In this edition of Litigation Roundup, a short-lived trademark infringement suit over the name of a Dallas restaurant settles, a trade secrets dispute marches toward a jury trial in Fort Bend County and a judge in Midland gets chided for a procedural misstep in granting a change of venue request.
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Fort Bend County District Court
Jury Trial in Trade Secrets, Conspiracy Case to Begin
A settlement was reached with one party Monday morning, but opening statements are slated to come Wednesday in a jury trial where an energy industry supply company alleges a group of former employees conspired to steal its proprietary information to launch a competing company.
DNOW, which does business as DistributionNOW, alleges in a lawsuit that it purchased the intellectual property of another company, Odessa Pumps for $170 million, but that a group of former employees have stolen that information to start a new company, Permian Pump & Valve, which is a direct competitor.
The plaintiffs plan to ask the jury for about $10 million in actual damages, $3 million in attorney fees and $10 million in punitive damages. Permian Pump & Valve and former DNOW employee Clayton Kenworthy, represented by John Kim of The Kim Law Firm, reached a settlement Monday morning.
The lawsuit, assigned to the 434th District Court, was filed in June 2021 according to court documents.
The plaintiffs are represented by S. Scott West and Maddison M. West of The West Law Firm, Christopher E. Moore, Scott McLaughlin and Brooke Jones of Ogletree Deakins Nash Smoak & Stewart and John Zavitsanos, Jason S. McManis, Taylor L. Freeman, Shawn Bates and Louis Liao of Ahmad Zavitsanos & Mensing.
Former DNOW executive vice president Toby Eoff is represented by Mark Levine of Weycer Kaplan Pulaski & Zuber. The other defendants are represented by Rachel Powitzky Steely and Jessica Glatzer Mason of Foley & Lardner.
The case number is 22-DVC-294327.
Harris County District Court
Abraham Watkins Says Ex-Associate Poached Clients, Took Files
A temporary injunction hearing has been scheduled for Dec. 5 in the lawsuit plaintiffs firm Abraham Watkins Nichols Agosto Aziz & Stogner have brought against a former associate, Edward Festeryga.
The law firm filed suit on Nov. 21, seeking up to $1 million in damages from Festeryga who the firm alleges used confidential information to wrongly solicit clients to retain his new firm. The lawsuit brings claims for breach of fiduciary duty, tortious interference with contract and conversion.
Festeryga, who is now practicing at The Ammons Law Firm according to the state bar’s website, was hired by Abraham Watkins in January 2021. According to the lawsuit, firm partner Benny Agosto discovered in September that Festeryga told a firm client he was moving to a new firm and that the client “needed to come with him to the new law firm.”
Abraham Watkins alleges Festeryga, who was terminated immediately after allegedly telling Agosto he had been contacting firm clients, has also been saying “disparaging and untrue” things about the law firm.
“He has asserted to third parties that AW has stiffed him on monies that he said were due to him,” the suit alleges. “My. Festeryga specified that he was not paid bonuses. However, Mr. Festeryga was fully paid his salary and bonuses were clearly identified as being discretionary.”
Guillermo Alarcon of Armbrust & Brown, who represents Festeryga, told The Texas Lawbook in an email that his client “did not solicit a single AW client” and that Festeryga is entitled to keep copies of client files he worked on as an attorney under state ethics rules.
“The reality of this case is that it is an intimidation tactic by Mr. Festeryga’s former firm because Mr. Festeryga had the temerity to demand the bonuses he rightfully earned,” Alarcon said.
The case has been assigned to Harris County District Judge Kristen Hawkins.
Abraham Watkins is represented by its own Muhammad S. Aziz and Dale Jefferson and Raul H. Sauzo of Martin Disiere Jefferson & Wisdom.
The case number is 2022-76196.
Dallas County District Court
Ex-Clients Ends Malpractice Suit Against Aviation Lawyer
A legal malpractice lawsuit filed against Ladd Sanger and his firm Slack Davis Sanger has been voluntarily dropped by former client Andra Cobb, who sued him in January, The Lawbook recently learned.
