Take the Fifth

Designated for publication

• Wickfire, LLC v. Woodruff, 17-50340, appeal from W.D. Tex.
  • Owen, C.J. (Owen, Dennis, Southwick), sufficiency of evidence, jurisdiction, Lanham Act, tortious interference, civil conspiracy
  • Affirming in part and reversing in part district court judgment based on jury verdict on cross-claims between two internet advertising ventures arising from auctions for Google ad placement and click-based ad rates. Jury had found in favor of plaintiff Wickfire on its claims of tortious interference against TriMax and in favor of Wickfire on its claims of civil conspiracy against TriMax and various related entities, awarding $1,984,000 on the claim for tortious interference with existing contracts and $334,000 on the claim for tortious interference with prospective business relationships. On Wickfire’s Lanham Act claim, the jury had found that TriMax misrepresented Wickfire as the origin of advertisements by incorporating various marks of Wickfire likely to confuse consumers, but awarded no damages; with regard to TriMax’s tortious interference counter-claims, the jury found that Wickfire intentionally interfered with TriMax’s contract but had a colorable right to do so.
  • Addressing TriMax’s argument that the court lacked subject-matter jurisdiction because the one federal claim, under the Lanham Act, was “wholly insubstantial or frivolous” and that the federal court therefore did not have federal question jurisdiction and therefore also lacked supplemental jurisdiction over the remaining claims, the Court held that the federal court did have jurisdiction over Wickfire’s Lanham Act claim. The Court held that the rule for Lanham Act claims established in the Supreme Court’s decision in Dastar Corp. v. Twentieth Century Fox Film Corp. was that “one cannot shoehorn what essentially amounts to a putative patent violation or a putative copyright violation into a Lanham Act claim. In other words, there is no cause of action for violating the Lanham Act merely because the ‘good’ at issue incorporates the plaintiff’s ideas, concepts, writings, or the like.” The Court held that Wickfire’s Lanham Act claim did not run afoul of this distinction. “WickFire has alleged that TriMax created false advertisements appearing to have originated with WickFire in order to, inter alia, harm WickFire’s reputational interests in this industry. WickFire is not alleging TriMax wrongfully incorporated WickFire’s ideas or concepts into TriMax’s advertisements. … Instead, WickFire is interested in protecting the genuineness of its brand. We cannot say, based on Dastar, that WickFire’s claim is frivolous.”
  • The Court held that TriMax’s sufficiency of evidence argument on the Lanham Act claim was moot because, while the jury found that TriMax violated the act, it awarded no damages, and that Wickfire therefore was not a “prevailing party” entitled to attorney fees or any other relief against TriMax.
  • As to Wickfire’s tortious interference with contract claim, the Court held that Texas law has developed to clarify that, to assert a tortious interference claim, the plaintiff must show that the defendant induced plaintiff into an actual breach of the underlying contract. “[W]ithout sufficient proof that the defendant’s conduct resulted in ‘some obligatory provision of a contract ha[ving] been breached,’ the plaintiff’s tortious interference claim is infirm as a matter of law. WickFire offered no such proof.” Accordingly, the Court reversed the judgment on that claim.
  • Regarding Wickfire’s tortious interference with prospective business relationships claim, the Court held that “the evidence of WickFire’s actual damages is insufficient as a matter of law.” The Court arrived at this holding after examining Wickfire’s damages expert’s testimony. “When WickFire’s damages expert was asked how he calculated that dollar figure, the expert said that he had ‘quantified those damages by calculating the amount of profits that [WickFire] lost because of the six-month delay.’ He did not testify as to how he performed that calculation, nor did he point to any data concerning the business generated by TheCoupon.co. This evidence is threadbare and conclusory.”
  • Because the Court reversed Wickfire’s underlying tortious interference claims, it also reversed the judgment on Wickfire’s civil conspiracy claim.
  • As to TriMax’s tortious interference counter-claim, the Court held that there was “ample” evidence to support the jury’s verdict that Wickfire had a colorable justification to take the actions it took; moreover, the Court held that it saw “nothing to indicate WickFire’s putative ‘kickbacks’ or its bidding practices were illegal or tortious, which would, under Texas law, preclude the defense as a matter of law.”

