In this week’s edition of Litigation Roundup, a settlement nears in a patent dispute over Formula One racing safety technology, a Texas lawyer takes his fight with a California wine entrepreneur to the Texas Supreme Court and a former NFL Pro Bowl cornerback blames a Houston-area clinic for a failed drug test.
Have a development in a case that you think is worthy of a mention in the Litigation Roundup? Email us at email@example.com.
Harris County District Court
Former NFL Cornerback Says Doc Responsible for Failed PED Test
Arlandus “A.J.” Bouye, a former Pro Bowl cornerback who at one time played for the Houston Texans, has sued a clinic and its staff for allegedly injecting him with substances that caused him to fail a test for performance enhancing drugs.
Bouye filed suit on Oct. 3 against Edge Weight Loss & Fatigue and its staff for what he called a “harebrained scheme” to cover up the fact that they had injected him with banned substances, namely testosterone, by telling him they were vitamins and legal peptides.
Bouye said the staff also injected him with an estrogen blocker “to avoid detection” on drug tests.
“Not only was the scheme rudimentary, it was a violation of the drug testing protocols required of professional athletes,” he wrote. “The defendants hid all of this information from the client athletes.”
It was Bouye’s personal trainer, former Olympic sprinter Isa Phillips, who referred him to the Edge Clinic in 2020, according to the lawsuit, and in October of that year he was informed by the NFL that he tested positive for PEDs. Phillips is also named as a defendant in the suit.
The lawsuit is seeking more than $1 million in damages and has been assigned to Harris County District Judge Lauren Reeder.
Bouye is represented by Tommy R. Hastings of Hastings Law Firm. The clinic hadn’t retained counsel as of Monday.
The cause number is 2022-64241.
Northern District of Texas
BuzzBallz Brings TM Suit Against Buzz Tea
Haynes and Boone attorneys Jason P. Bloom and Michael Joseph Lambert are representing a North Texas-based manufacturer and retailer of canned cocktails in a trademark infringement suit against the makers of a product called Buzz Tea.
BuzzBallz, which since 2009 has made ready-to-drink cocktails in distinctive spherical containers, is accusing Brew-Alliance and Geloso Beverage Group, the makers of Buzz Tea, of infringing its trademark.
Buzz Tea came into the market in February 2022, according to the lawsuit, and the product “uses the word ‘Buzz’ as the primary feature of the infringing mark, and repeatedly highlight the term throughout their marketing materials, including with phrases such as ‘What’s the Buzz?,’ ‘THE BUZZ IS REAL,’ ‘START BUZZING!,’ and ‘keep up with the latest Buzz.’”
BuzzBallz alleges the product is causing confusion in the marketplace through similarities in the color schemes, block lettering and flavor choices offered.
The lawsuit before U.S. District Judge A. Joe Fish was filed Oct. 3 and is seeking unspecified damages.
Brew-Alliance and Geloso Beverage Group haven’t yet retained counsel.
The cause number is 3:22-cv-02187.
Western District of Texas
Eve-of-Trial Settlement Solidifies in F1 Patent Case
Several parties litigating over safety technology used in Formula One racing are getting close to finalizing a settlement, according to a joint motion filed Oct. 5.
The parties were supposed to begin a patent jury trial Oct. 6, but according to the Oct. 5 filing, they “now have a written settlement agreement in place and are awaiting on a number of international signatures.” They asked U.S. District Judge Alan Albright to stay all case deadlines in light of the pending settlement, a request the judge granted the following day.
Filed in 2020, the case pitted inventor Jens Nygaard against a number of Formula One entities and holding company Delta Topco, governing motoring organization Federation Internationale de l’Automobile (FIA), racing team Red Bull Racing and Red Bull Technology.
The patented technology at issue involves the “Halo” and “Aeroscreen” devices used in Formula One race cars that are designed to protect drivers’ heads and necks during any accidents while racing. According to Nygaard’s lawsuit, Charles LeClerc (who was dismissed early from the lawsuit) was the first Formula One driver to be spared from death or serious injury because of the Halo technology.
According to their motion, the parties anticipate finalizing the settlement (including payment) and filing dismissal motions by Nov. 10.
Nygaard’s lawyers are Ahmed Davis, Bailey Benedict, Jacqueline Moran, Julianne Campbell, Nicholas Gallo, Brian Strand, W. Thomas Jacks and Danielle Healey of Fish & Richardson’s Houston, Austin, Atlanta and Washington, D.C., offices.
The FIA’s lawyers are Claudia Frost, Jeffrey Johnson, Travis Jensen, Jeffrey Quilici and Ryan Wooten of Orrick, Herrington & Sutcliffe’s Houston, Austin and Menlo Park, California offices as well as Austin lawyer Darryl Adams of Slayden Grubert Beard.
Red Bull’s lawyers are New York lawyers Edgar Huag, Jason Kanter, Mark Chapman and Roman Khasidov of Huag Partners and Tyler lawyer Deron Dacus of The Dacus Firm.
