to demonstrate that Lead Plaintiff argued vigorously before the Fifth Circuit that it could demonstrate class-wide reliance against the Defendants under an omissions/'Affiliated Ute theory, and the Fifth Circuit rejected the argument. # 5970 at 6-9. Thus Lead Plaintiff cannot circumvent the mandate rule by arguing that it failed to claim a duty to disclose before the Fifth Circuit or by now presenting a "revised” theory of liability. A “lower court may not [be asked to] circumvent the mandate by approaching the identical legal issue under an entirely new theory.” Barber v. Int’l Bhd. of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and Helpers Dist. Lodge # 57, 841 F.2d 1067, 1070 (11th Cir.1988); see also Schwartz v. NMS Indus., Inc., 575 F.2d 553, 555-56 (5th Cir.1978) (<HOLDING>). In sum, the mandate rule bars re-litigation
holding that the trial court on remand erred when it adopted a new theory of damages contrary to the order of the court of appeals holding that the decision of the appellate court establishes the law of the case and it must be followed by the trial court on remand holding that appeal of order became moot when order was complied with and court of appeals was notified and that court of appeals erred in issuing advisory opinion on merits of appeal holding that a remand order entered by a magistrate judge was beyond his statutory authority and concluding that review was proper because the court of appeals was not reviewing the merits of the remand order itself holding that superior court erred in reversing trial courts order granting new trial and remanding for a new trial limited to apportionment of damages