In this edition of Litigation Roundup, we detail two recent Texas Supreme Court rulings defining the contours of the Texas Citizens Participation Act, the whole Fifth Circuit unites to overturn a 45-year-old binding precedent in a lawsuit between a Houston plaintiffs firm and a former associate, and in another Fifth Circuit ruling, a panel upholds a $26.5 million award for a man injured in a collision with a letter carrier, writing that it wouldn’t “manufacture inequity, uncertainty, and arbitrariness” by adopting arguments presented by the Department of Justice in that case.
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.
Northern District of Texas
Dallas-based TPN Holdings Draws Discrimination Suit
The former chief executive officer of Dallas-based marketing and advertising agency TPN Holdings, an affiliate of global media and marketing company Omnicom Group, has accused her former employer of unlawfully discriminating against her based on her gender and age.
Ellen Cook, 63, who worked for the company for 20 years, filed suit Friday against TPN and Omnicom, bringing claims for sex and age discrimination, retaliation and violations of the Equal Pay Act and Texas Commission on Human Rights Act, seeking unspecified damages.
Cook alleges that when she found out she was paid “substantially less” than her male predecessor and less than another man who was CEO of “a smaller and less successful Omnicom agency,” she raised the issue internally and was “promised a review.”
“Instead, she was ignored,” the suit alleges. “When she followed up, she received no response. Within a few short months, defendants retaliated and told her that her role was being eliminated as part of a purported restructuring — a decision that affected no one else at her level and removed only one CEO: the 62-year-old woman who had dared to raise concerns.”
The case has been assigned to U.S. District Judge Brantley Starr.
Cook is represented by Rogge Dunn and Michael Quigley of Rogge Dunn Group.
Counsel for TPN and Omnicom Group had not filed an appearance as of Monday evening.
The case number is 3:25-cv-01245.
Eastern District of Texas
Dallas-based ShiftKey Says Competitor Engaging in ‘Egregious,’ ‘Illegal’ Tactics
ShiftKey, which provides a digital platform for healthcare professionals to match with open shifts at healthcare facilities nationwide, has filed a lawsuit against two former employees and a direct competitor, NurseIO, for misappropriating its proprietary information and trade secrets.
The 40-page lawsuit brings claims for violations of the Defend Trade Secrets Act, breach of contract, breach of fiduciary duty, tortious interference and violations of the Computer Fraud and Abuse Act. Alongside NurseIO, former ShiftKey employees Christian McNamee, who was director of credentialing, and Yulia McKinney, who was director of sales, also are named as defendants.
“ShiftKey has learned, through receiving recent information and its internal investigation, that NurseIO and former ShiftKey employees McNamee and McKinney have engaged in egregious acts of illegal competitive tactics,” the lawsuit alleges. “As a result of these actions, ShiftKey is forced to defend itself and the business it has spent nearly a decade building.”
Regan Parker, the chief legal and public affairs officer for ShiftKey, issued a statement that while he welcomes “healthy competition” as a critical part of growth, that competition should be “fair, legal and above board.”
“Based on the evidence we have seen through our initial investigation, the actions that NurseIO and our former employees appear to have taken cross the line into illegal activity, and we had no choice but to act and protect our business,” he said.
Chief U.S. District Judge Amos L. Mazzant, who has been assigned to the case, has set a hearing to take place Friday morning on ShiftKey’s emergency motion for a temporary restraining order and preliminary injunction.
According to the lawsuit, McNamee worked at ShiftKey for four years before he was fired in April 2024. Soon thereafter he signed on as NurseIO’s vice president of strategy. He “immediately” began identifying ShiftKey employees that NurseIO should target for recruitment, the suit alleges, and initially those “improper recruitment efforts were unsuccessful.”
McKinney, described as a “longtime, high-level employee of ShiftKey,” resigned “abruptly” on May 5, without providing two weeks’ notice.
