In this edition of Litigation Roundup, a Dallas lawyer secures an important ruling in a case involving NCAA eligibility for an Indiana University football player from Mesquite, and the brother of the Houston Texans principal owner hires Tony Buzbee to bring a $100 million tortious interference lawsuit against the National Football League. There is also coverage of non-football-related 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.
Dallas County District Court
Dallas Court Rules NCAA Eligibility Rule Violates Texas Antitrust Act
A challenge to the National Collegiate Athletic Association’s five-year eligibility rule was upheld last week by Dallas County Judge Dale Tillery, allowing Indiana University’s starting safety Louis Moore to continue playing for the undefeated Hoosiers.
Moore, 24, filed the lawsuit in August, arguing his three years at Navarro Junior College in Texas should not count against his eligibility. Judge Tillery ruled that the NCAA’s eligibility rule violated the Texas Antitrust Act and granted a temporary injunction.
“This Court further finds that there is sufficient evidence that Moore will be harmed irreparably if he is not declared eligible to play for the 2025-2026 season, which would therefore deprive Moore of the opportunity to play Division 1 college football, be at risk of losing the … related scholarship and academic benefits as well as the NIL deal Moore has now signed,” Judge Tillery wrote in the injunction order.
Moore graduated from Poteet High School in Mesquite and attended Navarro from 2019 to 2022, where he played football. He transferred to IU and played in 2022 and 2023. Moore then transferred to the University of Mississippi for his third season and is now back at IU.
Moore’s attorney Brian Luten noted that Vanderbilt University quarterback Diego Pavia is in the same situation as Moore and has been allowed to play. Pavia has been playing under a preliminary injunction. The NCAA appealed the injunction to the Sixth Circuit Court of Appeals, where it remains pending. The court heard oral arguments two weeks ago.
“I don’t know how many more cases the NCAA has to lose before it adopts a uniform policy that’s fair to everyone,” Lauten said.
He added that there are many athletes who have been barred from playing because they spent time at a junior college.
“There are hundreds of student athletes that fit that profile, and they’re wrongfully being discriminated against,” Lauten said. “The ones that have had the courage to come forward with lawyers have proven that, and the NCAA needs to fix it at this point.”
Nashville-based Holland & Knight partner Taylor Askew is representing the NCAA. He did not immediately respond to requests for comment.
The case number is DC-25-13153.
New York Supreme Court, New York County
Brother of Texans Owner Retains Buzbee, Sues NFL
Robert “Cary” McNair Jr., the brother of Cal McNair, who is the principal owner of the Houston Texans, is seeking more than $100 million in damages from the National Football League for its alleged role in a conspiracy to unseat him from the trust board that owns the team.
Cary McNair alleges the league also conspired to remove him from his position as CEO of McNair Interests, the billion-dollar investment arm of the McNair family. The motivation for carrying out the alleged conspiracy, according to the lawsuit, was to silence Cary McNair after his “repeated and incessant questions and critiques about the multiple scandals involving the Houston Texans football team.”
Tony Buzbee is the lead lawyer representing Cary McNair and issued a statement announcing the lawsuit Friday.
“We allege that Cary McNair had the courage to voice his concerns about important management issues regarding serious, high-profile scandals involving the Houston Texans,” he said. “We believe the evidence will be clear and overwhelming that the NFL intervened in the McNair family business to remove Cary McNair from his position as CEO, in an effort to silence Cary McNair. He won’t be silenced.”
Counsel for the NFL had not filed an appearance as of Monday. The docket also did not reflect which judge the case has been assigned to.
Separately, but relatedly, there is other litigation between Cary McNair and McNair Interests in Harris County. A proceeding in probate court accuses Cary McNair of unlawfully inking employment agreements with former executives of McNair Interests days before he was removed as manager of the company that purportedly triggered the payment of millions in severance.
In response to that lawsuit, Cary McNair filed a civil lawsuit against McNair Interests alleging it was wrongly refusing the foot the bill for his defense costs.
Following the death of the family’s patriarch and former owner of the Texans, Robert McNair Sr., in 2018, fighting between members of the family over ownership of the team ensued.
In November 2023, Cary McNair filed a suit in Harris County Probate Court seeking to have his mother declared incapacitated.
Kirkland & Ellis partners Anna G. Rotman, Nick Brown and Will Atnipp had represented Cary McNair in those cases until Sept. 19, when the lawyers filed an unopposed motion to withdraw from the case, explaining Daryl L. Moore and Kelsi S. White from Ahmad, Zavitsanos & Mensing had been retained to proceed with the case.
“This withdrawal is not sought for delay, and no delay or prejudice will result from this withdrawal,” the motion reads. “Good cause exists for this withdrawal, namely, the attorney-client relationship between plaintiff and K&E in this matter has ended.”
