Vanessa D. Gilmore

This case involved a class of oil, gas, and chemical inspectors suing their employer, Inspectorate America Corporation, under the Fair Labor Standards Act for improper use of the fluctuating workweek method to calculate overtime pay. The court granted partial summary judgment to the plaintiffs, finding that the employer's payment practices violated FLSA requirements for the fluctuating workweek method because salary deductions were made for certain absences and the first 90 days of employment, and that the plaintiffs were entitled to liquidated damages. The court granted partial summary judgment to the defendant on the method for calculating the regular hourly rate for damages and on the statute of limitations, applying the two-year period rather than three because the violations were not willful. The core reasoning was that the employer's deduction policies and premium structures did not satisfy the fixed-salary prerequisites for the fluctuating workweek method, but audits by the Department of Labor and lack of evidence of evasion meant the employer did not act willfully.

labor & employmentbusiness & regulatory

The case involved a lawsuit by the daughter of a KBR contractor killed by U.S. military friendly fire in Iraq, alleging negligence, wrongful death, fraud, intentional infliction of emotional distress, and related claims based on the company's failure to provide proper instructions and its alleged misrepresentations about the cause of death. The court granted in part and denied in part the defendants' motion to dismiss under Rule 12(b)(1), holding that most claims were preempted by the Defense Base Act, which provides the exclusive remedy for accidental job-related injuries to covered contractors working overseas. The court reasoned that the DBA barred tort claims flowing from the covered accidental death but did not bar the IIED claim, which arose from a separate direct injury to the plaintiff caused by the post-death misrepresentations. The court therefore dismissed the negligence, wrongful death, fraud, survivorship, and conspiracy claims but allowed the intentional infliction of emotional distress claim to proceed.

torts & liabilityfederal powerlabor & employment

In United States v. Kim, the defendant, a former employee of an energy company, moved to suppress evidence obtained from a search of his residence pursuant to a warrant authorizing seizure of items related to alleged unauthorized computer access under 18 U.S.C. § 1030. The warrant was based on IP address logs linking intrusion attempts to the defendant's address after his suspension. During the search, agents discovered encrypted folders on a computer and spent months decrypting them, uncovering what appeared to be child pornography, though no evidence of computer intrusion was found on that device and the folders predated the alleged intrusions. The court granted the motion to suppress, holding that the agents exceeded the warrant's scope by searching the encrypted folders for child pornography rather than evidence of computer intrusion, as the affidavit and timeline did not support such a search and the magistrate had explicitly denied a related request.

criminal lawprocedure

The case involved plaintiffs Rin Tin Tin, Inc. and Daphne Hereford, who own U.S. trademarks and service marks for "Rin Tin Tin" in connection with their German Shepherd dog breeding program, museum, and related services, suing defendants First Look Studios and others for trademark infringement, dilution, and unfair competition under the Lanham Act and Texas law. The claims arose after defendants released a DVD movie titled "Finding Rin Tin Tin: The Adventure Continues" about the historical dog without plaintiffs' permission. The court granted defendants' motion for summary judgment, holding that they established the fair use defense because the title descriptively identified the film's subject matter about the real Rin Tin Tin, was used in good faith with proper attribution to the film's producers, and was protected by the First Amendment from both federal and state claims. The court further found no material factual disputes on the fair use elements and that the First Amendment defense extended to bar the state-law claims as well.

business & regulatoryfree speech

In Cushman v. GC Services, LP, plaintiff Naomi Cushman sued defendant GC Services, a debt collector, alleging violations of the federal Fair Debt Collection Practices Act, the Texas Debt Collection Practices Act (TDCPA), and the Texas Deceptive Trade Practices Act (DTPA) based on calls and communications regarding her unpaid American Express credit card debt, including claims of aggressive tactics, threats of wage garnishment, and employer contact. The court considered the defendant's motion for partial summary judgment on the DTPA and TDCPA claims. It granted the motion as to the DTPA claim, ruling that Cushman lacked standing because she did not qualify as a 'consumer' under the DTPA definition tied to the purchase or lease of goods or services, and the TDCPA's tie-in provision did not exempt that requirement as confirmed by Texas Supreme Court precedent like Crown Life Ins. Co. v. Casteel. The court denied the motion as to the TDCPA claim, allowing it to proceed.

