Lawyers for five Ukrainian citizens who were injured or killed in Russian drone and missile attacks that allegedly used semiconductors and other technology made by American tech companies, including Texas Instruments, failed to state a legal cause of action in their federal lawsuit seeking hundreds of millions of dollars in damages, a federal judge ruled Wednesday.
U.S. District Judge Sidney Fitzwater issued a 21-page decision that the Ukrainians’ claims are not preempted by federal law but that their case is dismissed because the lawsuit failed to show that the “defendant’s conduct is the cause in fact of a plaintiff’s injury” and that the defendant’s “act or omission was a substantial factor in bringing about the injuries, and without it, the harm would not have occurred.”
Judge Fitzwater, however, ruled that he is allowing the lawyers for the Ukrainians 28 days to refile their complaint to address his concerns about causation.
“The facts of this case are tragic. But tragic facts alone do not establish liability,” Judge Fitzwater wrote, citing a decision issued by the U.S. Court of Appeals for the Fifth Circuit only two days ago.
The five Ukrainian citizens and their families claim that TI, Intel, Mansfield-based Mouser Electronics and Advanced Micro Devices illegally supplied semiconductor components — microchips, processors and programmable devices — that have been used by Russia’s military to kill thousands in drone and missile attacks in Ukraine.
The lawsuits were originally filed in Dallas County District Court but were removed to federal court by the defendants.
In May, lawyers for the technology companies, led by King & Spalding partner Tom Melsheimer, asked Judge Fitzwater to dismiss the cases claiming they are fatally flawed because they fail to directly link the technology companies’ products to horrific attacks on Ukrainians, fail to show misconduct by the chip makers and failed to file their lawsuits in a timely manner.
“The plaintiffs plead facts against the Russians and the makers of the missiles but not against these defendants,” Melsheimer told the judge in May. “The mere existence of the chips is not enough to maintain causation. They have to show that the chips in the missiles are from our manufacturers and got there through misconduct.”
Melsheimer said the plaintiffs’ lawsuit states that many chips made by many different manufacturers have been found in the missiles and drones, which he said “undermines their argument in this case” that the chips by these four manufacturers were used in the specific attacks that injured the plaintiffs.
The defendants also argued that Judge Fitzwater should dismiss the case because the state “tort claims impermissibly conflict with federal law.”
Munger Tolles partner Ashley Aull argued that federal export laws and regulations preempt the Texas lawsuit.
“States have never regulated” [federal export matters] because it “is outside of the state’s power,” Aull said.
The Ukrainian citizens are represented by a team of prominent Texas lawyers, including Austin trial lawyer Mikal Watts, Dallas trial lawyer Charla Aldous and the Dallas office of Baker Hostetler.
“Defendants, as manufacturers and suppliers of dangerous instrumentalities, knew or should have known that diversion of their semiconductor components to Russia posed a foreseeable harm that the components would be used to arm the Russian military to attack civilians in violation of international law,” Watts told The Texas Lawbook in an interview in December. “The defendants had a common law duty under Texas law to not entrust their dangerous instrumentalities to a known violent actor.”
Judge Fitzwater rejected the defendants’ preemption claims.
“The negligence claim is premised on an alleged duty defendants owed in exercising reasonable care to design, implement, and supervise their compliance programs,” the judge wrote. “The [Export Control Act] does provide the executive the authority to establish requirements for compliance with export controls and to approve standards for compliance.”
The problem with the plaintiffs’ claims, Judge Fitzwater wrote, is they “failed to plausibly plead causation.”
“The complaints cite sources that explain that defendants’ components have been found in Russian weapons,” the judge wrote. “Yet these sources also show that Russian weapons have been found to contain components from numerous other companies located in and outside the United States. Plaintiffs’ contention that this is an argument for the jury is unavailing.”
“Plaintiffs allege that defendants sold and distributed components at an unspecified time, directly or indirectly, to unknown state actors and/or companies located in various countries who used these components to create weapons that were then supplied to Russia and ultimately used to harm plaintiffs in Ukraine,” he wrote.
Judge Fitzwater said the defendants’ conduct is “far too attenuated from any alleged injury to [plaintiffs] to be a substantial factor in bringing about such harm.”
Besides Melsheimer, the technology companies have hired some of the biggest names in the trial bar, including Rex Mann of King & Spalding, Anna Rotman of Kirkland & Ellis, Dallas attorney Jeff Tillotson and Faegre Drinker lawyers Eli Burriss and Abbey Hernandez. The semiconductor makers have also hired Munger Tolles partners L. Ashley Aull, Gregory Stone and David Ryan.
The primary case is Liudmyla Dmytrivina v. Texas Instruments.