In this edition of Litigation Roundup, a jury in the Eastern District of Texas finds a Chinese company infringed eight patents held by Texas-based Atlas Global Technologies, the Fifth Circuit rejects the University of North Texas’ bid to end a professor’s First Amendment retaliation claim and a fired Texas prison guard who represented himself on appeal prevails in a discrimination case.
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U.S. District Court for the Eastern District of Texas
Jury Hands Texas-based Licensing Firm $37.5M in Wireless Network Patent Suit
A jury in Chief U.S. District Judge Rodney Gilstrap’s courtroom on Sept. 14 sided with Texas-based Atlas Global Technologies in a dispute with Chinese company TP-Link Technologies involving the alleged infringement of eight patents for wireless routers.
The jury heard five days of testimony and deliberated for just a few hours before determining TP-Link owed Atlas $37.48 million for the infringement of the patents for “WiFi 6” wireless routers, which are used to provide fast internet connections in high-density locations like offices, malls and apartment buildings.
Atlas filed suit in November 2021, according to court records, accusing TP-Link of selling products that infringed its patents through retailers including Target, Costco, Office Depot and Amazon. The jury awarded the full amount of damages Atlas requested.
Atlas is represented by Max Tribble, Joseph Grinstein, Kalpana Srinivasan, Alejandra Salinas and Alex Aiken of Susman Godfrey, Eric Enger, Mike Heim, Alden Harris and Blaine Larson from Heim, Payne & Chorush and Johnny Ward and Andrea Fair of Ward Smith & Hill.
TP-Link is represented by Kristopher L. Reed, Andrew Saul, Christopher P. Damitio, Cole Ramey, Edward Mayle, Kathleen Geyer, Kevin M. Bell and Steven Moore of Kilpatrick Townsend & Stockton and Andrew “Tom” Gorham, James Underwood and Melissa Smith of Gillam & Smith.
The case number is 2:21-cv-00430.
U.S. District Court for the Northern District of Texas
Southwest Beats Back 2 Putative Class Actions in 2 Days
U.S. District Judge Sam A. Lindsay recently determined that the Airline Deregulation Act preempted a proposed class action lawsuit against Southwest Airlines brought in response to the airlines’ decision to provide customers who canceled nonrefundable tickets with travel credits instead of refunds for TSA security fees.
The Sept. 8 ruling dismissed with prejudice the lawsuit lead plaintiff Aidan Bevacqua had filed in August 2022. Judge Lindsay found that in order to side with the plaintiffs and agree Southwest had breached a contract between the parties he would have to “enlarge the parties’ agreement by providing a remedy or right to plaintiffs that was not contemplated by the terms of the parties’ contract.”
On Sept. 7 in the Eastern District of Pennsylvania, U.S. District Judge John M. Gallagher issued an order denying class certification in a separate lawsuit lead plaintiff Adrian Bombin had filed in April 2020. Bombin had alleged similar claims as those brought by Bevacqua, but Judge Gallagher agreed with the airline that the plaintiff customers had waived their right to bring a class action lawsuit when they purchased their flights.
The plaintiffs bought their tickets through the Southwest app or website, which requires customers agree to a class action waiver to complete the purchase.
Bevacqua is represented by Stephen T. Blackburn of Dallas and Byron Goldstein, James Kan, Laura L. Ho and Mengfei Sun of Goldstein Borgen Dardarian & Ho.
Bombin is represented by Annick Persinger of Tycko & Zavareei.
The case numbers are 3:22-cv-01837 for the Northern District of Texas case and 5:20-cv-01883 for the Eastern District of Pennsylvania case.
Irving Man Cops to Role in $7M COVID-19 Testing Fraud
A 40-year-old Irving man has pleaded guilty to his role in duping insurers out of more than $7 million by submitting bogus claims for COVID-19 testing that was never performed.
Terrance Barnard, who was indicted in December, entered a guilty plea Sept. 14 to one count of conspiracy to commit health care fraud and one count of aggravated identity theft. The other alleged coconspirators — Connie Jo Clampitt, 52; William Paul Gray, 50; Donn Hogg, 37 — have each pleaded guilty for their roles in the fraud and are set to be sentenced in November.
Barnard faces up to seven years in prison and has agreed to forfeit $2.5 million, two homes, six vehicles and six luxury watches.
The government alleged Barnard, who was a contract lab technician at various clinics, and others used the identifying information of patients to submit about $30 million in bogus claims to insurance providers for testing, resulting in more than $7 million in reimbursements.
The government is represented by Renee M. Hunter, Chad E. Meacham and Dimitri Rocha of the U.S. attorney’s office in Dallas.
The case number is 3:22-cr-00469.
Dermatology Management Co. Pays $8.9M to Resolve FCA Case
Oliver Street Dermatology Management, which does business as U.S. Dermatology Partners, has entered into an agreement with the government to resolve self-reported claims of possible violations of the Stark law and the federal anti-kickback statute.
USDP is based in Texas and manages and operates dermatology practices, surgical centers and pathology labs across the country. The company on Sept. 12 agreed to pay $8.9 million, including $5.9 million in restitution, to resolve the claims without admitting liability.
In September 2021, USDP alerted the Department of Justice it believed its former senior managers had artificially inflated the purchase price of 11 dermatology practices to secure agreements with the providers there to refer services to USDP-affiliated entities as part of the scheme.
Some claims for those referred services were submitted to Medicare for payment, according to the government.
“Decisions about where medical specimens are analyzed should be made with the best interests of patients, not providers, in mind,” said U.S. Attorney Leigha Simonton. “We applaud this company for self-reporting its potential violations and cooperating with government investigators, allowing us to reach a swift settlement.”