The cause number is 6:20-cv-00234.
Ninth Court of Appeals
H-E-B Can’t End Biz Spat Under Free Speech Law
H-E-B must return to the trial court in a business disparagement and defamation lawsuit brought against it by Maverick International after a Texas appellate panel recently declined to dismiss the suit under the Texas Citizens Participation Act.
The fight stems from a soured deal to purchase six million canisters of Maverick’s disinfecting wipes during the height of the pandemic, according to the opinion. H-E-B refused to purchase the entirety of the order after alleging Maverick breached the deal by failing to meet delivery deadlines and by making misrepresentations about Environmental Protection Agency-mandated labeling requirements on the product.
Maverick then filed a breach of contract lawsuit, and expanded it to add claims for business disparagement and defamation after H-E-B representatives made certain statements in a press release sent to a San Antonio Express-News reporter who was writing about the dispute.
The appellate court determined that H-E-B’s speech that led to the defamation and disparagement claims was commercial speech, directed at its customers, and therefore wasn’t a matter of public concern, and didn’t fall under the TCPA umbrella.
“Besides, H-E-B has other remedies to obtain a dismissal of Maverick’s defamation and disparagement claims if those claims are without merit,” the panel held.
Justices Hollis Horton, Charles Kreger and Chief Justice Scott Golemon sat on the panel that delivered the ruling Oct. 6.
Maverick is represented by John Werner of Reaud Morgan & Quinn.
The cause number is 09-21-00311-CV.
Fourteenth Court of Appeals
Harris County Judge Chided For Delayed Ruling
Harris County District Judge C. Elliott Thornton has been ordered to set a timely hearing on a motion to dismiss defamation and business disparagement claims that arose in a dispute over the probate of an estate.
Daniel Dror had asked for a hearing on the motion to dismiss the claims brought against him pursuant to the Texas Citizens Participation Act, which mandates early dismissal of lawsuits found to be baseless.
Dror filed the TCPA dismissal motion on July 25 and contacted the court on Aug. 11, 12 and 15 trying to get a hearing set on the matter, according to the opinion. On Aug. 15 the court’s clerk wrote that a hearing date of Jan. 11, 2023 was available.
He let the court know that wouldn’t comply with the mandatory requirement under the TCPA that dismissal motions be heard within 60 days and was told he would need to file an emergency motion for a hearing to get an earlier setting.
The request for an emergency hearing was denied by Judge Thornton on Aug. 23, and Dror filed a petition for writ of mandamus on Sept. 7.
“We conclude that the record before the court in this proceeding establishes that relator made reasonable efforts to obtain a hearing, but was unsuccessful in obtaining a timely date from the trial court,” the panel held on Oct. 5. “Thus, we conclude the trial court abused its discretion by refusing to set and conduct a hearing on relator’s TCPA motion to dismiss within the applicable statutory deadlines.”
Justices Charles A. Spain, Margaret “Meg” Poissant and Randy Wilson sat on the panel.
Dror is represented by of Michael C. Falick and Christopher W. Rothfelder of Rothfelder & Falick.
The cause number is 14-22-00646-CV.
Texas Supreme Court
Justices Asked To Weigh In On Napa Winery Ownership Fight
The Texas Supreme Court has been asked to decide whether a California wine entrepreneur can be hauled into Texas courts in a fight over the ownership of a “prestigious Napa wine business.”
Texas attorney Randy Roach sued California wine entrepreneur Fred Schrader and Constellation Brands alleging conversion, money had and received, breach of fiduciary duty, unjust enrichment, fraud and conspiracy.
Harris County District Judge Scot Dollinger denied Schrader’s special appearance, on appeal a panel determined Texas courts have jurisdiction to hear Roach’s fraud claims, but didn’t have authority to hear his other claims against Schrader, according to court documents.
In the Oct. 3 petition for review, Roach argues Schrader availed himself of Texas courts by targeting Texas investors, including Roach who invested $135,000, for his wine business. Roach told the court Schrader sought out Texas investors, believing them to be “big risktakers” and subsequently decided “to keep the resulting, wildly successful Napa wine business for himself.”
Roach alleges he had a nearly 20-year business relationship with Schrader during which he served as a conduit to sell wine in Texas, further evidence of his ties to Texas.
“This case presents the analogous, recurring question of whether the targeted solicitation of Texas investors likewise subjects a party to jurisdiction,” Roach told the court. “By answering ‘no,’ the court of appeals not only disregarded this court’s prior guidance, it also created a fundamental inconsistency in Texas jurisprudence, taking Texas out of the national mainstream.”
Roach is represented by Robert B. Dubose of Alexander Dubose Jefferson and John W. Newton III, Manuel López and Robert M. Roach Jr. of Roach Newton.
Schrader is represented by Casey Low of Pillsbury Winthrop Shaw Pittman.
The cause number is 22-0636.
Editor’s Note: Natalie Posgate contributed to this report.