The following published opinions were released by the U.S. Court of Appeals for the Fifth Circuit on April 25, 2008:

• Kirschbaum v. Reliant Energy, Inc. (Jones, C.J., Stewart, Clement, JJ.; opinion by Jones, C.J.). Affirming district court’s grant of summary judgment in favor of defendants to ERISA class action brought by employee participant in defendants’ “Savings Plan.” Plan participants held Reliant Energy Inc. (”REI”) stock and shares in an REI-administered Common Stock Fund. In May 2002, the value of REI stock fell about 40 percent after it was revealed that REI and another energy trader engaged in sham transactions known as “round-trip” trades that artificially inflated REI’s trading value. The plaintiffs alleged that REI had a duty, due to publicly known and private knowledge (the “round-trip” trades) that REI’s stock was not a prudent investment, to compensate Plan participants for the lost value, because the REI defendants breached their fiduciary duty to Plan participants. The Fifth Circuit held that ERISA exempts an EIAP, such as the Plan, from any statutory duty to diversify with regard to holding company stock; that the Plan’s terms required its funds to be invested and reinvested primarily in REI stock, stripping the Plan’s administrators of discretion to diversify the Plan’s holdings away from REI stock; that the REI defendants likely had no fiduciary duty to diversify Plan holdings, because such a duty would have substantively altered the Plan’s terms; that the fiduciaries of this sort of plan were entitled to a presumption (the “Moensch presumption”) that their decision to invest in the company’s securities is prudent; and that, even if such a fiduciary duty existed here, the plaintiffs failed to rebut the Moensch presumption.
• U.S. v. Sealed Appellant (Smith, Barksdale, Elrod, JJ.; opinion by Smith, J.). Defendant pleaded guilty to using a minor to engage in sexually explicit conduct to create child pornography, under 28 USC § 2251, and to possessing child pornography under 28 USC § 2252(a)(5)(B). On appeal, he argued that § 2251 exceeded Congress’s Commerce Clause power, and that the district court wrongly failed to suppress evidence obtained in an unlawful search, undermining his § 2252 conviction. The defendant, however, unconditionally pleaded guilty, failing to preserve these alleged non-jurisdictional defects. The Fifth Circuit held that the doctrine of waiver-by-guilty plea foreclosed consideration of the defendant’s arguments on appeal.