“Two days after McKinney departed, ShiftKey learned that McKinney was actively soliciting ShiftKey clients on behalf of NurseIO,” the lawsuit alleges. “Worse, ShiftKey discovered only through forensic analysis that starting after she began discussions with NurseIO in March 2025 and escalating between the time period of approximately April 27, 2025 through May 2, 2025, McKinney stole thousands of pages of documents, including ShiftKey’s proprietary information and trade secrets. McKinney tried (unsuccessfully) to cover her tracks by deleting the transmittal emails she sent from her ShiftKey email address.”
The trio of defendants are alleged to have undertaken “coordinated efforts to misappropriate shiftKey’s proprietary information and trade secrets.”
ShiftKey is represented by Michael McCabe, Jordan Strauss, Michele Naudin and Nicole Paige of Munck Wilson Mandala.
Counsel for NurseIO and the individual defendants had not filed an appearance as of Monday afternoon.
The case number is 4:25-cv-00521.
Texas Supreme Court
TCPA Applies to Negligent-Hiring Claim Against Walgreens
A Walgreens employee was exercising free speech rights in summoning police about a suspected shoplifter, and the drugstore giant is entitled to dismissal of a lawsuit filed by the wrongly accused woman, the court said in a May 16 ruling.
The unanimous opinion by Justice Brett Busby reversed a decision by the Fourteenth Court of Appeals that the TCPA did not apply to Pamela McKenzie’s claim that Walgreens was negligent in hiring, training and supervising the employee because it focused on conduct rather than solely on communications.
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.
The court focused on 2019 legislative changes to the TCPA narrowing the required nexus between a legal claim and the protected activity by authorizing a dismissal motion only when the action is “based on or is in response to” the activity.
“McKenzie’s claims were also filed in reaction to the communications, so the NHTS claim is additionally ‘in response to’ Walgreens’ exercise of the right of free speech and is thus subject to a dismissal motion under the TCPA. This conclusion is simply a consequence of the statute’s sweep; it in no way suggests that the Court regards McKenzie’s allegations as specious or her experience as insignificant,” Busby said.
McKenzie did not meet her burden to show negligent hiring of the unidentified employee or how it could have caused the events at the store, Busby said.
The Supreme Court also upheld the Fourteenth COA’s dismissal of McKenzie’s claim for intentional infliction of emotional distress, finding that she did not file a petition for review on that issue and that she failed to identify extreme and outrageous conduct necessary to support that claim.
The court remanded the case to the trial court for dismissal of McKenzie’s other claims against Walgreens.
Houston lawyer Phil Griffis argued the case for Walgreens, and Houston lawyer U.A. Lewis presented arguments for McKenzie.
The case number is 223-0955.
Justices Clarify TCPA’s Definition of ‘Legal Actions’
Earlier this month, the Texas Supreme Court issued a unanimous ruling in two cases it consolidated for oral argument — Ferchichi et al. v. Whataburger Restaurants et al. and Haven at Thorpe Lane v. Pate et al. — spelling out for litigants what does not constitute a “legal action” under the Texas Citizens Participation Act.
In particular, the cases asked the court to determine if a motion to compel discovery and a motion seeking associated sanctions are considered “legal actions” under the state’s anti-SLAPP law. The law contains a mechanism that allows for early dismissal of “legal actions” that are based on or brought in response to a party’s exercise of First Amendment rights.
The intermediate appellate courts that heard the cases, the Fourth Court of Appeals in San Antonio and the Third Court of Appeals in Austin, had both separately decided that the motion to compel discovery and the motion for related sanctions did constitute legal actions and reversed trial court decisions that denied the TCPA motions to dismiss.
“In sum, we hold that a motion to compel and for sanctions does not present a substantive underlying claim for relief and therefore is not a ‘legal action’ subject to dismissal under the TCPA,” Justice Debra Lehrmann wrote for the Texas Supreme Court.
