In this edition of Litigation Roundup, we bring details of a defense win for Cisco in a jury trial in the Western District of Texas, Greyhound escapes a $15 million damages request in a wrongful death trial in Dallas County and the U.S. Court of Appeals for the Fifth Circuit affirmed the dismissal of a pro se lawsuit against the American Bar Association.
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
Jury Issues $2M Wrongful Death Verdict in Greyhound Case
In a wrongful death lawsuit where a family was seeking $15 million in damages against Greyhound Lines, a jury recently awarded $2 million to the surviving spouse of a man who was hit and killed after exiting the bus in rural West Texas.
According to court documents, the incident happened Feb. 24, 2021. Erik Myers was taking the bus from New Mexico to Texas when he “experienced a medical emergency overnight.” His wife, Sara Geimer, filed suit in March 2021, alleging bus driver April Lowe had pulled over and allowed Myers to deboard, but that he was left on the side of the road, where it was “dark and extremely cold” and that he was “left without his personal belongings, including his cell phone.”
The lawsuit alleged that hours after he exited the bus, he was struck by a vehicle and killed. Geimer had alleged Greyhound and Lowe were negligent in allowing Myers to exit the bus at the unscheduled stop and should have called law enforcement and waited for help to arrive. Greyhound presented evidence to the jury that Myers was under the influence of prescription medication, including a sleep aid, and alcohol at the time of his death.
In a 10-2 decision, the jury found the negligence of both bus driver April Lowe and Myers caused the incident and apportioned 50 percent liability to each of them.
The panel awarded Myers’ wife $1 million for loss of companionship and $1 million for past and future mental anguish. Because of the apportionment finding, Greyhound will owe $1 million in damages.
The jury returned its verdict Feb. 4 after a seven-day trial that was presided over by Dallas County District Judge Bridgett N. Whitmore.
Greyhound is represented by Scott Self and Hunter Tormey of Fee Smith & Sharp, William Toles of Munsch Hardt Kopf & Harr and Heidi Gumienny of Wright Close & Barger.
Geimer is represented by Cesar Tavares and Emily Vechan of Williams Hart Boundas.
The case number is DC-21-03628.
Western District of Texas
Cisco Beats Patent Infringement Claims at Trial
A jury recently cleared Cisco of infringing a patent covering technology used in routers that’s held by a non-practicing entity.
WSOU Investments, which does business as Brazos Licensing and Development, filed suit against Cisco Systems in February 2021, accusing it of infringing five patents and seeking $50 million in damages via royalty payments. But by the time the jury got the case, Brazos had trimmed its suit by dropping claims of infringement for three of the patents and Cisco had won summary judgment dismissal of infringement claims of the fourth patent.
U.S. District Judge Alan D. Albright presided over the trial that began with jury selection Feb. 5. Testimony began Feb. 10, and jurors began deliberations and returned a verdict Feb. 12.
Brazos was seeking about $19 million in damages for infringement of the one claim that made it to trial. The jury determined Cisco had not infringed the patent and that it was invalid. The jury also determined Cisco had proven that it was using the technology for more than a year before the patent at issue was filed. In a news release, Gibson Dunn, which represented Cisco, said “[i]t is believed to be the first ever jury verdict finding that a patent could not be asserted under [35 U.S.C.] § 273.”
Cisco is represented by Brian Rosenthal, Kate Dominguez, Allen Kathir, Emily Whitcher, Hyunjong Ryan Jin and Claire Santiago of Gibson Dunn, Elizabeth R. Moulton of Orrick, Herrington & Sutcliffe and Michael E. Jones and Shaun W. Hassett of Potter Minton.
Brazos Licensing and Development is represented by Joseph M. Abraham and Timothy Dewberry of Folio Law Group and Mark D. Siegmund of Cherry Johnson Siegmund James.
The case number is 6:21-cv-00128.