• U.S. v. Lopez, 17-50806, appeal from W.D. Tex.
  • Owen, C.J. (Owen, Wiener, Dennis), criminal, sentencing
  • Vacating concurrent sentences of 210 months on each count of a guilty plea conviction for conspiracy to possess with intent to distribute more than five kilograms of cocaine and conspiracy to possess with intent to distribute more than fifty kilograms of marijuana, where an amendment to the Sentencing Guidelines after the defendant’s sentence was imposed retroactively lowered the base offense levels for Lopez’s drug offenses by two levels. Remanding to the district court for a determination on whether a reduction of sentence is warranted.
  • “The question presented in this case is complex: whether Lopez is eligible for a reduction under this statute when the district court sentenced him to 210 months’ confinement on each of two drug offenses, running concurrently, after he received a downward departure from his initial sentencing range for providing substantial assistance to the government, given that the base drug offense levels for each count has retroactively been reduced, and given further that one of those counts is subject to a statutory maximum term of imprisonment. Because Lopez’s ‘applicable guideline range’ is distinct from his ‘guideline sentence,’ he is eligible for a sentence reduction.”

• Fontana v. H O V G L L C, 20-30471, appeal from W.D. La.
  • Elrod, J. (Elrod, Willett, Engelhardt), Fair Debt Collection Practices Act
  • Affirming district court’s dismissal of plaintiff’s FDCPA claim arising from debt collector’s telephone conversation with plaintiff’s sister.
  • The Court analyzed the threshold issue under the FDCPA of whether the telephone conversation between plaintiff’s sister and the defendant fell within “the Act[‘s] prohibit[ion] [of] debt collectors from ‘communicating’ with third parties in connection with the collection of a debt.” The Court held that “the [statutory] text makes it clear that, to be considered a communication, any message or conversation must convey ‘information regarding a debt.'” The Court found that the defendant’s employee’s identification to plaintiff’s sister of the name of the defendant did not qualify as the communication of the existence of a debt: “[T]o indirectly convey information regarding a debt, a conversation or message would need to, at the very least, imply that a debt existed. Knowing the name of a debt collector does not imply the existence of a debt. Here, the representative gave the name Bay Area Credit Service. The average consumer likely would not know that Bay Area Credit Service is a debt collection agency. Although the company’s name includes the word ‘Credit,’ ‘the word “credit” refers to a category of financial activities far broader than debt collection’ and would not necessarily imply the existence of a debt.”

Unpublished

• Williams v. Taylor Seidenbach, Inc., 18-31159, appeal from E.D. La.
  • per curiam (Haynes, Graves, Duncan), asbestos, product liability, federal officer jurisdiction
  • Affirming summary judgment in favor of defendant on asbestos-exposure claim, and finding that court properly had federal officer jurisdiction.

• Wardrip v. Lumpkin, 18-70016, appeal from N.D. Tex.
  • per curiam (Higginbotham, Southwick, Ho), habeas corpus
  • Granting petition for rehearing, and remanding to district court for consideration of argument ignored by district court and original panel opinion regarding petitioner’s § 2254 petition.

• Warner v. U.S., 19-11273, appeal from N.D. Tex.
  • per curiam (King, Smith, Wilson), prisoner suit
  • Dismissing for lack of appellate jurisdiction the plaintiff’s appeal of an order severing multiple prisoners’ joint suit challenging constitutionality of 18 U.S.C. § 3632(d)(4)(D).

