In this edition of Litigation Roundup, the dispute between ExxonMobil and two activist shareholders could be over, the battle between Yelp and Texas over pregnancy crisis center disclaimers continues and the Fifth Circuit agrees that a discrimination lawsuit against Lockheed Martin was rightfully tossed.
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Travis County District Court
Texas Gets $21M in Opioid Settlement with Publicis
Publicis Health, a global marketing and communications firm, has reached a $350 million nationwide settlement with several states for its alleged role in the opioid epidemic. Texas’ share will be $21 million.
An agreed final judgment, under which Publicis admitted to no wrongdoing or liability, was entered in the case late last month. Texas had alleged Publicis worked with pharmaceutical companies to push the addictive medication.
“My heart is with our Texas families who have suffered from the fallout of the opioid epidemic,” Texas Attorney General Ken Paxton said in a statement. “I have relentlessly sought accountability for companies that conspired with the pharmaceutical industry to unethically promote dangerously addictive prescription drugs. I will continue to do everything in my power to bring these companies to justice for the harm they created.”
The case was assigned to Judge Laurie Eiserloh.
Publicis is represented by David Anders of Wachtell Lipton Rosen & Katz and David Isaak and Michael Dockterman of Steptoe.
Texas is represented by Stephanie Eberhardt of the attorney general’s office.
The case number is D-1-GN-24-000636.
Northern District of Texas
Exxon Tells Court Activist Shareholders Withdrew Climate Proposal
ExxonMobil Corporation, which filed suit against two activist shareholders Jan. 21 in an attempt to prevent them from putting their climate proposal to a shareholder vote in May, has told the court Arjuna Capital and Follow This have agreed to withdraw the proposal.
Exxon informed the court in a notice filed Feb. 1.
U.S. District Judge Mark Pittman responded by giving Exxon until the end of the day Monday to let him know whether there is anything left for the court to decide.
“It is the court’s understanding that this action was brought to litigate the very issue that plaintiff now says is resolved: Defendants’ proposal for the annual shareholder meeting,” he wrote. “Accordingly, the court instructs plaintiff to file a status update to the court … as to what outstanding claims or issues are before the court in this action. As it stands now, the court struggles to see what the ongoing case or controversy is in this matter given the only relief sought from the court was a declaration that Exxon may exclude defendants’ proposal from its annual shareholder meeting.”
The challenged proposal called for an acceleration of plans to reduce greenhouse gas emissions. Exxon alleged the proposal’s goal is to “shrink the very company in which they are investing by constraining and micromanaging ExxonMobil’s ordinary business operations.”
Follow This has submitted similar proposals in 2022 and 2023, according to the lawsuit, which were “overwhelmingly rejected” by shareholders. In 2023, for example, 89.5 percent of voting shareholders voted against the proposal.
As of press time, Exxon’s requested response to the court was not available on the court’s docket.
Exxon is represented by Mark W. Rasmussen, Jonathan D. Guynn, Noel J. Francisco, Brett A. Shumate and Megan Lacy Owen of Jones Day and Gregg J. Costa and David Woodcock of Gibson, Dunn & Crutcher.
Arjuna Capital is represented by Veronica Renzi and Matthew Miller of Foley Hoag. Counsel for Follow This had not filed an appearance as of Monday.
The case number is 4:24-cv-00069.
Norton Rose Fulbright Draws Suit over Vaccine Mandate
A former IT support analyst at Norton Rose Fulbright has sued the law firm alleging its refusal to grant him a religious accommodation exempting him from the firm’s vaccine mandate constitutes discrimination.
Joshua Boudreaux filed suit Feb. 1. He began working for the firm in Dallas in 2016 and was notified alongside all other firm employees in August 2021 that anyone accessing the office would be required to get the Covid-19 vaccine.
Boudreaux alleges that none of his job duties “necessarily required physical contact in proximity to other persons.” He applied for an exemption, explaining “that he had a sincerely held religious belief as a Christian that prevented him from being vaccinated.”
“Specifically, Boudreaux indicated that he seeks guidance from the Holy Spirit regarding decisions and that he did not feel peace from the Holy Spirit about receiving a COVID-19 vaccine,” the lawsuit alleges. “Boudreaux further indicated that he objected to the use of aborted fetal cells in the development of the COVID-19 because his Christian beliefs require him to be pro-life and oppose abortion. Boudreaux cited numerous Bible verses in support of these two statements.”
The firm denied his request after determining his objection to the vaccine “is a medical belief and not a religious one.”
He was fired in October 2021 for refusing to comply with the mandate.
Boudreaux is seeking compensatory and punitive damages in excess of $300,000.
The case has been assigned to Senior U.S. District Judge Sidney A. Fitzwater.
Boudreaux is represented by Paul MacNeal Davis of Paul M. Davis & Associates.
Counsel for Norton Rose Fulbright had not filed an appearance as of Monday.
The case number is 3:24-cv-00260.
Northern District of California
Judge ‘Reluctantly’ Tosses Yelp’s Suit Against Paxton
In the fight between crowd-sourced review website Yelp and the state of Texas over whether it violated the Texas’ Deceptive Trade Practices Act by adding disclaimers to listings for crisis pregnancy centers, Yelp was recently dealt a blow.
U.S. District Judge Trina L. Thompson on Jan. 31 denied Yelp’s request for an injunction that would bar Texas Attorney General Ken Paxton from “taking any further action to penalize Yelp’s publication of truthful speech about crisis pregnancy centers, including the statement that CPCs ‘typically provide limited medical services and may not have licensed medical professionals onsite.’”
