In this edition of Litigation Roundup, Baker Botts is hired by Tesla to defend against patent infringement claims in the Eastern District of Texas, jury selection is underway in an airline crash fatality suit that a Dallas law firm is taking to trial in Washington State, and a recent appellate ruling from Eastland could have a broad impact in personal injury cases.
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
Travel Websites Settle Texas DTPA Suit for $9.5M
The company that operates travel websites Booking.com, Priceline.com and Kayak.com has agreed to pay $9.5 million to settle allegations brought by the state of Texas that it was deceptively marketing the prices of hotel rooms by omitting mandatory fees from the total.
According to court records, Texas filed its suit against Agoda Company, Booking Holdings, Kayak and Priceline.com in August 2023. The suit was closed after an agreed judgment was reached in July, according to the docket.
Texas Attorney General Ken Paxton announced the deal in a news release last week, calling the settlement the largest amount a state had recovered related to “junk fee” pricing in litigation against hotels or travel agencies. The release also highlighted previous agreements his office reached with Marriott, Omni, Choice Hotels and Hilton related to pricing transparency.
The case was assigned to Bexar County District Judge Norma Gonzales.
The defendants are represented by Sylvia A. Cardona of Rosenthal Pauerstein Sandoloski Agather.
Texas is represented by John C. Hernandez of the Texas attorney general’s office.
The case number is 2023CI16493.
Superior Court, King County, Washington
Jury Selection Underway in Alaska Airlines Fatality Case
Dallas law firm Miller Weisbrod Olesky is representing a widow whose husband was killed in an October 2019 airplane crash in Dutch Harbor, Alaska.
Jury selection started last week and continued Monday in the lawsuit Erin Oltman brought against Alaska Airlines over the death of her husband, David Oltman. Oltman, a resident of Washington, had purchased a ticket through Alaska Airlines for a flight from Wenatchee, Washington, to Dutch Harbor, Alaska.
It was on the third leg of the trip — from Anchorage to Dutch Harbor on an airplane operated by PenAir — that the fatal incident occurred. According to court documents, the runway at Dutch Harbor is 4,500 feet long and is bordered by water, with rocks on each end of the runway.
Despite windy weather conditions that favored a different approach, the lawsuit alleges the pilots attempted to land the plane but ran past the end of the runway, crossed a street and crashed into ballast rocks at the edge of the harbor.
“The aircraft’s left propeller struck one of the ballast rock,” the lawsuit alleges, and a piece sheared off, “sending pieces and shrapnel into the fuselage.”
Some of that shrapnel pierced the fuselage and entered the passenger cabin. Oltman was struck and “suffered massive injuries to his head and torso” that eventually caused his death.
Lawyers for Oltman told The Lawbook this is the first lawsuit over a plane crash fatality that has been tried to a jury in years. The lawsuit brings claims for negligence, wrongful death and survivorship claims and seeks unspecified damages for Erin and the two children she shared with David.
Trial is expected to last about a month.
The Oltmans are represented by Clay Miller, Josh Birmingham and Lawrence R. Lassiter of Miller Weisbrod Olesky and Matthew R. Johnson of Gravis Law.
Alaska Airlines is represented by John Fetters, Caryn Jorgensen and Rachael R. Wallace of Stokes Lawrence.
The case number is 20-2-14060-1.
Eastern District of Texas
Tesla Hires Baker Botts to Defend Against Patent Suit
A Baker Botts partner who chairs the firm’s intellectual property practice in Austin will be defending Tesla from claims it has infringed patents covering autonomous vehicle technology.
Roger Fulghum filed notice Aug. 14 he was representing Tesla in the lawsuit brought by Perceptive Automata.
Perceptive filed suit in July, alleging Tesla had infringed five of its patents related to self-driving technology. Specifically, the suit alleges the patents do not cover autonomous driving directly, “but rather, are directed to concrete solutions for problems faced by autonomous vehicles, such as how to predict the variable behavior and decision-making of humans.”
“Training autonomous vehicle systems with a better understanding of such issues improves the self-driving capabilities of vehicles and increases safety for drivers, pedestrians and other vehicles,” the suit alleges.
The case has been assigned to U.S. District Judge Rodney Gilstrap, who has scheduled a case management conference to take place Sept. 30.
Perceptive is represented by John Murphy, Jonathan Rastegar, Taryn Trusty, Timothy E. Grochocinski and Patrick Conroy of Nelson Bumgardner Conroy and Andrea L. Fair of Miller Fair Henry.
Tesla is also represented by its own Ashraf Fawzy and Paul Margulies.
The case number is 2:25-cv-00742.
Western District of Texas
Judge Biery Enjoins Ten Commandments Law
Texas Attorney General Ken Paxton issued a news release Monday morning instructing schools across Texas to go ahead and display a copy of the Ten Commandments, in accordance with a new law, unless they are one of the nine districts affected by an injunction a federal judge issued five days ago.
