United States Court of Appeals

for the Fifth Circuit ____________

No. 22-30663

____________

Bobbys Country Cookin, L.L.C., individually and on behalf of all 

persons or entities nationwide who are similarly situated; Casa Manana, 

Incorporated; Que Pasa Taqueria, L.L.C.; Casa Tu 

Sulphur, L.L.C., 

Plaintiffs—Appellees, 

versus

Waitr Holdings, Incorporated, 

Defendant—Appellant. 

______________________________

Appeal from the United States District Court 

for the Western District of Louisiana

USDC No. 2:19-CV-552

______________________________

Before Jones, Clement, and Haynes, Circuit Judges.

Per Curiam:*

This is a contract modification case. Bobby’s Country Cookin’, 

L.L.C., represents a class of restaurants that claim Waitr Holdings, Inc., a 

food delivery service, should be held liable for damages stemming from a 

breach of contract. Their dispute revolves around the service fees Waitr 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

June 29, 2023

Lyle W. Cayce

Clerk

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charged the restaurants, specifically, its decision to increase those fees 

several times unilaterally. The district court denied Waitr’s motion for

partial summary judgment, finding that Louisiana contract law prohibits

parol evidence of contract modification when the contract in question is 

integrated and requires any modifications to be in a signed writing. In the 

alternative, the district court determined there was a factual dispute barring 

partial summary judgment. We AFFIRM in part, REVERSE in part, and 

REMAND for further proceedings consistent with this opinion.

I

Waitr operates an online food delivery service that contracts with 

restaurants to deliver meals. Customers select from Waitr’s network of 

partner restaurants and order through its platform. Waitr receives and 

transmits the orders to its partner restaurants, processes the payments, picks 

up the food, and delivers the order to the customer. In exchange, the 

restaurants and Waitr split the proceeds, with Waitr automatically deducting 

its service fee from the customer’s payment. 

Bobby’s Country Cookin’ contracted with Waitr on July 27, 2017, to 

join Waitr’s network. Bobby’s agreed to a ten percent service fee on every 

order as part of their agreement. The contract included an “Entire 

Agreement & Changes” provision which states:

This Agreement and the Order or exhibits hereto constitute the 

entire Agreement between the parties, and supersedes any 

prior or contemporaneous negotiations or agreements, 

whether oral or written, related to this subject matter. 

Customer is not relying on any representation concerning this 

subject matter, oral or written, not included in this Agreement. 

No representation, promise or inducement not included in this 

Agreement is binding. No modification of this Agreement is 

effective unless in writing and signed by an authorized 

representative of each party, and no waiver is effective unless 

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the party waiving the right signs a waiver in writing. Nothing 

in this Agreement, express or implied, is intended to confer or 

shall be deemed to confer upon any persons or entities not 

parties to this Agreement, any rights or remedies under or by 

reason of this Agreement.

Approximately a year later, Waitr unilaterally increased its fee to fifteen 

percent without obtaining both parties’ written signatures.

On April 30, 2019, Bobby’s filed a class action complaint in federal 

court alleging Waitr breached its contracts with its network restaurants by 

unilaterally increasing its service fees, did so in bad faith, and was unjustly 

enriched. Bobby’s later amended its complaint, adding several named 

restaurant plaintiffs and proposing a second class irrelevant to the appeal 

before us. 

Waitr moved for partial summary judgment, arguing the restaurants’

breach of contract claim failed as a matter of law because they acquiesced to 

the fee increases or, in the alternative, were subject to estoppel. Without an 

underlying breach of contract, Waitr also contended that the restaurants’ bad 

faith breach of contract cause of action necessarily failed. Finally, Waitr 

argued that because the restaurants had remedies available at law, they could 

not sustain their unjust enrichment claim. 

The district court granted in part and denied in part the motion for 

partial summary judgment. First, it found that the restaurants’ contracts 

were fully integrated and that Waitr had not modified its agreements in 

writings signed by both parties. It then held that Louisiana law bars parol 

evidence from being used to prove the existence of a contractual modification 

by acquiescence when the contract in dispute is fully integrated and requires 

modification to be in a signed writing. In the alternative, the district court 

held that the parties had a genuine dispute of material fact regarding whether 

they agreed to modify their contracts. Second, the district court sided with 

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Waitr that the restaurants had remedies available at law and could not sustain

an unjust enrichment cause of action. 

