Free Speech, Due Process and Trial by Jury
In this edition of Litigation Roundup, the Fifth Circuit determines 2-1 that the city of Mineral Wells can’t be sued for breaching an “illegal” contract, the Texas Supreme Court is asked to answer two certified questions in a royalty dispute involving Hilcorp Energy, and an Austin company agrees to forfeit $4.5 million for misbranding dietary supplements.
For 13 years, the University of Texas Board of Regents and IDEXX Laboratories seemed pleased with a royalty deal they inked for certain diagnostic tests used by veterinarians. Then an auditor told UT IDEXX had been underpaying what it owed under the structure of the deal. That finding led to litigation and a $51 million award for UT that was later undone by the Fourteenth Court of Appeals in Houston. The Texas Supreme Court has agreed to determine whether the contract binding the parties is ambiguous.
The U.S. Court of Appeals for the Fifth Circuit is considering a new certification requirement about the use of generative artificial intelligence. While the proposed rule is thoughtful and well-intentioned, it is largely redundant of existing rules and may invite satellite litigation that interferes with legitimate use of AI to provide quality client service.
Two former clerks for Justice Sandra Day O’Connor — Justin Nelson of Susman Godfrey and Allyson Ho of Gibson, Dunn & Crutcher — spoke to The Lawbook about lasting memories and lessons learned from their time working alongside her at the U.S. Supreme Court. Justice O’Connor, who inspired many women to pursue careers in the law after becoming the first woman appointed to the high court, died Dec. 1 of complications related to dementia and a respiratory illness. Today, her funeral will take place.
The U.S. Court of Appeals for the Fifth Circuit has developed a reputation for divisiveness among its members. But Thursday, Judge Don Willett, Judge Carolyn King and Judge Dana Douglas — three jurists with widely differing judicial leanings — issued a unanimous opinion that highlighted a major injustice, publicly sought a reversal of precedent by the full Fifth Circuit and demonstrated judicial restraint. The case is the story of Erma Wilson, who was falsely accused and wrongly convicted of cocaine possession 22 years ago in Midland.
“Erma Wilson placed her faith in the justice system, trusting she would get due process and a fair trial," Judge Willett wrote. “Wilson’s faith was misplaced. In Wilson’s trial — and in hundreds of others in Midland County spanning decades — bedrock judicial norms were dishonored.”
In a significant legal blow to victims of Winter Storm Uri, large power generators in Texas scored a decisive multibillion-dollar defense victory Thursday when a Houston appeals court ruled that wrongful death, personal injury and property damage claims against the generators have “no basis in law or fact.”A three-judge panel of the First Court of Appeals in Houston ruled that “Texas does not currently recognize a legal duty owed by wholesale power generators to retail customer s to provide continuous electricity to the electric grid, and ultimately to the retail customers.”
The Fifth Circuit is the latest court to address potential misuse of generative artificial intelligence. The court is seeking comments on an amendment to Rule 32.3 that would require litigants to certify that they reviewed and verified any GenAI-generated content in their filings. Failure to comply could result in striking the document or sanctions. The Fifth Circuit is the first federal appeals court to consider a GenAI-specific rule. But its proposal comes on the heels of a flurry of lower court standing orders aimed at addressing similar concerns. These issues make it essential for lawyers to stay informed about developments in GenAI technology and ensure they are complying with applicable court rules. Indeed, the only thing that is certain in this area is that there will continue to be change.
More U.S. senators voted Monday to confirm Judge Irma Ramirez to the U.S. Court of Appeals for the Fifth Circuit than any of President Biden's previous 37 appellate court nominees. The senate confirmed Judge Ramirez, currently a U.S. magistrate judge in Dallas, by a vote of 80-12. She is the first Latina judge in the 132-year history of the New Orleans-based court. “It is an historic moment to finally have a Hispanic woman on the court — a long time coming,” said Gregg Costa, the Fifth Circuit judge who retired last year and who Judge Ramirez is replacing. “The first few weeks are a whirlwind. She will need to meet and get to know her new fellow Fifth Circuit judges, hire four law clerks, set up her office and get up to speed on the court’s caseload. It is a steep learning curve.”
The federal appellate court had asked the Texas Supreme Court to answer two questions clarifying how Texas Civil Practice & Remedies Code § 16.064 applies to the claims of former United Airlines flight attendants, Marvin Sanders and Matthew Sodrok, who say they were injured when a smoke detector activated — despite the absence of smoke or fire on board — at such a high volume that it burst their ear drums, caused their ears to bleed and left them with permanent hearing loss. The justices’ answers revived the lawsuit against The Boeing Company and two companies that provided parts and maintenance for the allegedly defective smoke detector.
An amici army 40 strong, led by dating app Bumble Inc. and joined by Match Group, SXSW, Amalgamated Bank, Central Presbyterian Church, a handful of boutique law firms, doctors and hospitality companies, filed their brief with the Texas Supreme Court Monday, about a week before the court is slated to hear oral arguments in Texas v. Zurawski. But the business community is far from the only voice trying to persuade the Texas Supreme Court. A group of 20 states filed an amicus brief, as did a group of 90 Texas legislators and a handful of national women’s rights organizations.
© Copyright 2025 The Texas Lawbook
The content on this website is protected under federal Copyright laws. Any use without the consent of The Texas Lawbook is prohibited.