In this edition of Litigation Roundup, we have details on the outcome of a discrimination lawsuit brought by a Black attorney in Houston who alleges he was kicked out of a bar at the Post Oak Hotel for wearing a “[Mark] Lanier 6.0 Trial Academy Master Class” hat, Whirlpool gets a $25 million trademark infringement win in the Eastern District of Texas, and the Texas Supreme Court passes on hearing a case involving the Judicial Branch Certification Commission’s regulation of licensed court reporters.
In litigation-adjacent news, at the end of January, Texas Sens. John Cornyn and Ted Cruz announced they had begun accepting applications from “qualified Texans” to fill vacancies on district court benches and in the U.S. Attorney and U.S. Marshal offices.
“As a former judge and Attorney General of Texas, I know firsthand how critical it is for our state to have the best and brightest jurists sitting on the federal bench and working to uphold the rule of law,” Cornyn said in the news release. “I encourage qualified Texans who are interested in serving to submit their applications to our review committee.”
Anyone interested in applying can access the questionnaire here and must submit their application packet by March 3. Applications will be reviewed by members of the bipartisan panel of Texas attorneys who make up the Federal Judicial Evaluation Committee. The panel will interview candidates and make recommendations to the senators.
“Selecting lawyers to serve as federal judges is one of the most important duties I have as a U.S. Senator,” Cruz said in the release. “Texans deserve principled, unwavering leaders who will defend the Constitution, honor the rule of law, and serve with integrity.”
Also, late last month, it was announced that Deputy Solicitor General Lanora Pettit has joined the Trump administration as a deputy assistant attorney general in the office of legal counsel. Earlier in January, Ryan Baasch joined the Trump administration, leaving his role as associate deputy attorney general to serve as a special assistant to the president for economic policy. Pettit joined the Texas AG’s office in 2019 and argued many cases before various appellate courts on behalf of the state.
“Lanora’s legal expertise, work ethic, and leadership has been such an incredible asset to our agency, and I’m wishing her the very best in her new position in the Trump administration,” Attorney General Ken Paxton said in a news release.
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.
Southern District of Texas
Feldman & Feldman Prevails in EasyKnock’s Defamation Suit
A defamation lawsuit filed in November 2021 by the now-defunct real estate company EasyKnock against Houston litigation boutique Feldman & Feldman has been dismissed by a federal judge.
U.S. District Judge George C. Hanks Jr. signed an order dismissing the case without prejudice Jan. 27, explaining in a short order that after the lawyers representing EasyKnock withdrew from the case, he told EasyKnock at a hearing in early January to have new lawyers file an appearance by Jan. 22 “and informed the parties that a failure to do so will result in dismissal of the case for want of prosecution.”
EasyKnock had accused the law firm of “stoop[ing] to shocking levels of deceit and predation to solicit business.” The company’s lawsuit was filed in response to content on Feldman & Feldman’s websites, warning readers about what the firm alleged was the company’s “predatory lending tactics” and accusing EasyKnock of engaging in “patently false and misleading practices designed to induce Texas homeowners in highly suspect agreements jeopardizing the ownership of their constitutionally protected homestead.”
But in an answer filed the same month as the lawsuit, Feldman & Feldman told the court all it was doing was alerting Texans to the “sale-leaseback practices” EasyKnock employs, which in Texas are considered “pretend sales” and are a violation of the Texas Deceptive Trade Practices Act.
“Before EasyKnock’s business practices came under scrutiny of state and federal regulators, Feldman & Feldman committed to fight EasyKnock and keep our post online so the public could be made aware that EasyKnock’s business practices could cost homeowners their home,” the law firm said in a statement issued after the suit was dismissed.”
“Feldman & Feldman remains proud of the role it played in shedding light on EasyKnock’s business practices and of its commitment to successfully fighting for clients in any forum necessary.”
EasyKnock had previously been represented by Christopher Trowbridge, Saba Syed and Kristopher Hill of Bell Nunnally & Martin.
Feldman & Feldman is represented by Charles “Chip” Babcock IV and John Edwards of Jackson Walker.
The case number is 4:21-cv-03669.
Post Oak Hotel Gets Summary Judgment Win in Discrimination Suit
Houston’s five-star Post Oak Hotel and its five-star H-Bar restaurant and bar have been freed from a discrimination lawsuit brought by a Black lawyer who alleges he was kicked out of the bar where he was meeting another lawyer because of his race.
Willie Powells filed his lawsuit in October 2023, alleging that he was the only Black person inside the H-Bar on March 8, 2023, and showed up to his meeting wearing a business suit with a button-down white shirt. He was also wearing a cap he received from a “trial academy” put on by Houston plaintiffs lawyer Mark Lanier.
According to Powells’ lawsuit, other people in the bar, who were white, were wearing cowboy hats, jeans that were frayed and had holes and jean shorts. An employee approached Powells and said he had to remove his hat to comply with the dress code or leave.
“The demeanor of the employee was abrupt and rude. Willie pointed out that other bar patrons were wearing hats but this did not change the mind of the H Bar employee,” the suit alleges.
After speaking with a manager, who affirmed the dress code, Powells left.
U.S. District Judge Lee Rosenthal entered final judgment dismissing the lawsuit with prejudice on Jan. 27, and Powells filed notice he was appealing the ruling to the Fifth Circuit the same day.
“We are glad Judge Rosenthal recognized that the hotel had a clear headgear dress code that was explained to Mr. Powells by hotel staff that day,” Sammy Ford IV of Ahmad Zavitsanos & Mensing, who represented the hotel and bar, said in a statement. “Actual racial discrimination is important to address, but this was not an example of that serious problem.”