business & regulatoryprocedure

The case involved Houston Balloons & Promotions, LLC and Purtee & Associates, Ltd., businesses that lease inflatable balloons for commercial advertising, suing the City of Houston over regulations in the Sign Code and Section 28-37 governing attention-getting devices (AGDs), including inflatables, which plaintiffs claimed violated their rights to free expression and equal protection under the First, Fifth, and Fourteenth Amendments. The City moved for partial summary judgment, arguing among other things that plaintiffs lacked standing to bring a First Amendment challenge because the regulations primarily restricted their customers' speech rather than their own. The court held that plaintiffs lacked standing to assert the claim on behalf of their customers, as overbreadth standing does not apply in this commercial speech context and economic incentives would encourage customers to sue directly if their speech were chilled, but noted that a new ordinance banning all AGDs effective in 2010 would give plaintiffs direct standing. Accordingly, the court denied the motion without prejudice, granted plaintiffs leave to amend their pleadings to challenge the new regulations, and directed the parties to prepare a new scheduling order.

free speechbusiness & regulatory

This case concerned whether defendants' processes for repairing underground pipes by impregnating a flexible liner with resin infringed Insituform's U.S. Patent No. 4,366,012. After multiple trials and appeals spanning over 17 years, the district court held that defendants' Process 1 infringed under the doctrine of equivalents, found Cat Contracting, Firstliner, and related parties liable for damages under direct infringement and alter ego theories, and declined to hold KM vicariously liable. The Federal Circuit affirmed the infringement finding for Process 1, reversed it for Process 2, and remanded on alter ego liability, which the district court resolved based on corporate control and notice of the patent. The court awarded damages for past infringement while noting the patent term had expired.

business & regulatoryproperty

In this case, plaintiff Julie Gengo sued Target National Bank for alleged violations of the Truth in Lending Act and Fair Credit Billing Act, claiming the bank failed to properly respond to her multiple notices of billing errors regarding finance charges and fees on her credit card account opened in 1997, and she sought statutory damages and other relief; the bank counterclaimed for breach of contract and unjust enrichment seeking payment of the roughly $8,000 balance. The court granted in part and denied in part both parties' summary judgment motions, ruling that the billing error notices were valid under the FCBA and Regulation Z, that the bank failed to comply with statutory response requirements for notices sent starting June 15, 2005, and that the bank could not collect disputed amounts related to those notices, but finding TILA claims for initial disclosures time-barred. The court reasoned that the FCBA prohibits collection efforts on disputed amounts until properly resolved and limited the bank's counterclaim accordingly while dismissing the plaintiff's broader claims for lack of timely action or insufficient evidence. The court ordered a separate hearing on damages for the FCBA violations.

business & regulatory

The case involved defendant Kevin Howard, former CFO of Enron Broadband Services, who was convicted by a jury in 2006 on charges of conspiracy to commit wire fraud and falsify books and records, multiple counts of wire fraud, and falsifying Enron's records. After the Fifth Circuit's decision in United States v. Brown invalidated the honest-services theory of wire fraud under 18 U.S.C. § 1346 and required vacating similar convictions due to a general verdict, Howard moved to vacate his own convictions on the same grounds. The court granted the motion, finding that the jury instructions allowed conviction on multiple theories including the now-invalid honest-services theory and that the general verdict and Pinkerton co-conspirator instruction created uncertainty about whether the jury relied on a valid basis for any of the counts. Because it could not be shown beyond a reasonable doubt that the verdicts rested solely on permissible grounds, all convictions were vacated under Yates v. United States, with the government permitted to retry the case.

