In this edition of Litigation Roundup, Southwest Airlines attorneys are denied a stay of a sanctions order that they undergo religious liberty training, the Texas Supreme Court rejects Jerry Jones’ request to end an assault suit brought by a woman he allegedly forcibly kissed at AT&T Stadium and the Fifth Circuit revives a suit against the Food and Drug Administration over tweets about ivermectin.
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Western District of Texas
Wells Fargo Hires McGuireWoods, Moves to Arbitrate Hispanic Discrimination Class Action
Wells Fargo and a class of plaintiffs accusing the bank of discriminating against Hispanic employees based on their ethnicity filed a joint stipulation Aug. 31 asking the court to compel arbitration in the dispute.
The class, led by Raul Garcia, comprises bilingual mortgage sales consultants who allege they were repeatedly denied entrance into a pilot program that guaranteed mortgage consultants commissions regardless of actual sales, while consultants who spoke only English were allowed to participate.
The joint stipulation states that all class members signed an arbitration agreement when they were hired that waived their right “to initiate or participate in a class, collective or representative action.”
“The arbitration plaintiffs and Wells Fargo agree that the [mutual arbitration agreement] constitutes a valid arbitration agreement and that the arbitration plaintiffs’ claims arise out of their employment with Wells Fargo and fall squarely under the terms of the MAA,” the stipulation reads. “Further, the arbitration plaintiffs and Wells Fargo agree that under the terms of the MAA, the arbitration plaintiffs’ claims should proceed to arbitration on an individual basis.”
The stipulation notes that Wells Fargo cannot locate a signed arbitration agreement for one plaintiff, Juan Padilla, who has not consented to arbitration, so his claim will proceed in the district court.
The case was filed June 30 and has been assigned to U.S. District Judge Orlando L. Garcia.
Wells Fargo is represented by Meghaan C. Madriz and Yasser A. Madriz of McGuireWoods in Houston.
The plaintiffs are represented by Lawrence Morales II and Allison Hartry of The Morales Law Firm in San Antonio.
The case number is 5:23-cv-00825.
Northern District of Texas
SWA Attorneys Have Sept. 26 Deadline for ‘Religious Liberty’ Training
Three attorneys for Southwest Airlines won’t get to hit pause on a sanctions order that requires they undergo religious liberty training after U.S. District Judge Brantley Starr issued an Aug. 31 order holding the lawyers “can complain — but they must comply.”
Judge Starr’s order came as an administrative stay that was entered in the case while the lawyers appealed the sanction to the Fifth Circuit expired. Judge Starr has ordered three Southwest attorneys — Kerrie Forbes, Kevin Minchey and Chris Maberry — to undergo religious liberty training from The Alliance Defending Freedom.
A jury in 2022 had sided with Charlene Carter, a flight attendant who alleged she was discriminated against on the basis of her religion after sending anti-abortion messages to her union president, including one calling her “despicable” for participating in the Women’s March in D.C.
Judge Starr on Aug. 7 granted Carter’s motion for sanctions against Southwest, agreeing the legal team had failed to notify flight attendants that the law forbids employment discrimination on the basis of religion.
“It’s hard to see how Southwest could have violated the notice requirement more,” Judge Starr wrote. “… In the universe we live in — the one where words mean something — Southwest’s notice didn’t come close to complying with the Court’s order.”
Southwest’s directive to flight attendants said the court had ordered the airline to inform its employees that it “does not discriminate” against employees on the basis of religion and sent a separate memo to flight attendants “stating that its employees must abide by the types of policies over which Southwest fired Carter and that it believed its firing of Carter was justified because of those policies.”
“Religious liberty training won’t harm Southwest,” Judge Starr wrote in his Aug. 31 ruling. “But staying it will harm the flight attendants who still don’t know the truth about the injunction that protects them.”
The airline has an Oct. 12 deadline to file its brief with the Fifth Circuit.
Carter is represented by Matthew B. Gilliam of the National Right to Work Legal Defense Foundation and Bobby G. Pryor and Matthew D. Hill of Pryor & Bruce in Rockwall.
The trial court case number is 3:17-cv-02278 and the case number on appeal is 23-10836.
Eastern District of Texas
Air Ambulance Cos. Get Win in ‘No Surprises Act’ Suit
U.S. District Judge Jeremy D. Kernodle recently sided with two Texas-based air ambulance companies — LifeNet Inc. and East Texas Air One — in their challenge to certain provision of the No Surprises Act that regulated how much insurers compensate emergency air carriers.
The companies argued that a portion of the rule that extended a deadline for insurers to make an initial payment determination and a regulation that spelled out how to calculate the median rate the insurer would have paid for in-network services, known as the qualifying payment amount, were unlawful.
Judge Kernodle agreed and signed the final judgment Aug. 24, holding “the seriousness of the deficiencies weighs heavily in favor of vacatur” and that, short of vacatur, the Department of Health and Human Services could do “nothing” to “rehabilitate or justify the challenged portions of the rule as written.”
Susman Godfrey partner Steven Shepard, who represented the companies, issued a statement praising the court’s ruling.
“The court has made an important ruling that takes significant steps toward ensuring these providers are adequately compensated for these critical services,” he said.
DHS is represented by Anna L. Deffebach of the Department of Justice.
The case number is 6:22-cv-00450.