Judge Thompson wrote in the 11-page order that she would be denying the motion and dismissing the case, “albeit reluctantly.”
Paxton had sent Yelp a letter in February 2023 claiming Yelp’s notice to those who visited listings for CPC’s stating that the centers “typically provide limited medical services and may not have licensed medical professionals onsite” was misleading.
Yelp maintained that the statement was true but updated the disclaimer to state “Crisis Pregnancy Centers do not offer abortions or referrals to abortion providers,” according to court documents.
Paxton issued a press release calling the updated notice “accurate,” but seven months later, in September, Paxton’s office sent Yelp a letter notifying the company it intended to sue for alleged violations of the DTPA based on the first notice.
That letter prompted Yelp to file suit preemptively against Texas in the Northern District of California, seeking an injunction. The next day, Paxton sued Yelp in Texas state court.
“To be clear, the court is not convinced that Paxton acted entirely in good faith in bringing this case against Yelp; still, Yelp has not provided enough concrete evidence of his subjective motivations to prove otherwise,” Judge Thompson wrote.
But in a news release, Paxton seemed unfazed by Judge Thompson’s analysis of the case and called the ruling a “major victory.”
“Yelp cannot mislead and deceive the public simply because the company disagrees with our state’s laws,” Paxton said. “I’m pleased that the court agreed with Texas that Yelp’s federal lawsuit was a frivolous attempt to avoid enforcement for misleading consumers.”
Yelp filed notice on Friday that it would be appealing the ruling to the Ninth Circuit.
Yelp is represented by Adam Sieff, Ambika Kumar, Sara Fairchild and Thomas R. Burke of Davis Wright Tremaine and by its own James Daire.
Texas is represented by its own Alyssa Bixby-Lawson, Ryan Baasch and Scott A. Froman and by Eric Grant of Hicks Thomas.
The case number is 3:23-cv-04977.
Texas Supreme Court
Netflix Can’t Duck Defamation Suit
A Texas woman who alleges she was defamed in an episode of the Netflix series Dirty Money will be allowed to proceed with her lawsuit against the streaming giant.
The Texas Supreme Court on Jan. 26 denied a petition for review Netflix had lodged in November 2022. Netflix has indicated to the court it plans to seek rehearing.
Tonya Barina, whose great uncle is Charles Thrash, the millionaire owner of an auto repair business in San Antonio, alleges the Netflix show falsely accused her of exploiting Thrash, who has Alzheimer’s disease. Barina is the legal guardian of his estate.
The lawsuit accuses Netflix of knowingly excluding information from the episode that Thrash’s girlfriend, Laura Martinez, and her lawyer, Philip Ross, were sanctioned more than $225,000 by the guardianship court for their “intentional, knowing and outrageous conduct.”
Martinez, whose marriage to “a totally incapacitated” Thrash was later annulled by the court, was denied guardianship of Thrash, according to court records.
Chad Baruch, managing shareholder of Johnston Tobey Baruch in Dallas, who represents Barina, issued a statement praising the court’s decision.
“Tonya Barina deserves justice, and with the action of the Texas Supreme Court, now she is in a position to move forward and get it,” he said. “Everyone is in favor of free speech, but that’s not what this case is about. It’s about Ms. Barina’s allegation that Netflix made her the bad actor here when she’s not.”
Netflix has tried to get the suit dismissed under the Texas Citizens Participation Act, a state law meant to bring an early end to lawsuits that attempt to chill free speech rights.
Barina is also represented by Randy Johnston of Johnston Tobey Baruch, and San Antonio solo practitioners Carl J. Kolb and Glenn Deadman.
Netflix is represented by Katherine M. Bolger and Rachel F. Strom of Davis Wright Tremaine, Laura Lee Prather and Catherine Lewis Robb of Haynes Boone and Harriet O’Neill.
The case number is 22-0914.
Fifth Circuit Court of Appeals
Lockheed’s Win in Discrimination Suit Affirmed
A Black woman who was a contracts negotiation manager for Lockheed Martin in Fort Worth will not get to proceed with her lawsuit accusing the company of race and sex-based discrimination after a Fifth Circuit panel affirmed dismissal of the lawsuit in a Jan. 31 ruling.
Keishonna Harper filed notice of appeal with the Fifth Circuit in August 2022 after U.S. District Judge Reed O’Connor entered final judgment granting Lockheed a summary judgment win in June 2022.
Harper had alleged she was disrespected by white, male subordinate employees because she was Black; that she received “unjustified” feedback from an indirect supervisor who allegedly told her he wouldn’t be telling her about complaints he heard from subordinates if she were a man; that a supervisor told her she needed to be in the office more which she felt was commentary about her taking leave under the Family and Medical Leave Act; and that a subordinate made in inappropriate comment about her missing work on Martin Luther King Jr. Day.
Lockheed has said it suspended Harper without pay for two weeks and reassigned her to a new position without leadership responsibilities at the conclusion of two investigations: one into her allegedly inappropriate sexual comments in the workplace, and one into her leadership abilities.
After the suspension, Harper resigned, filed a complaint with the Equal Employment Opportunity Commission and later filed this suit.
The Fifth Circuit panel held “Harper failed to prove that she was treated less favorably than others similarly situated outside of her protected class or provide evidence that her employer took the adverse actions because of her protected-class status.”
Judges E. Grady Jolly, Leslie H. Southwick and Andrew S. Oldham sat on the panel.
Harper is represented by Brian Sanford and Elizabeth Sanford of Sanford Firm.
Lockheed is represented by Micah Prude, Catherine Barbaree and Stephen F. Fink of Holland & Knight.
The case number is 22-10787.