In this edition of Litigation Roundup, a divided panel of the Fifth Circuit sides with Susman Godfrey and undoes the dismissal of a qui tam False Claims Act suit against Lockheed Martin, and a former financial advisor is convicted of defrauding three NBA players, including two who played for Dallas and Houston.
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.
Collin County District Court
Disclosure of Trade Secrets Ends Case
Lawyers for hospitality technology company Enseo recently beat back a trade secrets lawsuit in an unusual fashion.
The lawsuit was filed Jan. 20 by WorldVue Connect Global, which is also a hospitality technology company. WorldVue was seeking an injunction that would stop Enseo from allegedly using its confidential trade secrets.
According to the court’s order entering judgment in favor of Enseo and denying the request for a temporary injunction, the case unraveled at a Feb. 17 injunction hearing.
“At the hearing, plaintiffs introduced into the public records of the court, without objection from defendants, a … Microsoft Excel spreadsheet that plaintiffs contend contains their confidential information or trade secrets,” the order reads. “Following the public submission of this document and testimony from plaintiff WorldVue … plaintiffs then moved to withdraw the document from the record in this case (again without objection),” Collin County District Judge John McClellan Marshall wrote.
“Following plaintiffs’ request to remove the document from the record, Defendants Enseo … made a motion to strike plaintiffs’ application for TI and pleadings depending from the withdrawn spreadsheet, on the ground that plaintiffs had offered no evidence to support the application or pleadings, and in fact withdrew the evidence necessary to sustain the same from the record.”
Judge Marshall took the motion under advisement and proceeded with the hearing, but days later he sided with Enseo, writing “the court finds that plaintiffs presented no evidence, or insufficient evidence, to show probable, imminent and irreparable harm absent an injunction.”
“Additionally, the court finds that the defendants publicly submitted into the record, then withdrew the evidence allegedly containing their confidential information or trade secrets,” he wrote.
Judge Marshall issued the order Feb. 25, noting that WorldVue was not seeking any monetary damages. WorldVue filed its notice of appeal with the Fifth Court of Appeals in Dallas the following day. No briefs have been filed in the case as of Monday afternoon.
Enseo’s counterclaims against WorldVue remain pending.
WorldVue Connect is represented by Carolyn R. Raines, Michael A. McCabe and Nicole A. Paige of Munck Wilson Mandala.
Enseo is represented by Travis E. DeArman, Avery Williams, Rachael Jones, Tyler B. Freeman and Jacques Friedman of McKool Smith. Individual defendant David Dingee is represented by Steven N. Williams, William P. Finegan and Anne-Alise “Ali” Hinckley of Munsch Hardt Kopf & Harr.
The case number is 429-00347-2026. The case number on appeal is 05-26-00296-CV.
Oregon Circuit Court, Multnomah County
Susman Godfrey Gets $305M Win in Wildfire Lawsuit
A Houston partner with Susman Godfrey was among those on the trial team that secured a $305 million jury verdict for 16 survivors of a wildfire in Oregon.
The damages award that was handed down in late February against PacifiCorp is tied to its liability for the 2020 Labor Day fires in Oregon that left 11 dead and burned more than a million acres. In December, a Susman Godfrey trial team secured a $62 million verdict against PacifiCorp on behalf of 10 wildfire survivors.
For the 16 plaintiffs in the recent trial, each adult was awarded $18.5 million and each minor was awarded $5 million, and the final judgment applies a 25 percent punitive multiplier to the damage award. In 2023 the court found PacifiCorp acted with gross negligence in connection with the wildfire.
Judge Steffan Alexander presided over the case that was filed by lead plaintiff Stacey Nordmo in August.
PacifiCorp is represented by Alexander J. Bish, Brad S. Daniels, Melissa Healy and Aviva Diamond of Stoel Rives.
The plaintiffs are represented by Shawn Rabin, Bill Carmody, Michael Kelso, Dustin Fire and Henry Walter of Susman Godfrey and Edelson PC, Keller Rohrback and Stoll Berne.
The case number is 25CV46772.
Southern District of New York
Jury Convicts Man Who Conned Former Rockets, Mavericks Stars
Last week a federal jury in Manhattan convicted a former financial advisor of defrauding former NBA players Chandler Parsons and Courtney Lee and current NBA player Jrue Holiday out of more than $5 million.