Eastern District of Texas
Amended Petition Moots Dismissal Bid in Tesla Patent Suit
Chief U.S. District Judge Rodney Gilstrap on Monday denied as moot a motion to dismiss filed by Tesla in a patent infringement lawsuit brought by Granite Vehicle Ventures, noting the filing of an amended complaint Feb. 19 required the move.
Granite sued Tesla in December, alleging the company’s self-driving technology infringed three of its patents. On Feb. 14, Tesla filed a motion under seal to move the lawsuit to the Northern District of California.
“There is a strong presumption of public access to court records, but Tesla’s motion
includes information that is not publicly disclosed which Tesla maintains as confidential in its
ordinary course of business,” Tesla told the court, noting that Granite was not opposed to it filing under seal. “Public disclosure of this information could be harmful to Tesla and/or third parties.”
Granite had not responded to the motion to transfer as of Monday. In another order entered Monday, Judge Gilstrap set a scheduling conference in the case for March 26, where the parties will set dates for a claim construction hearing and trial.
Tesla is represented by its own Ashraf Fawzy, Paul Margulies and Allison Huebert.
Granite is represented by Alden G. Harris, Leslie Payne, Blaine Larson, Kyle Ruvolo and Lily Glick of Heim Payne & Chorush and Andrea L. Fair and Claire A. Henry of Miller, Fair, Henry.
The case number is 2:24-cv-01007.
Northern District of New York
Texas Joins 20 States Suing New York Over Climate Change Superfund Act
Nearly half the states in the union have united in a constitutional challenge to a New York law, the Climate Change Superfund Act, alleging it constitutes a “retroactive and extraterritorial shakedown” of the energy industry.
West Virginia is leading the lawsuit that was filed Feb. 6. The other states that joined the suit are Alabama, Arkansas, Georgia, Idaho, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah and Wyoming. The West Virginia Cole Association, Gas and Oil Association of West Virginia, America’s Coal Association and the Alpha Metallurgical Resources also joined as plaintiffs.
The challenged law would fine coal, natural gas and oil producers a total of $75 billion over 25 years, according to the lawsuit, and the amount of the fine would be tied to each company’s “proportionate share of covered greenhouse gas emissions” that were released between 2000 and 2018.
“In return for keeping the lights on and fueling our manufacturing, energy producers are being targeted for destruction by the left-wing policies of New York radicals,” Texas Attorney General Ken Paxton said in a news release. “The negative impact of this unconstitutional law will extend far beyond New York, and I am proud to stand by fellow attorneys general to stop this from happening.”
The states allege New York’s law is preempted by the constitution and the Clean Air Act.
“The Climate Change Superfund Act is an ugly example of the chaos that can result when states overreach,” the suit alleges. “It imposes retroactive fines on traditional energy producers for their purported past contributions to greenhouse gas emissions, which were lawful operations endorsed by both federal and state regulators. And rather than focusing on greenhouse-gas emissions released in New York, the Act punishes a small group of energy producers for global greenhouse gases emitted from all sources into the atmosphere from 2000 to 2018.”
The states are represented by their respective attorneys general. The lawsuit has been assigned to Chief Judge Brenda K. Sannes.
The case number is 1:25-cv-00168.
Texas Supreme Court
SCOTX Hears Walgreens TCPA Case in Negligent-Hiring Claim
An attorney for Walgreens argued that a negligent-hiring claim brought by a woman who was wrongly accused of being a serial shoplifter should be dismissed under the Texas Citizens Participation Act.
During oral arguments Thursday at Baylor Law School, Houston lawyer Phil Griffis told the court that by allowing the woman’s claim to move forward the Fourteenth Court of Appeals “created a precedent that in our mind — I don’t think it’s exaggeration — but this erases the TCPA for employer defendants who are being sued for acts of negligent hiring.”
Pamela McKenzie’s lawyer, U.A. Lewis of Houston, countered that the result sought by Walgreens would put the drugstore giant’s assertion of its free speech rights superior to McKensie’s constitutional rights as an innocent person who was humiliated at the store.