Texas Supreme Court
Jerry Jones Loses Bid to End Assault Suit
The Texas Supreme Court issued an order Sept. 1 denying a petition for review from Jerry Jones and the Dallas Cowboys Football Club seeking dismissal of a lawsuit brought by a woman who alleges Jones forcibly kissed her on the mouth and grabbed her without consent at AT&T Stadium.
The ruling means that the lawsuit will return to Dallas County District Judge Aiesha Redmond, who had originally tossed the lawsuit in February 2022 by granting a motion to dismiss. The Fifth Court of Appeals determined the lawsuit, filed in September 2022 by a woman identified in pleadings as J.G., should have been allowed to proceed because J.G. had made a good faith attempt to amend her pleadings — including by identifying herself to defense counsel — before the motion to dismiss was granted.
J.G.’s suit brings claims for assault and battery, intentional infliction of emotional distress, negligence and gross negligence stemming from an alleged encounter with Jones in September 2018 in the Tom Landry Room.
On appeal, Jones argued the lower appellate court disregarded statutory pleading requirements and “summarily redefined what constitutes good faith compliance” by reviving J.G.’s lawsuit. State law requires that the plaintiff include her name, residence and last three digits of her social security number and last three digits of her driver’s license number to proceed with her suit, Jones argued.
In four petitions, J.G. never included the statutorily required information, Jones argued.
Jones is represented by Levi G. McCathern II, Jesse L. Cromwell and Aaron Dekle of McCathern Shokouhi Evans Grinke.
J.G. is represented by Thomas D. Bowers III of Irving and Samuel C. Cole of Victoria.
The case number on appeal is 23-0274 and the trial court case number is DC-20-13127.
U.S. Court of Appeals for the Fifth Circuit
MDs’ Suit Against FDA Over Ivermectin Tweets is Revived
A lawsuit brought by doctors accusing the Food and Drug Administration of interfering with their medical practices via a series of pandemic-era tweets the agency sent out advising readers “You are not a horse” has been partially revived.
The messages were sent out by the government agency in response to reports that some people were taking “the animal version of a drug called ivermectin” to treat their symptoms, but the messages did not mention that the medication also came in a human form.
The doctors who brought this lawsuit — Robert L. Apter, Mary Talley Bowden and Paul E. Marik — prescribed the human version of the medication to “thousands of their patients” and allege the FDA’s messages violated both the FDA’s enabling act and the Administrative Procedure Act.
U.S. District Judge Jeffrey Brown had dismissed the lawsuit in June 2022, finding it was barred by sovereign immunity, and the doctors filed notice of appeal in December.
In an opinion issued Sept. 1, the Fifth Circuit held that, while the FDA does have authority to “inform, announce and apprise,” it doesn’t have authority to “endorse, denounce, or advise.”
“The doctors have plausibly alleged that FDA’s posts fell on the wrong side of the line between telling about and telling to,” the panel held. “As such, the Doctors can use the APA to assert their ultra vires claims against the agencies and the officials. Even tweet-sized doses of personalized medical advice are beyond FDA’s statutory authority.”
Judges Don R. Willett, Edith Brown Clement and Jennifer Walker Elrod sat on the panel.
The doctors are represented by Jared Kelson and R. Trent McCotter of Boyden Gray in Washington, D.C.
The FDA is represented by Ashley Honold, Oliver McDonald and Daniel Tenny of the U.S. Department of Justice in Washington, D.C.
The case number is 22-40802.
Economist Gets Second Chance to Convince Judge Gilstrap to Unseal Health Care Pricing Docs
A health care economist who is challenging U.S. District Judge Rodney Gilstrap’s decision denying his request to intervene in a lawsuit to challenge the sealing of certain health care pricing documents will get another chance to argue his case, following an Aug. 31 ruling from the Fifth Circuit.
Loren Adler is attempting to intervene in a qui tam lawsuit that alleged TeamHealth, a private-equity owned healthcare entity, routinely billed for nonexistent doctor examinations and services. The case settled for $48 million shortly before trial in July 2021.
Adler is a health care economist and has argued that the documents, which are under seal, would help inform his research on how providers bill for services and are also of interest to the general public. Judge Gilstrap found Adler lacked standing, waited too long to lodge his request and also failed to show “a claim of defense that shares with the main action a common question of law or fact.”
“Although courts are afforded great discretion in deciding intervention pursuant to Federal Rule of Civil Procedure 24(b), the district court’s reasoning was premised on several significant errors,” the panel wrote in reviving Adler’s fight.
The panel found Adler did have standing to file the motion to intervene but sent the case back to Judge Gilstrap “for reconsideration of timeliness and other unexplored reasons for denial, if any.”
“It is well established that the length of time to file is measured from the moment that the prospective intervenor knew that his interests would ‘no longer be protected,’” the panel wrote. “Yet, the district court instead considered Adler’s delay from the time of the case’s unsealing and Adler’s general awareness of the case based on his activity online, placing Adler’s delay at ‘approximately 1.5 to 2.5 years.’”
Judges Jacques L. Wiener Jr., James E. Graves Jr. and Dana M. Douglas sat on the panel.
Adler is represented by Ellen L. Noble and Leah Marie Nicholls of Public Justice in Washington, D.C., and Martin Woodward of Kitner Woodward in Dallas.
The case number is 22-40707.