“manifest injustice” exceptions to the law of the case doctrine. Id. This court

affirmed, saying:

We might be persuaded that manifest injustice had occurred as a

result of the alleged error if Fisher had presented such evidence in

the prior proceeding and the previous panel had disregarded the

evidence because of a misunderstanding of the law, or if

consideration had become an issue only after it reached the

appellate level and Fisher had had no opportunity in the prior

proceeding to adduce such evidence. The truth is, however, that

Fisher flatly failed in the prior proceeding, for reasons best known
No. 07-60128

1 Unlike the nonmovant in Lyons, Kaster and Farese never argue that one of the

exceptions to the law of the case doctrine applies here. Instead they state that their claim does

not fall within the law of the case doctrine because MISS. CODE ANN. § 97-9-9 was not before

the prior panel.

5

to him, to adduce evidence of any consideration, despite his having

both the reason and opportunity to do so. . . . Thus, given his

opportunity and his puzzling failure to adduce such evidence earlier,

we hold that Fisher has not suffered "manifest injustice" simply

because the law-of-the-case doctrine may now preclude his tardy

introduction of that evidence.

Id. Like the nonmovant in Lyons, Kaster and Farese introduced new evidence

about Mississippi law on remand to support their argument that the separation

agreement was illegal—an issue that was fully briefed and argued on the first

appeal.1 Their claim fails both because it violates the law of the case under

Lyons, and because they are wrong about Mississippi law.

The prior panel held thatthe separation agreement was neither illegal nor

unconscionable. Cooper Tire I, 423 F.3d at 456 (“The district court held that, as

a matter of law, and regardless of whether Barnett’s affidavit was covered by the

separation agreement, that agreement was both illegal and unconscionable.

Each ruling is erroneous.”). As the prior panel noted, Mississippi courts must

look to the state constitution, statutes and caselaw to determine whether an

agreement is void under public policy. Id. at 457 (citing Heritage Cablevision v.

New Albany Elec. Power Sys., 646 So. 2d 1305, 1313 (Miss. 1994)). Thus, in

deciding whether the non-disparagement agreement violated public policy, the

prior panel was required to consider (and the parties had the opportunity and

incentive to brief) the question of whether the agreement violated any

Mississippi statutes. To decide whether the agreement was unconscionable the

panel was required to consider, and the parties to brief, the circumstances

surrounding the signing of the agreement, as well as its specific terms. In short,

the panel considered the Barnett non-disparagement agreementin full and held
No. 07-60128

6

that it was neither illegal nor unconscionable. Id. This holding became the law

of the case, and Kaster and Farese are precluded from relitigating these issues

on remand. See Felt, 255 F.3d at 225 (“[T]hose matters that were fully briefed to

the appellate court and were necessary predicates to the ability to address the

issue . . . specifically discussed are deemed to have been decided . . . implicitly,

and their disposition is law of the case.”). 

In addition to violating the law of the case, Kaster and Farese’s claim also

fails as a matter of law. Although section 97-9-9 of the Mississippi Code is over

seventy years old, Kaster and Farese cannot point to any Mississippi cases

where it has been used to invalidate a non-disparagement agreement or other

release. When the Mississippi courts have evaluated releases signed under

threat of prosecution, they have relied on ordinary principles of contract

interpretation regarding duress or fraud and not anti-bribery law. See Royer

Homes of Miss., Inc. v. Chandeleur Homes, Inc., 857 So. 2d 748, 757 (Miss. 2003)

(discussing Mississippi contractlaw with regard to fraud and duress). In Service

Fire Insurance Co. of New York v. Reed, the Supreme Court of Mississippi

invalidated a release signed by an insured under threat of criminal prosecution

by his insurer. 72 So. 2d 197, 198 (Miss. 1954). The court did not discuss state

or federal anti-bribery law when evaluating the release. Id. The court instead

looked at the particular circumstances of the insured’s situation, including the

fact that he was not represented by counsel when he signed the release, that he

was an uneducated farm hand, and thatthe insurance company had the superior

bargaining position. Id.; see also Royer Homes, 857 So. 2d at 757 (discussing

Reed); cf. Martinez v. Martinez, 860 So. 2d 1247, 1249, 1250–51 (Miss. Ct. App.

2003) (upholding a post-divorce release signed after the wife had filed and

dropped criminal charges, and was seeking additional civil damages); Estate of

Reaves v. Owen, 744 So. 2d 799, 800–01 (Miss. Ct. App. 1999) (upholding a

release from criminal and civil prosecution which was signed following a
No. 07-60128

2 The district court also suggested that the case to which Shelton v. American Insurance

Co. cited had been overruled. CooperTire II, 2007 U.S. Dist. LEXIS 1779, at *15–16 (criticizing

Dennis v. Searle, 457 So. 2d 941, 945 (Miss. 1984)). This was clear error. The case cited by the

district court as overruling Dennis only mentions it once, in the footnote of a single-judge

concurrence inveighing generally against the overuse of the term “ambiguous” in the law of

contracts. Thornhill v. Sys. Fuels, Inc., 523 So. 2d 983, 1007 n.22 (Miss. 1988). Dennis has

been citedwithapprovalnumerous times post-Thornhillfor the proposition that an ambiguous

contract should be submitted to a jury. See, e.g., Yowell v. James Harkins Builder, Inc., 645 So.