• Yazdchi v. Mercedes Benz U.S.A., LLC, 19-20735, appeal from S.D. Tex.
  • per curiam (Clement, Higginson, Engelhardt), product liability
  • Affirming summary judgment dismissal of product liability claim on Texas statute of repose grounds.

• Semien v. U.S., 19-41061, appeal from E.D. Tex.
  • per curiam (King, Smith, Wilson), prisoner suit
  • Affirming dismissal of plaintiff’s FTCA claim on lack-of-jurisdiction grounds for failure to exhaust administrative remedies.

• Singh v. Wilkinson, 19-60831, petition for review of BIA order
  • per curiam (King, Smith, Wilson), immigration
  • Denying in part and dismissing in part Indian citizen’s petition to review BIA dismissal of his appeal of the denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture.

• U.S. v. Cross, 20-10309, appeal from N.D. Tex.
  • per curiam (Jones, Barksdale, Stewart), criminal, sentencing
  • Affirming 120-month sentence on guilty plea conviction of deprivation of rights under color of law.

• U.S. v. Delapena, 20-10467, appeal from N.D. Tex.
  • per curiam (Barksdale, Graves, Oldham), criminal, guilty plea
  • Affirming defendant’s guilty-plea conviction for conspiracy to possess, with intent to distribute, a controlled substance.

• U.S. v. Haiddar, 20-10539, appeal from N.D. Tex.
  • per curiam (Jolly, Elrod, Graves), criminal, sufficiency of evidence
  • Affirming conviction on two counts of making a false statement in a passport application and one count of unlawful procurement of citizenship or naturalization, on finding that there was sufficient evidence as to her conviction of unlawful procurement of citizenship or naturalization.

• U.S. v. Carvajal, 20-40429, appeal from E.D. Tex.
  • per curiam (King, Smith, Wilson), criminal, sufficiency of evidence
  • Affirming conviction on one charge of possessing a prohibited weapon in prison, finding there was sufficient evidence to identify him as the perpetrator and that defendant’s due process rights were not infringed by the destruction of the video of the incident underlying this charge.

• U.S. v. Del Carpio Frescas, 20-50002, appeal from W.D. Tex.
  • per curiam (King, Smith, Wilson), criminal, sentencing
  • Affirming 24 concurrent 216-month sentences on conviction of 24 counts of wire fraud and 10 counts of money laundering.

• U.S. v. Harvey, 20-50139, appeal from W.D. Tex.
  • per curiam (Clement, Higginson, Engelhardt), criminal, sentencing
  • Affirming district court’s denial of a safety-valve reduction and a minor-role reduction from mandatory-minimum 10-year sentence for conspiracy to possess with intent to distribute at least 500 grams of methamphetamine.

• U.S. v. Smith, 20-50187, appeal from W.D. Tex.
  • per curiam (Jones, Barksdale, Stewart), criminal, sentencing
  • Affirming concurrent 300-month sentences on guilty plea conviction of three counts involving conspiracy to possess, with intent to distribute, and to distribute: at least 500 grams of a mixture or substance containing methamphetamine; at least 500 grams of a mixture or substance containing cocaine; and at least 280 grams of a mixture or substance containing crack cocaine.

• U.S. v. Self, 20-50692, appeal from W.D. Tex.
  • per curiam (Higginbotham, Smith, Oldham), criminal
  • Dismissing as frivolous denial of motion for release from sentence for revocation of supervised release.

• Zuniga v. Wilkinson, 20-60155, petition for review of BIA order
  • per curiam (King, Smith, Wilson), immigration
  • Denying in part and dismissing in part Honduran citizen’s petition for review of BIA summary dismissal of his appeal from the IJ’s denial of his motion to reopen sua sponte.

• Escobar-Castro v. Wilkinson, 20-60733, petition for review of BIA order
  • per curiam (King, Smith, Wilson), immigration
  • Denying Honduran citizen’s petition for review of BIA dismissal of his appeal from an order of the IJ denying asylum, withholding of removal, and protection under CAT.