A hearing on that motion took place Monday morning.
The case number is 655734/2025.
U.S. District Court, District of Columbia
American Airlines Sued by Widow in Crash with Army Helicopter
Fort Worth-based American Airlines has been sued by the widow of a man who died when the plane he was on crashed with a Blackhawk helicopter during final approach to Ronald Reagan Washington National Airport in January.
Rachel Crafton, whose husband Casey Crafton was on board American Eagle Flight 5342 and was among the 67 people killed in the crash, filed suit Sept. 24, naming American Airlines, PSA Airlines and the United States as defendants. The suit brings claims for wrongful death and negligence.
Crafton alleges the defendants should have been aware of the “substantial number of ‘near miss’ events in and around Washington, D.C.’s Reagan National Airport” and claims they “were required to exercise extreme vigilance when operating and/or controlling aircraft in the vicinity” of the airport.
“These defendants, however, utterly failed in their responsibility to the travelling public, specifically including the passengers on board AE 5342, in that, amongst other things, each aircraft flight crew failed to see and avoid the other; that the airline defendants failed to implement policies and procedures specifically designed to mitigate the risks associated with a mid-air collision; that the airline defendants manipulated and abused the arrival rate system at DCA to force in more of their arrivals per hour at the airport despite its knowledge that doing so severely limited the margins for safety,” the lawsuit states.
The case has been assigned to U.S. District Judge Ana C. Reyes. On Monday, she entered an order setting a status conference for Oct. 14.
“The Court understands that a number of plaintiffs may file suits in the coming days concerning the same events and same defendants,” she wrote, explaining the need for the pre-answer conference where case management and case consolidation will be discussed.
The lawsuit seeks unspecified damages in excess of $75,000.
The plaintiff is represented by Kevin P. Durkin, Tracy A. Brammeier and Robert A Clifford of Clifford Law Offices.
Counsel for the defendants had not filed an appearance as of Monday.
The case number is 1:25-cv-03382.
U.S. District Court, Maryland
USAA Settles Late Fee Class Action for $5M
San Antonio-based insurer United Services Automobile Association has reached a deal that will bring an end to a putative class action lawsuit that accused it of wrongly collecting late fees from more than 127,000 policyholders in Maryland.
Lead plaintiff Walter Black III filed suit in June 2021, alleging unjust enrichment and money had and received.
On Sept. 16 the plaintiffs filed an unopposed motion for preliminary approval of the class settlement, telling U.S. District Judge Lydia Kay Griggsby it was “fair, reasonable, adequate and in the best interests of the settlement class.”
“It provides substantial and immediate benefit to them in the form of a $5 million common fund,” the motion reads. “It is the product of vigorous litigation, which included motion practice, exchange and review of key documents, expert damages analyses, and arm’s-length negotiations between experienced counsel directed by a seasoned and respected Mediator, the Honorable Benson E. Legg (Ret.).”
According to the motion, the lawsuit was filed in the wake of a 2018 complaint filed by a USAA member with the Maryland Insurance Administration in an unrelated proceeding. That proceeding resulted in a finding that, between June 2011 and September 2019, USAA had improperly collected late fees.
In March 2020 the insurer refunded $7.35 million in fees to policyholders, including the plaintiffs in this case, “but did not return to their policyholders the gains, profits, interest and/or otherwise increased value of the wrongly assessed Late Fees and, instead, pocketed the increased value of the fees,” the motion reads.
The motion makes clear that USAA “vigorously” denies any wrongdoing as it relates to the collection of the fees at issue.
Black and the putative class of plaintiffs are represented by Jonathan P. Kagan and Meagan C. Borgerson of Kagan Stern Marinello & Beard, Keith T. Vernoni, Andrew W. Knox and Kathleen M. Vermillion of Timoney Knox, Andrea A. Gold and Gemma Seidita of Tycko & Zavareei, Jonathan Shub of Shub Johns & Holbrook and Karen M. Kohn of The Kohn Law Group.
USAA is represented by Adam T. Schramek, Matthew H. Kirtland and Nathan Damweber of Norton Rose Fulbright.
The case number is 8:21-cv-01581.
Texas Supreme Court
Ruling That Undid Attorney’s Sanction Appealed to SCOTX
If allowed to stand, a recent ruling from the Fifth Court of Appeals in Dallas threatens to “erode the inherent authority of trial courts to maintain order and the integrity of court records by effectively creating a procedural shield for attorney misconduct (even felonies under the Texas Penal Code),” the Texas Supreme Court was told earlier this month.
Al Dodds made that argument in a petition for review he lodged with the state’s high court Sept. 15. Dodds sued State Farm Mutual Insurance, alleging violations of the Texas Insurance Code, and Dallas attorney Armando De Diego was defense counsel for State Farm. Dodds filed a motion requesting sanctions of $1,700 in attorney fees, accusing De Diego of “knowingly, intentionally and purposefully” sending an untimely request for deposition on written questions two days after the close of discovery and refusing to withdraw it.