U.S. District Judge Fred Biery had sided with those challenging SB 10, issuing a ruling enjoining the law from taking effect Sept. 1 and denying Texas’ motion to dismiss the suit.
“Ultimately, in matters of conscience, faith, beliefs and the soul, most people … just want to be left alone, neither proselytized nor ostracized, including what occurs to their children in government run schools,” he wrote in the 55-page ruling.
Judge Biery noted the U.S. Supreme Court in 1980 determined that the posting of the Ten Commandments at a public school was an unconstitutional violation of the establishment clause because it “had no secular legislative purpose.”
“For those who disagree with the court’s decision and who would do so with threats, vulgarities and violence, grace and peace unto you. May humankind of all faiths, beliefs and non-beliefs be reconciled one to another.”
The plaintiffs filed a 65-page lawsuit July 2 arguing the new law “simply cannot be reconciled with the fundamental religious-freedom principles that animated the founding of our nation.”
The school districts affected by the injunction are Alamo Heights, North East, Cypress Fairbanks, Lackland, Lake Travis, Fort Bend, Dripping Springs, Plano and Northside. In the news release instructing all other districts in the state to obey SB 10, Paxton said the Ten Commandments are “irrevocably intertwined with America’s legal, moral and historical heritage.”
“The woke radicals seeking to erase our nation’s history will be defeated,” he said in the release. “I will not back down from defending the virtues and values that built this country.”
Judge Biery issued the preliminary injunction Aug. 20, and attorneys for the school districts filed notice of appeal the following day.
Jon Youngwood of Simpson Thacher & Bartlett, who represents the challengers, issued a statement calling Judge Biery’s ruling a “well-reasoned decision that underscores a foundational principle of our nation: the government cannot impose religious doctrine.”
“This ruling is critical to protecting the First Amendment rights of students and families to make their own determinations as to whether and how they engage with religion.”
The plaintiffs are represented pro bono by Jon Youngwood, Janet A. Gochman, Noah Gimbel, Jordan T. Krieger, Avia Gridi and Kristen Crow of Simpson Thacher & Bartlett, and by numerous lawyers with the American Civil Liberties Union of Texas Foundation, the ACLU Foundation, Americans United for Separation of Church and State and the Freedom From Religion Foundation.
The schools are represented by Daniel Ortner and William Farrell of the Texas attorney general’s office.
The case number is 5:25-cv-00756.
Eleventh Court of Appeals, Eastland
New Hearing Ordered, Medical Coverage Discovery Reopened in Personal Injury Case
A three-justice panel on Thursday issued a ruling instructing Midland County District Judge Leah G. Robertson to conduct a new hearing and reopen discovery in a personal injury lawsuit against MBC Energy Services where the company is seeking certain information related to the cost of medical care provided to the plaintiff.
In the lawsuit, Daniel Sunde is suing the company seeking damages for injuries he suffered in an April 2023 motor vehicle crash he alleges was caused by an MBC employee. After Judge Robertson rejected MBC’s motion to compel depositions of certain witnesses the company alleged had knowledge of the cost of care and funding arrangement, it sought relief in the appellate court in March.
MBC framed the question on appeal as follows:
Did the trial court clearly abuse its discretion in denying discovery concerning the amounts the treaters were paid by the funders for the medical services they provided to [Daniel] Sunde and the relationship between the treaters, the funders, and Sunde’s lawyers, which is relevant to the reasonableness of medical expenses and the treaters’ bias?
“In a global order, the trial court denied relators’ motion to compel without addressing the specific complaints raised in the motion,” the appellate court wrote. “Because we conclude that the trial court abused its discretion by denying relators’ motion to compel, we conditionally grant mandamus relief.”
The panel instructed the trial court to hold a new hearing “and consider and rule on the objections to written discovery on a request-by-request and objection-by-objection basis.”
“Additionally, the trial court should reconsider relators’ requests to depose the treaters and funders, particularly in its reconsideration of Sunde’s objections to the written discovery,” the opinion reads. “As such, the trial court should discourage gamesmanship by any and reopen discovery in this case to address the above.”
A similar discovery dispute involving the same two law firms litigating this dispute recently arose in multidistrict litigation against Transocean, where 23 workers allege they were injured during Hurricane Zeta in October 2020 while aboard the Deepwater Asgard drilling rig in the Gulf of Mexico.
Chief Justice John M. Bailey and Justices W. Stacy Trotter and Bruce Williams sat on the panel.
MBC Energy is represented by Kelsi S. White, Daryl L. Moore, Todd W. Mensing and Rey Flores of Ahmad, Zavitsanos & Mensing.