Parsons and Lee each played for the Houston Rockets and the Dallas Mavericks during their basketball careers.
Jurors heard five weeks of testimony before convicting Darryl Cohen, 52, of wire fraud, punishable by up to 20 years in prison, and one count of investment adviser fraud, punishable by up to five years in prison.
“Financial advisor Darryl Cohen built trust with successful pro athletes — then betrayed it, stealing their money to fund personal luxuries, including a state-of-the-art gym in his own backyard,” U.S. Attorney Jay Clayton said in a statement.
Prosecutors alleged that from 2017 through 2020 Cohen and accountant Brian Gilder convinced the players to purchase viatical life insurance policies at “massive markups” of 222 percent, 310 percent and 244 percent. Gilder used a law firm he controlled to purchase the policies and sell them to the athletes, profiting about $4.5 million. According to court documents, Cohen used the proceeds to renovate his swimming pool, build a home gym, pay off credit card debt and sent about $200,000 to a romantic partner.
Additionally, prosecutors allege Cohen used about $328,000 of Parson’s money to repay a disgruntled client, former MLB player Nyjer Morgan.
Prosecutors filed a sealed indictment against Cohen and Gilder in March 2023. Gilder pleaded guilty in March 2024 to one count of conspiracy to commit wire fraud and was sentenced to time served. He was also ordered to forfeit about $3.9 million to the government.
U.S. District Judge Vernon S. Broderick presided over the case that ended March 4 with the jury’s verdict.
Cohen is represented by Daniel McGuinness of New York and a team of lawyers from Bloch & White.
The federal government is represented by Brandon Thompson, Kevin Mead and William C. Kinder of the Department of Justice.
The case number is 1:23-cr-00134.
Texas Supreme Court
Justices Hear SpaceX Beach Closure Arguments
On Thursday, the Texas Supreme Court heard oral arguments in three consolidated appeals that ask the court to determine whether a group of citizens can bring a constitutional challenge to a statute that authorizes the closure of public beaches during SpaceX launches.
SaveRGV, the Sierra Club and the Carrizo/Comecrudo Nation of Texas have argued that the statute, passed in 2013, violates the 1959 Open Beaches Act and the state constitution, which was amended in 2009 to guarantee public beach access.
The challenged statute, HB2623, allows the General Land Office to temporarily close a public beach for certain reasons, including “space flight activities.”
“Cameron County has been, regularly, closing Boca Chica Beach and its only access road, State Highway 4, to allow SpaceX to conduct space flight activities near the beach,” the plaintiffs told the court in briefing. “Boca Chica Beach falls within OBA’s definition of a public beach … and within the definition of ‘public beach’ found in Article I, Section 33 of the Texas Constitution.”
The state has maintained that immunity bars the lawsuit challenging the statute and has asked the court to toss the lawsuits.
“Their claims are premised on the remarkable notion that under Article I, Section 33 of the Texas Constitution, any infringement of the public’s access to public beaches — to any extent and for any length of time — is unlawful,” Texas has argued in briefing. “That reading of Section 33 is both facially invalid and untenable.”
SaveRGV, the Sierra Club and Carrizo/Comecrudo Nation of Texas are represented by Marisa Perales of Perales, Allmon & Ice.
Texas is represented by assistant solicitor general Rance Craft. The Texas General Land Office is represented by Jaime A. Saenz of Colvin, Saenz, Rodriguez & Kennamer. Cameron County is represented by James P. Allison of Allison, Bass & Magee.
The case numbers are 24-0237; 24-0407 and 24-0457.
U.S. Court of Appeals for the FIfth Circuit
Attorney Fees for Defendant in ‘Frivolous’ Qui Tam Lawsuit Stand
Without hearing oral argument, a panel of judges determined Friday that an award of $479,656 in attorney fees to the prevailing party that beat back a “frivolous” qui tam lawsuit was appropriate.
The 11-page opinion was issued in a lawsuit Christopher Frey brought against his former employer, Health Management Systems Inc., and two other defendants — Cotiviti and CGI Federal. Frey appealed U.S. District Judge Keith P. Ellison’s decision in April 2025.
According to the opinion, Frey worked for HMS from 2006 until 2013 when he was terminated as part of a reduction in force, and then he filed “a series of lawsuits” against the company, including two other qui tam actions.