2d 1340, 1345 (Miss. 1994) (citing Dennis, 457 So. 2d 941 at 945) (stating that “‘[t]he

interpretation of an unclear contract generally involves questions of fact sufficient so that our

summary judgment procedure will be an inappropriate vehicle for final decision’”);

Cunningham v. Lanier, 555 So. 2d 685, 687 (Miss. 1989) (same). 

7

stabbing in a domestic violence case). Thus, granting summary judgment on this

ground was improper under Mississippi law. 

Next, we consider the district court’s discussion of contractual ambiguity.

Cooper Tire I held that the effective date of the separation agreement was

ambiguous, and that under Mississippi law “‘where a contract is ambiguous and

uncertain, questions of fact are presented which are to be resolved by the trier

of facts, [therefore,] the granting of summary judgment is inappropriate.’” 423

F.3d at 456 (quoting Shelton v. Am. Ins. Co., 507 So. 2d 894, 896 (Miss. 1987)).

On remand, the district court “respectfully request[ed] guidance on this issue”

because it was “the understanding of [the district court] that the bulk of

Mississippi law suggests otherwise.”2 Cooper Tire II, 2007 U.S. Dist. LEXIS

1779, at *15. The district court erred in its interpretation of Mississippi law. 

In Royer Homes, the Supreme Court of Mississippi stated “[i]f the terms

of a contract are subject to more than one reasonable interpretation, it is a

question properly submitted to the jury.” 857 So. 2d at 752. The court went on

to outline its approach to contract interpretation: 

Legal purpose or intent should first be sought in an objective

reading of the words employed in the contract to the exclusion of

parol or extrinsic evidence. . . . 
No. 07-60128

8

Secondly, if the court is unable to translate a clear

understanding of the parties’ intent, the court should apply the

discretionary “canons” of contract construction. Where the language

of an otherwise enforceable contract is subject to more than one fair

reading, the reading applied will be the one most favorable to the

non-drafting party. Finally, ifthe contract continues to evade clarity

as to the parties’ intent, the court should consider extrinsic or parol

evidence.

Id. at 753 (internal citations omitted). So under Mississippi law, the principle

of interpreting a contractin favor ofthe non-drafter is considered a discretionary

“canon of construction,” and Mississippi courts recognize that a contract may be

ambiguous even after such canons are applied. Id.

The Cooper Tire I panel held that the effective date of the separation

agreement was ambiguous as a matter of law. 423 F.3d at 456. In reaching this

determination, the prior panel necessarily had to consider whether the contract’s

apparent ambiguities could or should be resolved by applying the discretionary

canons of construction. See Felt, 255 F.3d at 225 (stating that the law of the case

includes matters decided by “necessary implication” of the court’s holding). As

the district court recognized below,this determination is the law ofthe case, and

the question of whether the effective date of the separation agreement can be

determined on summary judgment is now closed. 

Cooper Tire I also held that Cooper Tire’s claims for tortious interference

with contract, tortious interference with business relations, and civil conspiracy

involved genuine issues of material fact which should be presented to a jury. 423

F.3d at 459 (“Cooper Tire’s claims turn in large part on proving Farese and

Kaster’s motives and intent. These types of determinations . . . are particularly

ill-suited for summary judgment. In short, genuine issues of material fact
No. 07-60128

3 On remand, the district court found that all three of Cooper Tire’s claims depended

entirely on the validity of the separation agreement. Cooper Tire II, 2007 U.S. Dist. LEXIS

1779 at *1. Because we hold that the separation agreement was not illegal and remand all

three of Cooper Tire’s claims for trial, we do not reach the question of whether the district

court’s holding that all of Cooper Tire’s claims depended on the agreement was correct.

However, we note that neither civil conspiracy nor intentional interference with business

relations requires the existence of a valid contract in order to state a claim. See Cooper Tire I,

423 F.3d at 458–59 (outlining the elements for civil conspiracy and intentional interference

with business relations). 

9

preclude summary judgment.”) (internal citation omitted).3 This holding is the

law of the case and these three claims should be tried on the merits. 

A few issues remain outstanding. Cooper Tire moved for sanctions against

Kaster and Farese. It also moved to place certain sensitive documents under

seal. The district court denied both motions, and we affirm because we do not

find that the court abused its discretion. Cooper Tire also requests thatthis case

be reassigned on remand. We find that reassignment is proper under the threeprong test of In re DaimlerChrysler Corp., 294 F.3d 697, 700–01 (5th Cir. 2002)

(reassigning a case where the district courtfailed to carry outthe mandate ofthe

court of appeals on remand). First, given the history of this case on remand, we

find that it is reasonable to expect the original judge to have substantial

difficulty in putting out of his mind his previously-expressed views with regard

to Mississippi law of contract interpretation and the scope of the law of the case.

Second, we find that reassignment is advisable in order to preserve the

appearance of fairness to nonmovant Cooper Tire after it was denied an

opportunity for trial on the merits as mandated by the prior panel. Finally, we

find that concerns about waste and duplication do not outweigh the fairness

considerations since the underlying facts in the case are not exceptionally

complex, and it appears from the docket that the district court has yet to hold

any hearings. 
No. 07-60128

10

V. CONCLUSION

We REVERSE the judgment of the district court granting summary

judgment in favor of Kaster and Farese and AFFIRM its order denying Cooper

Tire’s motions for sanctions and to place documents under seal. We REMAND

for trial on the merits in accordance with the prior panel’s holding, and for

reassignment by the Chief Judge of the Northern District of Mississippi to

another judge.