In her 11-page opinion, Judge Rosenthal noted Powells presented no evidence that non-Black individuals were allowed to wear a baseball cap.
“Instead, the summary judgment evidence shows that the only non-Black individuals wearing hats were wearing cowboy hats, which under the Post Oak dress code was an acceptable form of headwear for the five-star restaurant and bar,” she wrote.
The evidence showed, Judge Rosenthal wrote, that the hotel and bar allowed cowboy hats and fedoras only, and banned the wearing of baseball caps, bucket hats and beanies.
“In Texas, cowboy hats are often made of expensive materials, including felt consisting of fur and wool, and are hand-tooled and decorated. Such hats are fashion accessories, not work clothes. Cowboy hats are often considered suitable for business, semi-formal attire, or even formal attire, and are often seen at business meetings in offices, conference rooms, courthouses, at upscale restaurants and bars, and at social events and gatherings ranging from impromptu gatherings in homes or restaurants and bars to elaborately decorated ballrooms.”
Powells is represented by Alexander Johnson and Randall Kallinen of Kallinen Law.
The hotel is represented by John Zavitsanos, Jarmonique Smith and Karina Sanchez-Peralta of Ahmad Zavitsanos & Mensing.
The case number is 4:23-cv-03790.
Eastern District of Texas
Jury Awards Whirlpool $25M in Trademark Trial
Whirlpool, which owns the KitchenAid brand, has been awarded $25 million in damages by a jury in East Texas that found two companies selling look-alike versions of its famous stand mixer had willfully infringed and diluted its trademark for the popular kitchen appliance.
Whirlpool had filed suit in January 2022 against Shenzhen Sanlida Electrical Technology Co. and Shenzhen Avoga Technology Co., accusing the companies of selling knock-off versions of its stand mixer on Wayfair and Amazon.
“Rather than develop their own unique aesthetic from all the design possibilities available, Defendants chose and intended to imitate Whirlpool’s iconic and distinctive KITCHENAID Stand Mixer design,” the suit reads. “Defendants’ copying is an intentional and unfair attempt to trade on the goodwill of Whirlpool and confuse consumers.”
The jury returned its verdict Jan. 29, finding that the conduct was willful and that the defendants had profited a little more than $2 million from the infringement.
Chief U.S. District Judge Rodney Gilstrap presided over the case that began with jury selection Jan. 27.
Whirlpool is represented by Melissa R. Smith of Gillam & Smith and Marc Lorelli and Chanille Carswell of Brooks Kushman.
The case number is 2:22-cv-00027.
Texas Supreme Court
Justices Won’t Hear Judicial Branch Certification Commission Appeal
The Texas Supreme Court on Friday declined to hear an appeal lodged by the Judicial Branch Certification Commission that had asked the court to bring an end to a lawsuit brought by a court reporter.
The decision leaves in place an April 30 ruling from a three-justice panel of the Third Court of Appeals in Austin and means the lawsuit brought by court reporter Jo Ann Holmgren and her company Preferred Legal Services will return to Travis County district court for further proceedings.
Holmgren filed suit against the JBCC, the state agency charged with certifying and regulating court reporters, after it dismissed her complaint against a now-defunct company, StoryCloud. Holmgren alleged the company — which registered with the JBCC as a court reporting firm in 2019 — relied on notaries, rather than licensed court reporters, to administer oaths and artificial intelligence to transcribe depositions, in violation of the rules regulating court reporting.
The Judicial Branch Certification Commission is represented by Helen Kelley of the attorney general’s office.
Holmgren is represented by Clint F. Sare.
The case number is 24-0475.
U.S. Court of Appeals for the Fifth Circuit
Permanent Injunction of $15 Minimum Wage Order for Fed. Contractors Reversed
Texas, Louisiana and Mississippi failed to convince a three-judge panel of the Fifth Circuit to leave in place a permanent injunction against an executive order mandating a $15 hourly minimum wage for federal contractors.
A 21-page ruling issued Tuesday by Judges Irma Carrillo Ramirez, Edith Brown Clement and James E. Graves Jr. reversed a permanent injunction U.S. District Judge Drew B. Tipton had entered in September 2023.
“In considering plaintiffs’ challenges to the wage mandate, the Court will not be evaluating whether raising the minimum wage paid by federal contractors and subcontractors to certain employees to $15 an hour is good policy,” Judge Tipton wrote in the order that enjoined the executive order. “Instead, the Court will be answering one question: Did the President violate the Procurement Act in unilaterally raising the minimum wage paid by federal contractors to their employees to $15 an hour? The Court finds that he did.”
The panel rejected an argument from the states that the subject matter of the executive order is outside the president’s expertise, writing that “As the President is exercising the government’s proprietary authority, the wages paid by federal contractors are directly within the President’s purview.” The panel also rejected the states’ argument that it defied common sense to hold that Congress empowered presidents, through the Federal Property and Administrative Services Act of 1949, “to impose national social policies in a statute designed to streamline procurement.”
“As discussed, the FPASA’s delegation of authority to the President is clear, unambiguous, and broad — other than their policy concerns, which we cannot properly consider, the States do not explain why this outcome defies common sense under the law,” the panel wrote.
The case will now return to Judge Tipton so he can consider an argument raised by the states that he declined to consider in the first instance: whether Congress violated the nondelegation doctrine by passing the FPASA.
Texas is represented by assistant attorneys general Aaron Nielson and Amy Hilton and by Christopher D. Hilton of Stone Hilton.
The federal government is represented by Daniel Winik of the Department of Justice.
The case number is 23-40671.