Waitr filed a motion to alter or amend the judgment or, alternatively, 

to certify an interlocutory appeal. The district court granted the alternative 

motion. Waitr timely applied to this court, and a motion panel granted its 

application, providing us with jurisdiction under 28 U.S.C. § 1292(b). 

II

We review a grant (or denial) of summary judgment de novo. Davidson 

v. Fairchild Controls Corp., 882 F.3d 180, 184 (5th Cir. 2018). A “court should 

grant summary judgment when ‘there is no genuine dispute as to any material 

fact and the movant is entitled to judgment as a matter of law.’” Id. (quoting 

Fed. R. Civ. P. 56(a)). The parties agree that Louisiana contract law 

controls the merits of this appeal. “In Louisiana, the interpretation of an 

unambiguous contract is an issue of law for the court.” Taita Chem. Co. v. 

Westlake Styrene Corp., 246 F.3d 377, 386 (5th Cir. 2001).

III

Waitr challenges the district court’s holding that Louisiana law bars 

parol evidence when a contract requires modifications in writing and is a fully 

integrated document. It also argues that the district court erred in its 

alternative finding that there is a dispute of material fact regarding whether 

the restaurants intended to modify their contracts “by silence, inaction, or 

implication.” 

In its order, the district court correctly found that the restaurants’ 

contracts were fully integrated, and Waitr does not dispute this conclusion 

on appeal. Nor could it, the “Entire Agreement & Changes” provision 

clearly states, “[t]his Agreement and the Order or exhibits hereto constitute 

the entire Agreement between the parties, and supersedes any prior or 

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contemporaneous negotiations or agreements, whether oral or written, 

related to this subject matter.” What Waitr does challenge are the effects of 

such a clause on parol evidence submitted to the court to prove a subsequent

modification. 

“The general rule in Louisiana is that a court may not consider parol 

evidence to alter the terms of a written agreement when that agreement is a 

complete and accurate statement of all the terms agreed upon by the parties.” 

King v. Univ. Healthcare Sys. LC, 645 F.3d 713, 719 (5th Cir. 2011) (quotation 

marks and citation omitted). However, the Louisiana Supreme Court has 

long held that “the Civil Code does not forbid the proving by parol evidence 

of a subsequent agreement to modify or to revoke a written agreement.” 

Salley v. Louviere, 162 So. 811, 813 (La. 1935). In Louisiana, any “contract 

that is not required by law to be in writing may be modified” by a subsequent 

unwritten agreement. Schindler Elevator Corp. v. Long Prop. Holdings, L.L.C., 

182 So. 3d 233, 241 (La. Ct. App. 2015) (applying this rule to an alleged oral 

agreement to modify a written contract). Service agreements in Louisiana, 

such as the contracts between Waitr and the restaurants, do not need to be in 

writing to be legally enforceable. Id. 

We have further held that under Louisiana law, even integrated, 

written contracts requiring all modifications to be in writing can be modified 

by oral agreement or conduct. See Taita, 246 F.3d at 387 (“[I]t is well 

established [in Louisiana law] that even if the written contract contains a 

provision requiring that all modifications be in writing . . . either oral 

agreement or conduct can nonetheless prove modification.”); see also King, 

645 F.3d at 719 (“Even a written merger or integration clause is not a per se 

bar on consideration of parol evidence” of a contract modification under 

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Louisiana law.).1 But, depending on the facts of a case, just because an 

integration clause does not always bar parol evidence in favor of modification 

does not mean that it can never bar such evidence. See Omnitech Int’l, Inc. v. 

Clorox Co., 11 F.3d 1316, 1328 (5th Cir. 1994). Indeed, the district court

should enforce a merger clause if it correctly reflects the parties’ intentions. 

King, 645 F.3d at 719. 