criminal lawbusiness & regulatoryprocedure

This case involves Defendant Rex Shelby's motion to dismiss securities fraud and certain insider trading counts in the Fifth and Seventh Superseding Indictments arising from his role as an Enron Broadband executive, based on collateral estoppel from a prior trial where the jury acquitted him on four insider trading counts, deadlocked on others, and the court later dismissed wire fraud and money laundering counts under Rule 29. The government sought to retry Shelby on the remaining conspiracy, securities fraud, and insider trading charges under a new indictment with similar factual allegations. The court denied the motion, reasoning after a fact-intensive review of the indictments, jury instructions, evidence, and verdicts that the prior acquittals and dismissals did not necessarily resolve the elements of intent to defraud or other overlapping issues in the remaining counts against the government, so double jeopardy and collateral estoppel did not bar retrial.

criminal law

The case involved federal criminal charges against Enron executive Joseph Hirko for conspiracy to commit securities and wire fraud, substantive securities fraud, wire fraud, insider trading, and money laundering arising from alleged misrepresentations about Enron Broadband Services and stock trades in 2000 and 2001. After a jury trial on the Fifth Superseding Indictment resulted in acquittals on some 2000 insider trading and money laundering counts but a hung jury on the conspiracy, securities fraud, wire fraud, and remaining insider trading counts, the government filed a Seventh Superseding Indictment retrying the unresolved charges. Hirko moved to dismiss several of those counts on collateral estoppel grounds under the Double Jeopardy Clause, contending the acquittals necessarily decided that he made no false statements or omissions. The court denied the motion, concluding after a fact-specific review of the indictment, evidence, jury instructions, and verdicts that the acquittals did not resolve the factual elements required for the remaining counts.

criminal lawprocedurebusiness & regulatory

The case involves a dispute between JJK Industries and defendant Eric Klein over two patents for vibratory erotic stimulation devices attachable to pierced body parts, such as the tongue. JJK, assignee of U.S. Patent No. 6,382,815, moved for partial summary judgment under 35 U.S.C. § 291, seeking a ruling that Claims 1-4 of Klein's U.S. Patent No. 6,419,649 interfere with and are invalid in light of JJK's earlier-issued patent. The court denied the motion, finding that JJK failed to establish by a preponderance of the evidence that it conceived the invention prior to Klein's filing date, as JJK's own documents and testimony presented conflicting dates for prototypes that created genuine issues of material fact. The court did not reach the issue of reduction to practice due to these unresolved factual disputes.

propertyprocedurebusiness & regulatory

This case is a securities class action brought by lead plaintiff Dr. Russell Semeraro on behalf of purchasers of Seitel common stock, alleging that Ernst & Young violated Sections 10(b) and 20(a) of the Securities Exchange Act and Rule 10b-5 by issuing false audit opinions on Seitel's financial statements. The complaint claims that Seitel, with E&Y's approval, improperly recognized revenue from nonrefundable library card contracts in 2000 without deferring it under SAB 101, thereby inflating revenues and profits during the class period. After Seitel and its officers settled and entered bankruptcy, the action proceeded only against E&Y, which moved to dismiss the amended complaint under the PSLRA and Rule 12(b)(6). The court denied the motion, finding the allegations of false statements and scienter adequately particularized through confidential sources and E&Y's role, and determining that disputes over GAAP application and revenue recognition standards could not be resolved at the pleading stage without a factual record.

business & regulatoryprocedure

The case is a patent infringement suit in which Superspeed Software sued Oracle over three related patents describing methods and systems for coherently caching data from shared I/O devices, such as disks, across a network of computers while maintaining data integrity. The court resolved disputes over the meaning of certain claim terms, focusing on 'disabling cache operations' and 'enabling caching operations.' After reviewing the patent specifications, the parties' positions, and the ordinary meaning of the terms, the court construed 'disabling cache operations' as temporarily prohibiting the storing and reading of data on the cache, and 'enabling caching operations' as permitting those activities; it rejected both broader constructions that would bar all cache-related functions and narrower ones that would omit reading data from the cache.

