In this edition of Litigation Roundup, the Fifteenth Court of Appeals decides a case of first impression in favor of Google in the biometric data lawsuit Texas is pursuing, the state and W&T Offshore join forces to sue the outgoing Biden administration, and a jury in San Antonio determines a barbecue restaurant owes millions in a suit over hot barbecue sauce.
Also, late last week a former associate deputy attorney general for Texas, Ryan Baasch, was appointed to the White House National Economic Council by President Donald Trump. Baasch, who was an associate attorney at Latham & Watkins for five years before joining Texas Attorney General Ken Paxton in October 2021, had launched the largest state data privacy enforcement team in the country while with the OAG. His new role as special assistant to the president for economic policy will focus on tech policy for the NEC.
Paxton issued a statement touting Baasch’s appointment Friday, saying he had “served the people of Texas with distinction and delivered victory after victory in our fight against government overreach, predatory corporations, and Big Tech censorship.”
The Litigation Roundup is a weekly feature highlighting the work Texas lawyers are doing inside and outside the state. Have a development we should include next week? Please let us know at tlblitigation@texaslawbook.net.
Bexar County District Court
Bill Miller Bar-B-Q Hit with $2.8M Injury Verdict
A woman who was left with second-degree burns after spilling hot barbecue sauce on her thigh is owed $2.8 million, a jury in Bexar County recently determined.
The jury returned its verdict in favor of 19-year-old Genesis Monita Jan. 17. Monita filed suit in October 2023, alleging the temperature of the barbecue sauce she purchased from a Bill Miller Bar-B-Q drive-thru was dangerously hot and that the business failed to warn her of the danger, failed to put the sauce in a “container that was adequate to hold and contain the dangerously hot” sauce and failed to train its employees to check the temperature of the sauce before serving it to customers.
The San Antonio Express-News reported Monita alleged the policy of the barbecue fast food joint is to serve the sauce at 165 degrees while the sauce that injured her, served in a four-ounce plastic cup, was 189 degrees. Monita alleged the sauce should have been served in a plastic foam cup, which insulates heat better than plastic.
Jurors heard evidence of a prior incident where a customer spilled barbecue sauce on herself in 2021 and also suffered second-degree burns, according to the Express-News, but that no change in policy resulted from either incident.
Bexar County District Judge Christine Hortick presided over the case.
Monita is represented by Lawrence G. Morales of San Antonio.
Bill Miller is represented by Shan Egliskis of McCoy Leavitt Laskey and Barry A. McClenahan of San Antonio.
The case number is 2023CI23261.
Delaware Chancery Court
Plano-Based Trintech Pursues Breach Suit in Delaware
Plano-based software company Trintech Inc. and London-based Trintech UK have filed suit against Fiserv Inc, Fiserv’s European counterpart and CheckFree Services Corp accusing the defendants of breaching a purchase and sale agreement.
Trintech, which makes financial corporate performance management software, alleges it entered a purchase and sale agreement with Fiserv, which provides financial technology services, in June 2023 for “two software solutions and associated business lines.”
The suit accuses Fiserv of making misrepresentations during the due diligence period before the purchase and sale agreement was executed in July 2023 regarding “the material reduction of nearly a dozen contracts and misrepresented — or worse, manipulated — financial information relating to at least half a dozen customers.”
After closing, when Trintech “discovered the inaccuracies,” it notified Fiserv, which the lawsuit alleges has “failed to address these errors.”
The lawsuit, which brings claims for breach of contract and indemnification, was filed Jan. 8 and assigned to Vice Chancellor Morgan T. Zurn.
Trintech is represented by A. Thompson Bayliss and Samuel D. Cordle of Abrams & Bayliss and Jamil A. Alibhai, Julie M. Christensen and Maddison L. Craig of Munsch Hardt Kopf & Harr.
The defendants are represented by James H.S. Levine of Troutman Pepper Locke.
The case number is 2025-0005.
Northern District of Texas
3M Taps Gibson Dunn to Defend Against Paxton’s PFAS Suit
There has been recent movement in a month-old lawsuit Texas filed against 3M and DuPont, accusing the companies of misrepresenting the safety of Teflon, Stainmaster and Scotchgard, with defense counsel filing appearances and a change in venue.
Texas alleges in the putative class action lawsuit that the companies knew about the dangers of PFAS for years but misrepresented the potential risks in marketing various household products to the public.
“Defendants marketed products containing harmful PFAS chemicals for over 70 years and were aware of the harmful effects of PFAS chemicals for over 50 years,” the 45-page lawsuit alleges. “Despite this knowledge, Defendants continued to market PFAS products and chemicals in Texas and elsewhere as safe for consumer use, misrepresent their environmental and biological risks, and conceal risks of harm from the public.”
Texas had originally filed the lawsuit, which brings claims for violations of the Texas Deceptive Trade Practices Act, Dec. 11 in Johnson County district court. 3M filed notice it was removing the case to federal court Jan. 16.