So, the district court erred when it found that it must bar the 

introduction of parol evidence here because “[b]y its very definition an 

integration or merger clause negates the legal introduction of [such]

evidence.” Instead, the correct summary of Louisiana law would be that a 

court may bar parol evidence of modification when “the facts of the instant 

case compel a conclusion that the merger clause correctly reflected the 

parties’ intentions and should thus be enforced as written.” Omnitech, 11 

F.3d at 1328. We, therefore, REVERSE the district court’s order to the 

extent that it relied on an incorrect understanding of Louisiana law. 2

Moving on to investigate the facts before us on appeal, we find the 

district court correctly denied partial summary judgment because there is a 

dispute of material fact regarding whether the parties modified their contract. 

_____________________

1 The restaurants, for their part, argue that our conclusions in Taita were federal 

misinterpretations of Louisiana law that erroneously expanded a “Louisiana Construction 

Contract Exception.” In Bobby’s’ and its co-plaintiffs telling, Louisiana law only allows 

parol evidence when a party seeks to show an integrated construction contract was later 

modified. However, this argument lacks merit and is borderline frivolous. See, e.g., Salley, 

162 So. 811 (non-construction lease dispute); Ill. Cent. Gulf R.R. Co. v. Int’l Harvester Co., 

368 So. 2d 1009 (La. 1979) (same); Schindler, 182 So. 3d 233 (non-construction elevator 

service case), Monroe v. Physicians Behavioral Hosp., LLC, 147 So. 3d 787 (La. Ct. App. 

2014) (non-construction unpaid wages claim). 

2 We also disagree with the district court’s conclusion that our holding—by 

allowing the parties to argue whether they modified their integrated contracts “by silence 

or acquiescence”—renders “[p]laintiffs’ claims . . . moot[.]” Instead, it simply means that 

the parol evidence issue may proceed, not that it is dispositive in this case.

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In contract modification cases, “the party urging modification,” here Waitr, 

“must establish” that the parties agreed to modify their written agreement. 

Taita, 246 F.3d at 387. In doing so, Waitr may use “silence” in “special 

circumstances” to demonstrate “it reasonably believed” the restaurants 

accepted its modification. Id. at 386; La. Civ. Code art. 1942. In short, 

Waitr must show that there was a meeting of the minds consenting to a 

contract modification between the restaurants and itself. Taita, 246 F.3d at 

387.

In its order, the district court noted that the restaurants denied

agreeing to modify their contracts with Waitr when they continued using its 

service despite the higher fees. The court determined that this evidence 

created a genuine dispute of material fact as to whether the parties reached a 

meeting of the minds regarding a contract modification. The district court 

then implicitly denied partial summary judgment on this alternative ground.

On appeal, Waitr reiterates its argument in support of its motion for 

partial summary judgment. Before the district court, Waitr said that the 

restaurants’ tacitly agreed to a contract modification. It pointed to evidence 

that Bobby’s and its co-plaintiffs failed to protest higher service fees and 

continued to use Waitr’s application for months after the fee increase. The

restaurants countered in the proceedings below that they reasonably delayed

their response by the terms of their contracts. And before us and the district 

court, Bobby’s and its co-plaintiffs point to evidence in the form of affidavits 

that they never agreed to an increase nor intended to agree to such an increase 

by continuing to use Waitr’s service.3 Based on this evidence, a reasonable 

_____________________

3 The restaurants, for the first time on appeal, argue that additional facts, 

specifically that Waitr required them to make costly investments and that they protested 

the fee increases, create a genuine dispute of material fact on whether the parties agreed to 

a contract modification. Because these arguments were not made below, they are forfeited 

on appeal. See Rollins v. Home Depot USA, Inc., 8 F.4th 393, 397 (5th Cir. 2021) (“A party 

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factfinder could side with either party, and the district was right to conclude 

that whether Waitr and the restaurants agreed to a contract modification is a 

genuine dispute of fact that is best left to a jury. Thus, we AFFIRM the 

district court’s order to the extent that it denied the motion for partial 

summary judgment due to a genuine factual dispute.

IV

We AFFIRM the order denying the motion for partial summary 

judgment in part insofar as it relied on a genuine dispute of material fact. We

REVERSE the order to the extent that it depends on an erroneous 

understanding of Louisiana contract law. We further REMAND to the 

district court for additional proceedings consistent with this opinion.

_____________________

forfeits an argument by failing to raise it in the first instance in the district court—thus 

raising it for the first time on appeal . . . .”) (quotation marks and citation omitted).

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