NEW ORLEANS – In a brief, unanimous decision entered yesterday, the U.S. Court of Appeals for the Fifth Circuit declined a petition from the City of Dallas for an en banc rehearing of a successful appeal filed by Three Expo Events, the operators of the Exxxotica series of adult trade events.
“Treating the Petition for Rehearing En Banc as a Petition for Panel Rehearing, the Petition for Panel Rehearing is denied,” Judge James L. Dennis wrote for the court in the decision. “No member of the panel nor judge in regular active service of the court having requested that the court be polled on Rehearing En Banc… the Petition for Rehearing En Banc is denied.”
In a decision issued last month, a divided panel of Fifth Circuit judges voted 2-1 to overturn the trial court’s dismissal of Three Expo’s lawsuit, holding the trial court erred in finding that Three Expo lacked standing to sue.
In response to the ruling, the City of Dallas filed its petition for a rehearing by the full Fifth Circuit – the request denied by the court yesterday.
The case goes back to 2015, when pressure from some unhappy residents and local activists pushed the Dallas City Council to prevent future Exxxotica events from being held at the Kay Bailey Hutchison Convention Center, which is owned by the City.
In early 2016, the City Council adopted a resolution banning Exxxotica 2016 from the Convention Center, at the request of Mayor Mike Rawlings. The text of the resolution included language which directed the City Manager “to not enter into a contract with Three Expo Events, LLC, for the lease of the Dallas Convention Center.”
Three Expo subsequently filed suit against the City in federal court and asked the court to issue a preliminary injunction to prevent the City from enforcing its new resolution. The district court denied the request and no Exxxotica event took place in Dallas that year.
Following the denial of its request for an injunction, Three Expo amended its complaint, arguing the City’s resolution and other actions violated the First Amendment, the Equal Protection Clause, and the Bill of Attainder Clause of the U.S. Constitution.
The City moved for dismissal of Three Expo’s complaint, asserting the company lacked standing to sue. The district court granted the City’s motion and dismissed the complaint, which led to the company’s appeal.
As noted by Dennis in the panel’s decision last month, the City’s argument that Three Expo lacked standing was based “almost entirely on the wording of the City Council’s resolution and an inference from Three Expo’s past business practice.”
“In disregard of the evidence fully describing the circumstances surrounding the actions of the mayor, the City Council members, and the aroused citizens, taken to ban Exxxotica 2016 from the Convention Center,” Dennis wrote, “the City glibly argued that ‘the Resolution did not cause Three Expo to suffer an injury in fact’ because the resolution prohibited only Three Expo from contracting with the City Manager, and Three Expo had planned to follow its usual practice of having its subsidiary entity, Exotica Dallas LLC, enter and hold the lease of the Convention Center for Exxxotica 2016.”
It’s not yet clear whether the City will ask the Supreme Court to review the Fifth Circuit’s decision, allow the case to go back to district court for trial, or attempt to negotiate a settlement with Three Expo.