The motions at issue in this case, Justice Lehrmann wrote, are “not remotely” like a lawsuit but instead are “based on conduct ancillary to the substantive claims in the case.”
“The courts of appeals made no effort to address the required connection, instead construing the catch-all provision in isolation and effectively holding that any filing that requests relief from the court is covered by that provision,” the court held.
Haven at Thorpe Lane is represented by Ray Torgerson, Lauren Harris, Stephanie Holcombe, David Martin, and Christopher Wawro.
Pate is represented by Russell Sloan of Austin and Kyle Dingman of Brown Law Firm.
The petitioners in the Whataburger case are represented by Adam Poncio of Poncio Law Offices.
Whataburger is represented by Roland F. Gonzales, Javier T. Duran and Karen L. Landinger of Germer PLLC.
The case numbers are 23-0568 and 23-0993.
U.S. Court of Appeals for the Fifth Circuit
Panel Upholds $26.5M win for Man in Postal Truck Collision
On Friday, the Fifth Circuit affirmed a ruling in favor of a man — who died during the appeals process — who was awarded $26.5 million by a federal judge who found he had been permanently injured in a crash caused by a U.S. Postal Service employee.
Michael Le was backing out of the driveway of his Grand Prairie home on a rainy day in May 2018 to go pick up his son from school at the same time as a postal worker, Jill Williams, was distributing mail in a community mailbox on the opposite side of the street, catty-corner from Le’s house.
A package Williams needed to deliver wouldn’t fit in the community mailbox, meaning she needed to leave it at the recipient’s door a few houses behind her. Rather than walk in the rain to deliver the package, she decided to reverse against the flow of traffic to get to the house.
USPS drivers are taught only to reverse in an emergency, largely because of blind spots that make it nearly impossible to see behind the mail truck. As she reversed, the mail truck hit the back right panel of Le’s car, which was in drive but hadn’t yet moved forward.
Immediately following that impact, Le told officers at the scene, he lost control of his legs and his car lurched forward at about 20 mph as he drove through his own yard and a neighbor’s fence before coming to rest after hitting his neighbor’s house.
Le was walking around after the accident and initially refused medical attention but was soon transported to the hospital by family after he slumped to the ground and was unable to stand.
Le’s trial counsel, Kyle Pugh of Dallas, had to convince U.S. District Judge Reed O’Connor that the crash with the letter carrier, which took place at between 2.5 mph and 6 mph, caused a “chalk-stick” through-and-through spinal fracture that rendered his client quadriplegic.
Pugh had to explain that Le, who worked at the Dallas Fort Worth Airport for a logistics and supply company, had been living an active life with the undiagnosed spinal disease that made him more susceptible to fractures at low levels of force, and that it was the crash with the letter carrier — and not the immediate subsequent crash — that caused Le’s injuries.
Judge O’Connor heard four days of testimony in April 2023 and issued his opinion July 24, 2023, awarding Le and his wife, Dung Le, $26.5 million in damages.
The federal government filed notice of appeal in February 2024. As the Fifth Circuit panel wrote, Le died 453 days after Judge O’Connor rendered final judgment, and 72 days after the case was fully submitted to the Fifth Circuit.
“The Government waited until oral argument to assert that Mr. Le’s death nullifies the final judgment and renders any future damages awards inequitable,” the panel wrote. “The exact opposite is true.”
Judge Patrick E. Higginbotham, writing for the court, explained that the government had offered “no answer” and cited “no cases that suggest a plaintiff’s death during the pendency of an appeal has such an effect on the final judgment.”
Judge Higginbotham wrote that the court was rejecting that argument, and that to hold otherwise “would manufacture inequity, uncertainty, and arbitrariness.”
“The district court — using all available evidence — made an informed determination on life expectancy and entered final judgment in favor of Mr. Le. Adopting the number presented by the government’s expert witness, the district court found Mr. Le’s life expectancy to have been 12.6 years,” the court wrote. “In doing so, the district court rejected the plaintiffs’ expert witness’ testimony that Mr. Le’s life expectancy was approximately 20 years. No one suggests that if he had lived longer, the awards ought to be adjusted upwards. As such, Mr. Le’s damages awards are preserved for his estate.”
