The Fifth Circuit recently held that an interlocutory appeal may be taken of an order denying summary judgment based upon the judicial proceedings privilege.  See Bancpass, Incorporated v. Highway Toll Administration, LLC, No. 16-51073 (July 13, 2017)(hereinafter “Bancpass”). The Court also held that such an appeal does not deprive the trial court of jurisdiction so long as the trial judge finds that the appeal is frivolous or dilatory.

Highway Toll Administration, LLC (“HTA”) is a private company that contracts with rental car agencies to manage the billing and payment of electronic highway tolls incurred by their rental cars.  Bancpass is a competing toll services company that developed a cell phone application named “PToll App” that allowed customers to access its service electronically and at less cost.  Shortly before the app was set to launch, HTA wrote a series of allegedly defamatory letters to third parties concerning Bancpass, which filed suit against HTA.

HTA moved for summary judgment based upon the judicial proceedings privilege, and the motion was denied.  HTA appealed the district court’s order to the Fifth Circuit under the “collateral order doctrine.”  Bancpass argued that the Fifth Circuit lacked jurisdiction over the appeal because HTA’s out-of-court statements were made outside an ongoing judicial proceeding, and because HTA had forfeited its right to an interlocutory appeal because HTA was trying to use same as a litigation tactic to avoid trial.

The Fifth Circuit held that an interlocutory appeal of the denial of a motion for summary judgment based upon the judicial proceedings privilege is permitted under 28 U.S.C. § 1291.  Studying the purpose of the collateral order doctrine, the Court found that the judicial proceedings privilege acts like a claim for immunity from suit, which is effectively unreviewable once the defendant is forced to go to trial because he or she is permanently deprived of the right to avoid the burdens of litigation.  Bancpass’ argument that the statements made by HTA did not qualify for the privilege was a merits argument, not a jurisdictional one that would deprive the Fifth Circuit of jurisdiction.

The Fifth Circuit also held that a frivolous motion does not deprive the trial court of jurisdiction during the pendency of such an appeal.  The court previously recognized this exception in the context of interlocutory appeals of double jeopardy.  In United States v. Dunbar, an en banc Fifth Circuit unanimously concluded that a district court may certify to the court of appeals that an interlocutory appeal of the denial of a double jeopardy motion is frivolous and then proceed with trial rather than relinquish jurisdiction.

The court held that, like interlocutory appeals of double jeopardy motions, a district court is permitted to maintain jurisdiction over an interlocutory appeal of an immunity denial after certifying that the appeal is frivolous or dilatory.  The rule is permissive:  the district court may retain jurisdiction but is not required to do so.