McKenzie sued Walgreens after being detained and questioned by a police officer who responded to an employee’s report that McKenzie had shoplifted from the store that day and previously. The officer reviewed store video and determined that she was not the person shown.
Walgreens moved to dismiss her claims under the TCPA, arguing that its employee’s report to law enforcement was an exercise of a First Amendment right. The Legislature enacted the TCPA in 2011 to prevent frivolous lawsuits from stifling free speech. The act created an expedited motion to dismiss a suit based on or in response to an individual’s free speech.
The trial court denied the motion and Walgreens appealed. A divided court of appeals affirmed with respect to the negligent-hiring claim but reversed and dismissed other claims, including intentional infliction of emotional distress and negligence.
The panel majority said the negligent-hiring claim does not implicate the TCPA because it is based in part on conduct by Walgreens before the incident and not based entirely on the employee’s police report. The dissenting justice said the majority erred in treating the negligent-hiring claim as an independent tort.
By a 5-4 vote, the Fourteenth Court denied Walgreen’s motion for rehearing en banc.
Griffis, in response to questions from Justice Jeff Boyd, said the court of appeals should have found that McKenzie failed to make prima facie showing on the negligent hiring claim.
“I think, respectfully, where they walked into error is after finding employee conduct protected still going ahead and doing an independent analysis of the negligent hiring claim, which we think is the test,” said Griffis. “That independent analysis should have never been done because in doing the independent analysis they got into this thing about, well, was it conduct, is it communications, did it happen before [police were called].”
Lewis said facts asserted by McKenzie should be sufficient to support the negligent-hiring claim even if the underlying negligence claim against the employee was dismissed.
“The constitutional issues that bother me about this is that Walgreens is asking for constitutional rights, piggybacking off of an unidentified employee that they are not even agreeing exists and applying the TCPA as a result, making Mrs. McKenzie’s constitutional rights inferior to Walgreens at the end of the day,” Lewis said. “She should have the ability to exercise her right to petition when she’s faced with the issue that she was faced with — being an innocent person walking into Walgreens that day in addition to the Seventh Amendment constitutional provisions that are available to her to have a right to have a jury decide the facts on these issues.”
The case number is 23-0955.
U.S. Court of Appeals for the Fifth Circuit
ABA Gets Early Win in Accreditation Challenge Suit Affirmed
A three-judge panel on Monday affirmed the dismissal of a pro se lawsuit brought by an “aspiring Texas lawyer” who sued the American Bar Association for breach of contract, unjust enrichment and violations of state and federal antitrust laws.
Caleb D. Glick, who was seeking about $10 million in damages, alleged “that his future career as a lawyer is thwarted by Texas’s requirement that he attend an American Bar Association-accredited law school,” according to court records.
U.S. District Judge Reed O’Connor issued an order in July 2024 accepting U.S. Magistrate Judge Hal R. Ray Jr.’s recommendation to dismiss the lawsuit. Judge O’Connor denied Glick’s motion for reconsideration the same month.
Glick filed his notice of appeal in July, arguing, among other things, that the ABA had “benefited by obtaining coercive leverage over him through its monopolistic control of the Texas legal system.”
Glick filed suit in Parker County district court, bringing claims for breach of contract and unjust enrichment in March 2024. The ABA removed the case to federal court in Fort Worth the following month.
Judges E. Grady Jolly, Edith Jones and Don R. Willett sat on the panel that issued the per curiam opinion. Judge Willett concurred in the judgment only.
“Because Glick’s appeal lacks any arguable merit, it is frivolous. Accordingly, Glick’s appeal is, in all respects, dismissed” the panel held.
Glick represents himself.
The ABA is represented by Christopher Dodrill of Greenberg Traurig.
The case number is 24-10669.
Reporter Janet Elliott contributed to this report.