In what seems like record time, the U.S. Court of Appeals for the Fifth Circuit ordered a Japanese corporate defendant to respond to the petition for rehearing en banc filed by CCL on behalf of U.S. Navy sailors injured or killed when a container ship operated by the defendant struck the U.S.S. Fitzgerald, on which the sailors served. The petition was filed Friday, and the order of a response came only after the weekend passed.

     The Fifth Circuit warns attorneys and parties that rehearing en banc is disfavored because it saps judicial resources and is rarely granted. However, in this case, the panel that decided the issue made plain that rehearing was in order because the judges in the case felt boxed in by in-circuit precedent that only the entire court, hearing a case en banc, could overturn. The precedent, under what is called the "rule of orderliness," required a ruling against the plaintiffs, but the judges indicated their agreement with the plaintiffs' arguments on why personal jurisdiction under Rule 4(k)(2) of the Federal Rules of Civil Procedure should allow the courts to entertain lawsuits against foreign defendants with substantial and continuous contacts with the United States over a matter related to those contacts, rather than require the foreign defendants also be "at home" in the United States.