At a hearing on the motion, Dallas County Court-at-Law No. 3 Judge Sally Montgomery told De Diego, “I don’t care what your reason was. You didn’t do it right,” when he began to defend himself against the allegations by explaining opposing counsel had filed a notice of business records affidavits after the discovery period.
“But the proper way to do this is to request … leave of court, and you didn’t,” Judge Montgomery said, according to the opinion. “So that’s what the problem is. … I don’t care. You should have requested leave of court because you asked for it after the end of discovery. And I would have probably granted it. So that’s just how we follow the rules.”
The appellate panel in July determined there was nothing in the record that showed “bad faith” to support the sanctions order.
“The record contains no evidence of intent to engage in conduct for an impermissible reason, willful noncompliance, or willful ignorance of the facts,” the panel wrote in vacating the $1,087.50 sanctions order.
Judge Montgomery later awarded Dodds additional sanctions against De Diego totaling $7,500 after he missed the deadline to pay the $1,087.50 sanction. De Diego’s counsel had argued the deadline had “simply escaped his mind” and that he paid it three days after receiving a reminder from opposing counsel.
The panel found there was “no evidence of bad faith to support the order” and vacated it, too.
Judge Montgomery’s contempt order against De Diego did not fare better. De Diego had argued on appeal that the court held him in “constructive contempt” without affording him notice or a hearing, and the appellate panel agreed.
On the issue of contempt, during trial De Diego had made an offer of proof that included MRI images and a document, according to the opinion, and Judge Montgomery allowed the images into the offer of proof but not the document.
The contempt finding was based on plaintiff’s counsel’s assertion that after proceedings concluded for the day and when the judge was outside the courtroom, De Diego had placed a document into the envelope that contained the images.
“De Diego did not receive show-cause notice of the Nov. 17, 2022 proceeding in which the trial court held him in contempt, and the trial court refused to allow him to defend himself at that proceeding,” the panel wrote. “Additionally, the trial court did not provide De Diego a hearing at the Feb. 27, 2023 show-cause hearing because the trial judge refused to hear argument or evidence at that time concerning whether De Diego engaged in contemptuous conduct.”
Dodds argued in his appeal to the Texas Supreme Court that the sanctions order should not have been reversed and vacated.
“The opinion’s central holding — that an act of contempt cannot be ‘direct’ if the trial judge is not physically present — is in direct conflict with decades of established jurisprudence and in direct conflict with the Texas Court of Criminal Appeals’ Aldridge opinion from 1959.”
Dodds is represented by Carlos R. Cortez and Megna Wadhwani of Cortez Law Firm.
De Diego is represented by M. Micah Kessler of Nistico, Crouch & Kessler.
The case number is 05-23-00289-CV.
U.S. Supreme Court
Boeing Appeals Southwest Pilots Union Ruling to High Court
Three months after the justices of the Texas Supreme Court declined to hear an appeal from The Boeing Company in its fight with the Southwest Airlines Pilots Association, the aerospace company filed notice Sept. 22 it is appealing the case to the U.S. Supreme Court.
“The application for an extension of time within which to file a petition for writ of certiorari in the above-titled case has been presented to Justice Alito, who on Sept. 16, 2025, extended the time to and including Oct. 20, 2025,” the notice of appeal sent to the Texas Supreme Court reads.
In June, the Texas court unanimously determined that the Railway Labor Act does not preempt the claims brought by SWAPA, clearing the way for the union to sue the company for damages caused by its alleged misrepresentations about the airworthiness of the 737 MAX.
Boeing had argued that because deciding the case requires interpretation of the collective bargaining agreement between Southwest Airlines and its pilots, the claims were preempted. SWAPA argued, and the court agreed, that the RLA does not preempt its suit because the act only applies to claims between airline carriers and employees, and Boeing is neither.
But the justices diverged 7-2 on another key issue in the case relating to whether the pilots’ assignment of their individual claims to SWAPA, a 9,000-member labor union, was void as against public policy. The claims were assigned after Boeing argued that the union lacked “associational standing” to bring the claims.
A trial court agreed with Boeing and dismissed SWAPA’s claims with prejudice. SWAPA took the case to the Fifth Court of Appeals in Dallas, and that court determined that while SWAPA lacked associational standing, the claims should be dismissed without prejudice, allowing the union to bring the claims in another lawsuit.
In the Texas Supreme Court, SWAPA’s lead lawyer was David Coale of Lynn Pinker Hurst & Schwegmann and Boeing’s lead lawyer was Anne Johnson of Tillotson Johnson and Patton.
The case number is 25A298.
Alexa Shrake contributed to this report.
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