Sunde is represented by Claire Schindler, Christopher B. Adkins, Kurt B. Arnold and Roland Christensen of Arnold & Itkin.
The case number is 11-25-00052-CV.
U.S. Court of Appeals for the Fifth Circuit
‘Highly Counterintuitive and Absurd’ $10M PPP Loan Forgiveness Argument Rejected
An argument advanced by a trucking dealership that contended it was entitled to forgiveness of a $10 million loan it wasn’t entitled to receive, was rejected by a panel of Fifth Circuit judges earlier this month.
Judge James Ho called the argument “highly counterintuitive and absurd” in the six-page opinion issued Aug. 6.
Bruckner Truck Sales conceded it was ineligible for the $10 million guaranteed Paycheck Protection Program loan it received from the Small Business Administration but argued that it was entitled to forgiveness under the CARES Act because “guaranteed” under that section of the law means the loan was made “pursuant to” the statute and not “in accordance with” the statute.
Bruckner also argued the forgiveness denial was improperly based on the SBA’s reliance on an interim final rule that was “unconstitutionally retroactive” and that the district court had wrongly relied on the SBA’s interpretation of the CARES Act in siding with the government, in violation of Loper Bright.
“It would be bizarre for Congress to decide to forgive a loan that the borrower wasn’t even eligible to receive to begin with, in the random happenstance that the relevant authorities didn’t discover the ineligibility until after the funds were released,” Judge Ho wrote. “It’s hard to imagine any reasonable policymaker designing a loan forgiveness scheme that confers massive payouts to certain ineligible borrowers, just because the regulator happened to be asleep at the switch.”
The opinion affirmed U.S. District Judge Matthew Kacsmaryk’s December 2023 ruling dismissing the case on summary judgment.
“Congress did not authorize the random distribution of precious taxpayer dollars to ineligible borrowers based on the arbitrary happenstance of bureaucratic error,” Judge Ho wrote. “We agree with the district court that the CARES Act does not forgive PPP loans issued to borrowers who are ineligible to receive them.”
Judges Carolyn Dineen King and Irma Carrillo Ramirez also sat on the panel.
Bruckner is represented by Kyle Hawkins, the former solicitor general for Texas, and by William Thompson, both of Lehotsky Keller Cohn. Thompson, the former acting chief of the special litigation unit at the Texas attorney general’s office, argued the case before the panel Feb. 26. The company is also represented by John Massouh of Sprouse Shrader Smith in Amarillo.
The SBA is represented by Cynthia Barmore, Steven H. Hazel, Michael S. Raab and Brian Stoltz of the Department of Justice.
The case number is 24-10377.
Craving more Texas Lawbook litigation coverage? Don’t worry, we’ve got you covered. Take a look at these stories you may have missed in the past few days.
Susman Godfrey is preparing to defend its win striking down President Donald Trump’s executive order that targeted the firm after the U.S. Department of Justice recently notified U.S. District Judge Loren AliKhan it intends to appeal the ruling. President Trump issued an executive order on April 9 condemning Susman Godfrey for alleged racial discrimination in its hiring practices and for “spearheading efforts to weaponize the American legal system and degrading the quality of American elections.”
The Northern District of Texas has a new chief judge. U.S. District Judge Reed O’Connor assumed the role a week ago, succeeding U.S. District Judge David Godbey, who had held the position for about three years but announced he intends to take senior status next month.
Denver-based medical transportation company ModivCare Inc. hired Latham & Watkins and Hunton Andrews Kurth to advise it in Chapter 11 bankruptcy proceedings. The company filed in the Southern District of Texas, telling the court the restructuring is “intended to strengthen its financial foundation while continuing to provide access to care, reduce costs and improve outcomes for clients and members nationwide.”
After four years with Arnold & Itkin, appellate lawyer Andrew Gould announced Monday he has joined Hicks Johnson in Houston and will lead its appellate practice. Gould has also served as a prosecutor in the U.S. Attorney’s Office for the Southern District of Texas and as an associate at Gibson, Dunn & Crutcher.
Morrison Foerster and Norton Rose Fulbright will represent lithium ion battery recycler Aleon Metals and two subsidiaries in Chapter 11 restructuring proceedings in the Southern District of Texas. Citing $100 million to $500 million in liabilities, the Freeport-based company said in its first-day filing that it has secured $188 million in debtor-in-possession financing and has entered into an agreement to sell the company in a “free-and-clear” transaction.
Last week, three federal district courts in Texas saw their judgments affirmed by the U.S. Court of Appeals for the Fifth Circuit when a panel determined the district courts did not abuse their discretion in granting preliminary injunctions for SpaceX, Energy Transfer and Findhelp halting administrative proceedings before the National Labor Relations Board while they pursue constitutional challenges to the agency’s structure.