Cobb, the sole survivor of a 2018 helicopter crash, sued Sanger alleging he wasn’t entitled to a contingency fee from her multimillion-dollar settlement because of his “grossly inadequate representation and often misguided legal advice.”
Sanger filed counterclaims against attorney Robert Bragalone, bringing him into the suit on May 11. Cobb filed her notice of nonsuit the following day, according to court documents. In the counterclaim, Sanger alleged he was terminated by Cobb “inexplicably and without explanation” in a “single-line email.”
“Cross-plaintiffs only recently learned the real reason Cobb terminated them,” the lawsuit alleges. “Another lawyer, Bragalone, and his firm had wrongfully advised Cobb that cross-plaintiffs had provided her with faulty legal advice. This was, and is, untrue and was clearly nothing more than an improper attempt to convince Cobb to terminate cross-plaintiffs so that she would hire cross-defendant.”
Cobb’s longtime companion, Charles Burnett III, and her father Paul were among the five who died when Burnett’s Bell Huey helicopter crashed on a remote mesa in northern New Mexico in January 2018. The group was headed to a birthday party Burnett was hosting at his ranch in Folsom, New Mexico.
Pilot J.C. Dodd, and passengers Roy and Heather Bennett also died. Roy Bennett was a pro-democracy opponent of Zimbabwe’s authoritarian leader Robert Mugabe.
According to court documents, the case was headed for an April 18, 2023 jury trial before Judge Staci Williams. Judge Williams signed Cobb’s notice of nonsuit without prejudice on Aug. 31.
Cobb is represented by Brian Hail of Kane Russell Coleman Logan.
The case number is DC-22-00965.
Northern District of Texas
Italian Food Fight Over Carbone Name Settles
Dallas Italian restaurant Carbone’s Fine Foods and Wines has settled a lawsuit it filed over the summer against The Major Food Group and Carbone Restaurant — an outpost of a New York-originated chain that opened two miles from the restaurant it has operated in the Design District for a decade.
Carbone’s filed the trademark infringement lawsuit on June 1, according to court documents, and the parties filed a joint stipulation voluntarily dismissing the claims on Nov. 18. The document does not detail the terms of the settlement agreement that ended the dispute.
The case was assigned to U.S. District Judge Ada Brown.
Carbone’s is represented by Michael Yarbrough, Jason Blackstone, Adam M. Korn Jennifer A. Mauri and Richard S. Kim of Michelman & Robinson.
Carbone is represented by John T. Cox III, Howard S. Hogan and Rachael Kathleen Jensen of Gibson Dunn & Crutcher and Jeremy A. Fielding, Jonathan David Kelley and Ruben Alan Garcia of Kirkland & Ellis.
The case number is 3:22-cv-01184.
Eleventh Court of Appeals
Judge Pinged for Procedural Misstep
In a lawsuit over the alleged breach of a purchase and sale agreement between the members of a joint venture, a Texas appellate panel recently chided a Midland County district court judge for improperly granting a motion to change venue.
In an opinion issued Nov. 21, a panel held that Judge Elizabeth Byer Leonard violated Texas Rule of Civil Procedure 87 when she granted the motion to transfer the lawsuit to Harris County without the party that was seeking the change asking for a hearing.
Rino-K&K Compression had filed the lawsuit on June 1, according to the ruling, and Judge Leonard granted the July 1 motion to transfer venue, filed by Compressor Management and Global Compressor on July 22.
“We have concluded that Judge Leonard clearly abused her discretion when she signed the transfer order without following the procedures required by Rule 87,” the court wrote. “Equally troubling is that the Midland County district clerk failed to provide timely notice of the signed transfer order to relator, which further precluded Relator from filing a timely challenge to the trial court’s erroneous and voidable order.”
Chief Justice John M. Bailey and Justices W. Stacy Trotter and Bruce Williams sat on the panel.
Rino-K&K Compression is represented by Alex E. Reynolds and Murray A. Crutcher III of Atkins Hollman Jones Peacock Lewis & Lyon.
Compressor Management and Global Compressor are represented by Jad J. Stepp, Dennis J. Sullivan and Lindsey V. Ott of Stepp & Sullivan and Stephen A. Mendel of The Mendel Law Firm.
The case number is 11-22-00279-CV.