“Frey has lost every lawsuit that he has brought against HMS. Unfazed by his lack of success in his litigation campaign against HMS, Frey pressed ahead and filed this FCA action while his other two lawsuits were pending in the Northern District of Texas,” the panel wrote.
In this suit, Frey alleged HMS and the other defendants were violating the False Claims Act by refusing to return certain contingency fees to the Centers for Medicare and Medicaid Services under a 2014 settlement agreement.
Judge Ellison agreed with a magistrate judge that the lawsuit was “clearly frivolous.”
“The district court was correct: this issue ‘is not a close call,’” the panel wrote. “Instead of specifically alleging how each defendant committed fraud, Frey ‘lump[ed] all defendants together’ in his pleadings. That is undisputed on appeal. He also failed to ‘provide even a representative example of an individual involved in the fraudulent scheme.’ That, too, is undisputed. Rather, he averred ‘wholly generalized allegations’ devoid of specificity.”
Judges Edith Brown Clement, Dana M. Douglas and Irma Carrillo Ramirez sat on the panel.
Frey is represented by Thomas Harris Jr. of Harris Law Firm.
HMS is represented by Allyson Ho and Stephen J. Hammer of Gibson, Dunn & Crutcher, Lorinda Holloway of Brown McCarroll and Jody Rudman of Husch Blackwell.
Cotiviti is represented by Jill Hale of Foley & Lardner.
CGI Federal is represented by Mark B. Sweet and Scott McCaleb of Wiley Rein.
The case number is 25-20146.
Divided Panel Revives Qui Tam Suit Against Lockheed Martin
The former director of internal audit for Lockheed Martin will get a second chance to bring her qui tam lawsuit alleging the contractor violated the False Claims Act after a divided three-judge panel Monday agreed the case was wrongly dismissed by Chief U.S. District Judge Reed O’Connor under the first-to-file bar.
Chief Judge O’Connor found that the lawsuit brought by Maria Del Carmen Gamboa Fergeson “contains the same essential elements” as a lawsuit that was first filed by a different relator, referred to in the opinion as Girard. Ferguson appealed in August 2024, arguing Girard’s complaint alleges a “bulk-discount scheme” whereby Lockheed Martin was allegedly buying parts in bulk and selling them to the government at a marked-up price.
But Ferguson told the court in briefing her lawsuit is different because she alleges the defense contractor “regularly acquiesced in its subcontractors’ use of inflated cost or pricing data and passed on that inflated pricing to the U.S. Government.”
Judge James E. Graves Jr. authored the majority opinion, joined by U.S. District Judge Fernando Rodriguez Jr., who was sitting by assignment.
“In sum, this case is more analogous to the cases where a second relator files a complaint that alleges a violation of the same statute but alleges a different scheme or method of perpetrating the fraud,” he wrote. “Ferguson does not merely add details or different locations where the fraud was perpetrated, but alleges a different mechanism. Thus, the first-to-file bar does not apply.”
Judge Edith H. Jones authored a dissenting opinion explaining she would have upheld the dismissal.
“My colleagues view these complaints through the wrong end of the telescope; they focus on details rather than on the larger commonality between the cases,” she wrote. “When seen in the proper perspective, it is clear that Ferguson’s allegations of subcontractor miscertifications in connection with multiple F-35 LRIP contracts overlap Girard’s claim in their material elements and essential facts.”
According to court documents, the qui tam lawsuit brought by Patrick Girard against Lockheed Martin was dismissed in February 2025 pursuant to a settlement agreement.
Ferguson is represented by Steven Shepard, Stephen Shackleford and Taylor H. Wilson Jr. of Susman Godfrey, James Young of Wynne, Smith & Young, Elvin E. Smith III of Siebman Law, Roger Sanders of Sanders, Motley, Young & Gallardo and Samuel L. Boyd and Catherine Jobe of Boyd & Associates.
Lockheed Martin is represented by Michael Bronson, Patrick M. Hagan and Joseph W. Harper of Dinsmore & Shohl and Anthony Campiti and Emily Vest of Holland & Knight.
The case number is 24-10713.
U.S. Supreme Court
Baruch Files Amicus on Behalf of Dozens of Rappers in Death Penalty Appeal
Chad Baruch of Johnston Tobey Baruch filed an amicus brief Monday with the U.S. Supreme Court in an appeal of a Dallas death penalty case, representing 30 rappers, scholars and arts organizations.