Pugh issued a statement thanking the Fifth Circuit for its “careful scrutiny in confirming Judge Reed O’Connor’s well-reasoned judgment.”
“It is unique for the Fifth Circuit to uphold such a significant award for a personal injury judgment,” he said.
“We are saddened by the death of Mr. Le. I hope the affirmation of this judgment gives strength and courage to the Le family. As trial attorneys, we will continue to fight for all people who suffer injustice.”
Judges Higginbotham, Leslie H. Southwick and Chief Judge Jennifer Walker Elrod sat on the panel.
Le is also represented by Jeffrey Scott Levinger of Levinger PC, Kellie L. McKee of C. Kyle Pugh Attorneys at Law, and John E. Schulman of Schulman Law Firm.
The government is represented by Benjamin Lewis of the Department of Justice.
The case number is 24-10123.
En Banc Court Decides to ‘Correct Course’
Adopting a turn of phrase used by Judge Stuart Kyle Duncan in a July 2024 concurring opinion calling for the move, the en banc Fifth Circuit on Friday decided to “unweave Weaver” and overruled 45-year-old binding precedent that had barred appellate review of waiver-based remand orders.
The ruling came in a dispute between Abraham Watkins Nichols Agosto Aziz & Stogner and former associate Edward Festeryga, whom the firm alleges tried to take its clients with him when he left. Judge Duncan was on a three-judge panel that had earlier sided with the law firm and affirmed a ruling that sent the lawsuit back to state court.
After litigation began in the state court, Festeryga attempted 17 days later to remove the case to federal court on the basis that he’s a Canadian citizen. Congress allows 30 days for a litigant to remove a case to federal court. Prior to removal, he also challenged the litigation by filing a motion to dismiss under the Texas Citizens Participation Act.
U.S. District Judge George C. Hanks Jr. ruled that Festeryga had waived his right to remove the case by agreeing to a protective order and by filing a motion to dismiss in the state court.
On appeal, Judge Duncan wrote that the panel, which included Judges Don R. Willett and James L. Dennis, had “convincingly” laid out an argument as to why Weaver is incorrect and that two sister circuits have also “thrown shade at Weaver.” But despite that, the panel followed Weaver “under the rule of orderliness” and affirmed the trial court’s ruling.
“Gritting my teeth, I concur,” Judge Duncan wrote in his July concurrence. “The removal statutes have shifted over the years, but not enough to erase the stubborn fact that Weaver transformed a remand for waiver-by-participation into a remand for lack of federal jurisdiction,” he wrote. “That is incorrect, as two circuits (and now our panel) have confirmed. We should be able to review the waiver-based remand here under settled precedent. Only Weaver bars the way. The proper course is for our en banc Court to unweave Weaver.”
On Sept. 11, the court voted to rehear the dispute en banc. The court heard oral arguments in January.
“Weaver’s conclusion that waiver-based remand orders are unreviewable is untenable,” the court wrote. “We therefore overrule Weaver and hold that waiver through state-court participation is neither jurisdictional nor a removal defect under § 1447(c). It thus falls outside § 1447(d)’s bar on appellate review.”
The case will now be returned to the original panel that heard the appeal to consider remaining, unaddressed issues in the case, including whether the waiver ruling should stand and whether the parties are diverse.
Festeryga is represented by Derek Reinbold, Alejandra Ávila and Matthew Reade of Kellogg, Hansen, Todd, Figel & Frederick and Guillermo Alarcón of Armbrust & Brown.
Abraham Watkins is also represented by its own Muhammad Aziz and Dale Jefferson of Martin, Disiere, Jefferson & Wisdom.
The case number is 23-20337.
Janet Elliott contributed to this report.