Counsel and case information was not immediately available Monday.
Texas Supreme Court
Expert Report Found Sufficient to Revive Negligence Claim
The state’s high court on Friday issued an opinion that will give the family of Brandon Uriegas another chance to proceed with a negligence lawsuit against a residential care facility managed by Kenmar Residential HCS Services.
Uriegas, a nonverbal adult with severe intellectual and physical disabilities was living at the facility when he fell twice in September 2018 — once in the shower resulting in a head injury and once the next day while using the toilet.
Days after the falls, staff reported that Uriegas couldn’t stand and had a swollen foot. A hospital exam revealed he had a broken hip and femur and was hospitalized for 21 days.
This lawsuit, alleging negligence, gross negligence and negligent hiring and supervision, was subsequently filed by Uriegas’ family and accompanied by expert reports outlining the standard of care, how that standard wasn’t followed and how that deviation caused the injury as required by the Texas Medical Liability Act.
“While the two reports may lack sufficient specificity with respect to initial monitoring and fall protection, when viewed together, they sufficiently describe the standard of care for someone with Uriegas’s diagnoses as requiring a thorough evaluation for injuries after a fall and increased staff monitoring after a fall takes place to ensure that the patient does not attempt to use the toilet without assistance,” the court held.
A three-justice panel of the Seventh Court of Appeals issued a 2-1 ruling in March 2022 dismissing the claims after finding the reports insufficient with Chief Justice Brian Quinn, who said he would have allowed the suit to proceed, dissenting.
Williamson County District Judge Donna Gayle King had also ruled in August 2021 that the expert reports sufficient to avoid early dismissal.
Kenmar Residential is represented by Brian Rawson, Roy B. McKay, Holly Naehritz and Darrell L. Barger of Hartline Barger.
The Uriegas family is represented by William N. Haacker, Brent S. Phelps and Tej R. Paranjpe of Paranjpe Mahadass Ruemke.
The case number is 22-0317.
U.S. Court of Appeals for the Fifth Circuit
Pro Se Correctional Officer Gets Claims Against TDCJ Revived
A devout follower of the Hebrew Nation and former correctional officer for the Texas Department of Criminal Justice who was fired after refusing to cut his hair and beard will get another chance to bring his religious discrimination claims against his former employer.
Elimelech Shmi Hebrew, who is representing himself on appeal, took his case to the Fifth Circuit in September 2022, challenging a ruling from U.S. District Judge David Hittner that granted summary judgment to TDCJ. Judge Hittner found the institution had legitimate, nondiscriminatory reasons for firing Hebrew, namely “to promote the safety of officers and security of prisons.”
Citing the U.S. Supreme Court’s 2023 ruling in Groff v. DeJoy, the Fifth Circuit panel held that TDCJ failed to show accommodating Hebrew’s request to keep his long hair and beard constituted an “undue hardship.”
When Hebrew was hired by TDCJ in August 2019 he had for more than 20 years kept a vow to keep his hair and beard long, in accordance with his religion. He was given an ultimatum at the training academy: break his vow and cut his hair or leave the academy without pay while his request for an accommodation was pending.
He chose to leave and TDCJ denied his request for an accommodation a couple months later. When he declined to cut his hair, TDCJ terminated him, according to the opinion.
“With respect to Hebrew’s beard, TDCJ has presented no evidence that an officer with a long beard imposes an undue hardship,” the panel wrote.
The panel also found Hebrew’s religious practice “was more than a motivating factor in TDCJ’s termination decision.”
“In fact, it was the only factor that led to his discharge,” the 12-page opinion reads.
Judges Andrew S. Oldham, James L. Dennis and Kurt D. Engelhardt sat on the panel.
TDCJ is represented by Marlayna Ellis of the office of the attorney general.
The case number is 22-20517.
UNT’s Sovereign immunity Argument Rejected in Prof’s First Amendment Retaliation Suit
A music theory professor at the University of North Texas can proceed with his First Amendment retaliation claims against the nine members of the school’s board of regents after a panel recently determined the district court was correct in rejecting a sovereign immunity argument.
In a Sept. 15 opinion, the appellate court held that it was too early in the case to find “that Jackson impermissibly sued defendants protected by state sovereign immunity.” At this point, the court held, Jackson has alleged an ongoing violation of federal law.
“This, at the motion to dismiss stage, sovereign immunity does not bar Jackson’s First Amendment claims against the board defendants,” the panel wrote.
The regents filed notice of appeal in February 2022 after U.S. District Judge Amos L. Mazzant declined to grant UNT summary judgment on sovereign immunity and standing grounds.
Jackson is a leading expert on Austrian music theorist Heinrich Schenker. Trouble between Jackson and UNT’s regents began after he published an article in a university journal in 2020 defending Schenker against claims of racism. The article drew criticism from graduate students and faculty and prompted a formal investigation.
Jackson was eventually removed as editorial advisor of the journal and filed this First Amendment retaliation claim.
“The Board defendants argue that Jackson needed to allege specifically that they were personally and directly involved with the Journal or the panel investigation,” the panel wrote. “But all Jackson needs to allege under Article III is that his First Amendment injuries are ‘fairly traceable’ to the board defendants — not that the board defendants directly caused his injuries.”
Judges Andrew S. Oldham, James C. Ho and Jennifer Walker Elrod sat on the panel.
Jackson is represented by Ausin attorney and former Texas Solicitor General Jonathan F. Mitchell and Michael Thad Allen of Allen Harris in Connecticut.
The UNT board of regents is represented by Lanora C. Pettit and Beth Klusmann of the office of the attorney general.
The case number is 22-40059.