James Broadnax, who is Black, was 19 years old when a predominantly white jury convicted him in 2009 of murdering two white men with a .380 handgun in Dallas, according to court briefing. In his petition to the high court, Broadnax argues his trial was “infected by at least two independent constitutional violations that are fatal to the state’s case.”
“At Mr. Broadnax’s capital sentencing, the state introduced over 40 pages of his handwritten rap lyrics, characterized them as ‘gangster rap,’ and argued to the jury that the lyrics constituted a ‘self-admission’ of Mr. Broadnax’s criminal ‘mentality,’” Broadnax’s brief reads. “These arguments exploited racial stereotypes commonly associated with rap lyrics and the Black community to transform Mr. Broadnax’s artistic expression into a death warrant, and, even more troublingly, fit into a broader pattern of racially charged prosecutorial practices and arguments throughout Mr. Broadnax’s trial.”
Baruch made national headlines in 2015 when he filed what has become known as the “Hip Hop Brief,” representing several rappers in support of a Mississippi high school student who was disciplined for posting a rap song online.
Among the artists he’s representing in the brief filed Monday are T.I., Fat Joe, N.O.R.E., Young Thug and Killer Mike. Baruch writes in the brief that the state presented “a racially charged case filled with stereotypes and anti-Black rhetoric” in the trial of Broadnax.
“The state urged the jury to consider the lyrics as literal rather than metaphoric expressions and to interpret them as self-admissions of Broadnax’s intent to commit future violent crimes,” the brief argues.
“Broadnax’s lyrics made the prejudicial impression intended by the state. During their one-day deliberations, the jury asked to review the lyrics twice — including just hours before sentencing Broadnax to die.”
Also on Monday, Houston rapper Travis Scott, whose real name is Jacques Bermon Webster II, filed a separate amicus brief in the case. He is represented by Alex Spiro, Ellyde R. Thompson, Rebecca Arno, Chelsea Sincox and Grace Sullivan of Quinn Emanuel Urquhart & Sullivan.
Broadnax’s scheduled execution date is April 30.
Broadnax is represented by Steven Herzog, Pietro J. Signoracci, Eva Gao, Julie J. Chandler and David O. Ceasar of Paul, Weiss, Rifkind, Wharton & Garrison.
The case number is 25-939.
Six Former Texas Judges Sign on to Amicus Brief
In an appeal involving the Trump administration’s decision to end temporary protected status for Syrian nationals, a group of 175 former judges filed an amicus brief Thursday urging the court to reject the federal government’s request for relief.
The federal government is asking the high court to stay a district court order that halted the decision to end temporary protected status for Syrians and grant it certiorari before judgment.
The six retired judges in Texas who signed the brief are Royal Furgeson Jr., Barbara M.G. Lynn, Brian Owsley, T. John Ward and Lee Yeakel, who were federal judges, and Dori Contreras, who served on the Thirteenth Court of Appeals in Corpus Christi.
They told the high court that the government’s requests “rest in significant part on a fundamental misreading of two prior orders from this Court, which stayed, on an emergency basis and without substantive explanation, orders from a different court in a different case challenging a different termination.”
“Amici submit this brief in their personal capacities to urge the Court to reject the government’s overreading of these prior stay orders, which is not supported by the orders themselves or by this Court’s interim docket jurisprudence,” the brief reads.
The judges go on to detail many of the Trump administration’s attacks on the judiciary and warned that “criticism can cross the line to intimidation and delegitimization of the courts.”
“It is imperative that this Court safeguard the judiciary’s independence and the rule of law in the face of these attacks,” the brief reads.
The judges are represented by Jed W. Glickstein, Howard Kaplan and Sarah Grady of Kaplan & Grady and Norman L. Eisen, Stephen A. Jonas and Diamond J. Brown of Democracy Defenders Fund.
The case number is 25A952.
Beck Redden Defends Win in Baby Food Lawsuit
The U.S. Supreme Court last month unanimously agreed that the U.S. Court of Appeals for the Fifth Circuit got it right when it determined federal courts had no jurisdiction over a lawsuit brought by parents against the manufacturer and the seller of baby food they allege gave their young son heavy metal poisoning.