business & regulatoryprocedure

In United States v. Yeager, the defendant faced multiple counts arising from his role as an Enron Broadband Services executive, including conspiracy to commit securities and wire fraud, substantive securities fraud, wire fraud, insider trading, and money laundering. After a jury acquitted him on the conspiracy, securities fraud, and wire fraud counts but deadlocked on the insider trading and money laundering counts, the government filed an eighth superseding indictment to retry him on the unresolved charges. Yeager moved to dismiss those counts under the Fifth Amendment's Double Jeopardy Clause and collateral estoppel doctrine, contending that the acquittals necessarily decided in his favor key issues such as whether he made false statements or used material nonpublic information. The court analyzed the jury instructions, the specific elements of each offense, and the factual allegations in the indictments to assess whether the prior acquittals precluded relitigation of issues essential to the remaining counts.

criminal lawprocedure

This case involved a dispute over insurance coverage under a policy issued by Gemini Insurance Company to S & J Diving, Inc. After S & J and related parties were added as defendants in a state-court lawsuit alleging liability for the sexual assault of a minor at an outdoor event, S & J sought defense and indemnification from Gemini. Gemini provided a defense under a reservation of rights and filed suit seeking a declaratory judgment that the policy did not cover the claims. The magistrate judge recommended granting Gemini's motion for summary judgment and denying the defendants' cross-motion, concluding that the underlying allegations did not fall within the policy's coverage; the district court adopted the recommendation after de novo review.

business & regulatoryprocedure

David Ray Harris, a Texas death row inmate facing execution by lethal injection, filed suit under 42 U.S.C. § 1983 alleging that the state's three-drug protocol (sodium thiopental, pancuronium bromide, and potassium chloride) violates the Eighth Amendment by causing severe conscious pain while making the inmate appear serene. After the Fifth Circuit remanded in light of Nelson v. Campbell, the district court considered whether the method-of-execution claim could proceed as a civil rights action rather than a successive habeas petition. The court concluded that the claim challenges the conditions of the execution method, not the validity or duration of the sentence itself, and therefore may go forward under § 1983. It denied the state's motion to dismiss, granted a temporary restraining order staying the June 30, 2004 execution, and scheduled further proceedings including a preliminary injunction hearing.

criminal lawcivil rightsprocedure

The case involved Holley Spinks suing her former employer, TruGreen Landcare, for disability discrimination and retaliation under the Texas Commission on Human Rights Act, claiming adverse treatment and termination due to her depression, her daughter's cleft palate, and her sister's anxiety. Spinks alleged that her supervisor imposed stricter requirements after learning of these issues and disciplined her for complaining about workplace matters, leading to her firing in October 2001. The court granted the defendant's motion for summary judgment, finding that Spinks failed to establish a prima facie case of discrimination or retaliation because she did not show she engaged in protected activity or that any adverse actions were based on her disability or associations. The court also noted that any potential emotional distress claim would not succeed as it arose from ordinary employment disputes.

labor & employmentcivil rightsprocedure

The case involved a challenge by several Texas cities and environmental organizations against the U.S. Army Corps of Engineers' issuance of a permit to the Port of Houston Authority for constructing the Bayport marine terminal project on Galveston Bay. The plaintiffs argued that the Corps violated the National Environmental Policy Act and the Clean Water Act by inadequately analyzing environmental impacts and alternatives before approving the permit. The court granted summary judgment to the defendants and denied the plaintiffs' motion, concluding that the Corps had followed all required NEPA procedures through scoping meetings, draft and final environmental impact statements, and multiple public comment periods. The court also determined that the Clean Water Act did not apply to the isolated wetlands at the site and that the project met applicable standards.

environmentbusiness & regulatoryfederal power

This case involved plaintiff Jerry S. Payne suing the United States for damages based on alleged unauthorized disclosures of his confidential tax return information by IRS agents during a criminal investigation, in violation of Internal Revenue Code Section 6103. The court found that certain third-party contacts by agent Batista were unnecessary and violated the statute and IRS procedures, but concluded that oral and written disclosures revealing the criminal nature of the investigation were protected by the good faith exception under Fifth Circuit precedent. The court also determined that Payne failed to identify specific actionable disclosures warranting damages or attorneys' fees and was not a prevailing party under 26 U.S.C. § 7430. Accordingly, the court entered judgment in favor of the United States, awarding Payne nothing.

taxescriminal law