3M has hired Gregg J. Costa and Ashley E. Johnson of Gibson Dunn to defend it against the claims related to the manufacturing of PFAS — perfluoroalkyl and polyfluoroalkyl substances, sometimes called “forever chemicals” — while DuPont has turned to a legal team from Shook, Hardy & Bacon — led by Brent Dwerlkotte — for its defense. Texas has tapped outside counsel from The Lanier Law Firm and Kelley Drye to help bring the litigation.
The case has been assigned to U.S. District Judge Ed Kindeade.
Texas is represented by Katie B. Hobson, Kellie E. Billings-Ray, Brittany E. Wright, and Jake Marx of the office of the attorney general, William J. “Bill” Jackson, Jennifer C. Barks. Lauren H. Shah, Maria F. Pimienta, David I. Zalman, Glenn T. Graham and Elizabeth N. Krasnow of Kelley Drye & Warren and Mark Lanier and Alex Brown of The Lanier Law Firm.
The case number is 3:25-cv-00122.
Eastern District of Texas
McGuireWoods Reps W&T Offshore in One of Paxton’s Final Biden Administration Suits
Texas Attorney General Ken Paxton, who has kept busy the past four years filing more than 100 lawsuits against the Biden administration, got one more filed on Monday that aims to prevent a ban on offshore drilling.
W&T Offshore joined Texas in the lawsuit that was filed in response to a Jan. 6 action by then-President Joe Biden to permanently withdraw parts of the Outer Continental Shelf from oil and gas activities.
The lawsuit alleges Biden’s “last-minute attempt to dictate federal policy on oil and natural gas in perpetuity runs afoul of the Constitution.”
“It is Congress — not the Executive — that has the power ‘to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States,’” the suit reads. “By permanently withdrawing the eastern Gulf of Mexico from consideration for oil and gas development, President Biden has overstepped his authority, infringing upon the powers granted to Congress by the Framers, and violating separation of powers protections enshrined in the Constitution.”
The filing marked Texas’ 106th lawsuit against the current administration. In a news release announcing this action, Paxton touted that he was “the first state attorney general to sue Biden just three days into his failed administration.”
“Now, I will be the last AG to sue Biden on his way out of Washington,” he said.
The case has been assigned to U.S. District Judge Michael J. Truncale.
W&T is represented by Yasser A. Madriz of McGuireWoods.
Texas is represented by Ryan G. Kercher, Wesley S. Williams and Garrett Greene of the attorney general’s office.
Counsel information for the Biden administration wasn’t available Tuesday.
The case number is 9:25-cv-00010.
Fifteenth Court of Appeals
Google May Depose State in AG’s Suit Over Biometric Data
Google is entitled to depose the State of Texas in litigation filed by Attorney General Ken Paxton alleging the search engine giant improperly captures biometric identifiers without Texas consumers’ consent, according to a split decision by the state’s newest court of appeals issued Jan. 16.
A lawsuit filed by the state in Midland County alleges violations of the Texas Deceptive Trade Practices Act and the Texas Capture or Use of Biometric Identifier Act. A lawsuit in Victoria County alleges DTPA violations for collecting consumers’ locations and browsing information unlawfully.
In each case, Google filed a motion to compel the state’s deposition and, in the Midland case, also sought in the alternative to compel the Office of the Attorney General. The trial courts denied Google’s motions to compel and did not address the scope of Google’s topics, which include the number of complaints the attorney general’s office received about captured biometric information, any harm that was caused and how the office would calculate penalties it seeks to recover.
Google’s appeal was one of initial cases heard by the court during its first oral argument session last October.
The majority opinion in the consolidated case was written by Justice Scott K. Field and joined by Justice Woodie Jones, who sat by assignment to replace Justice April Farris, who did not participate in the case. Jones is a former chief justice of the Third Court of Appeals.
The issue of whether Google is allowed to depose the state under Rule 199 of the Texas Rules of Civil Procedure appears to be one of first impression in Texas, Field said.
The majority disagreed with the state and the dissenting opinion by Chief Justice Scott Brister that the OAG will have to testify on behalf of the state. The majority denied Google’s alternative request in the Midland case to compel a deposition of the OAG.
“A party may choose who will testify in response to an organizational deposition notice; in fact, a party may designate different individuals to testify on each individual topic if it so chooses,” Field said.
Chief Justice Scott Brister said the attorney general acts in its dual capacity as counsel and party.
“The Court’s opinion complicates this accommodation by construing Rule 199 to require the OAG to act in a third capacity, as a witness at an oral deposition of the State,” Brister said. “This problem does not generally arise in suits by or against a state administrative agency or a state officer in an official capacity, because in those cases there is a person who can testify or appoint someone to do so on the agency’s behalf. But in suits by or against the State, there is only the State itself and its legal counsel at OAG.”
The majority said each trial court should consider the parameters of the State’s deposition, including the topics on which the deposition is allowed to proceed. However, depositions are not expected to proceed in the Victoria County case as the Thirteenth Court of Appeals on Jan. 9 dismissed the AG’s claims against Google for lack of personal jurisdiction.
At oral argument, Google was represented by Robyn Bigelow Hargrove, a partner at Scott Douglass & McConnico, and the state by William “Billy” Cole, deputy solicitor general.
In re Google is case number 15-24-87-CV.Janet Elliott contributed to this report.