The ruling is a win for parents Sarah and Grant Palmquist in their litigation against Whole Foods and Hain Celestial Group. The Palmquists, Texas residents, filed suit in state court against Whole Foods, a Texas company, and Hain Celestial, a Delaware company headquartered in New York. Hain removed the case to federal court and U.S. District Judge Jeffrey Brown dismissed Whole Foods, finding it had been improperly joined. Judge Brown later granted judgment as a matter of law in favor of Hain.
In May 2024 a Fifth Circuit panel reversed the improper-joinder decision and determined that the jurisdictional defect required vacatur of the final judgment in Hain’s favor.
The case presented the high court an opportunity to resolve a circuit split on the issue of whether vacatur is required in these circumstances.
“In Hain’s view, the correctness of the district court’s dismissal is irrelevant because … the parties were completely diverse by the time of final judgment. Hain is mistaken,” Justice Sonia Sotomayor wrote for the court. “This Court has never held that a district court can create jurisdiction through its own mistakes. A rule to the contrary would permit courts to enlarge their jurisdiction beyond the limits Congress imposed.”
The Palmquists filed suit against Hain Celestial Group and Whole Foods Market in Texas state court in 2021, alleging the Hain’s Earth’s Best organic baby food they fed their son caused him to suffer a “rapid” regression in his social, language and behavioral skills.
The suit came in the wake of a House Oversight and Reform Committee report showing Hain’s baby food contained elevated levels of heavy metals.
“The rare privilege of handling this important appeal in the U.S. Supreme Court has been the highlight of my career, and I am immensely grateful to everyone who made it possible,” lead lawyer for the Palmquists, Russell S. Post of Beck Redden, wrote in a LinkedIn post. “The experience was powerful, humbling, and very rewarding; it has reminded me of all the reasons I am proud of our profession.”
Hain is represented by Sarah E. Harrington, Paul W. Schmidt, Michael X. Imbroscio, Phyllis A. Jones, Abby C. Wright, Nicole M. Antoine and Matthew C. Quallen of Covington & Burling.
Whole Foods is represented by Kristine L. Roberts, Brian M. Ballay and Alexandra B. Rychlak of Baker, Donelson, Bearman, Caldwell & Berkowitz.
The Palmquists are represented by Owen J. McGovern of Beck Redden and David C. Frederick and Dennis D. Howe of Kellogg, Hansen, Todd, Figel & Frederick.
The case number is 24-724.
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.
In the latest salvo in the saga of President Donald Trump’s executive orders targeting law firms, the Department of Justice argued in briefs filed Friday that the president has the constitutional authority to issue executive orders against Houston-based Susman Godfrey and three other corporate law firms because those firms “have taken actions that threaten public safety and national security, limit constitutional freedoms, degrade the quality of American elections, and undermine bedrock American principles.” On March 2, the DOJ filed documents telling the court it would no longer seek to enforce the orders. Less than 15 hours later, the federal government did an aboutface.
Lauren Valkenaar announced last week that Michael O’Donnell has joined her firm as a name partner to form Valkenaar O’Donnell PLLC. O’Donnell is the former partner-in-charge of Norton Rose Fulbright’s San Antonio office.
The Senate Judiciary Committee approved an Austin litigator and a Fort Worth judge for the federal bench Thursday morning. Tarrant County Judge Christopher Wolfe will be serving in the Waco Division, and Andrew Davis will be in Austin.
At Southern Methodist University, Judge Bill Whitehill heard arguments Friday afternoon on the Dallas Stars’ summary judgment motion. The lawsuit was filed in October 2024 by the Dallas Mavericks, claiming the hockey franchise was in violation of its agreement over its shared lease of the American Airlines Center.
Atlanta-based Cumulus Media Inc. and 40 of its affiliated companies filed for Chapter 11 bankruptcy protection Wednesday in the Southern District of Texas. Paul Weiss and Porter Hedges have been hired as the lead legal advisors.
Scott F. Mascianica, a government enforcement and investigations partner, has joined Bradley in Dallas from Hilgers PLLC. He will focus on government enforcement proceedings, internal investigations and related litigation involving securities, regulatory and white-collar matters.
A former Gibson, Dunn & Crutcher associate has been named general counsel of the Houston Livestock Show and Rodeo. Native Houstonian Chris Atmar has joined the senior management team and will steer legal affairs, risk management, and corporate governance for the Rodeo.