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Pro se litigant and lawyer ordered to pay $1.5M for using Lewis Brisbois name

By Debra Cassens Weiss

September 17, 2024, 3:05 pm CDT

Updated: A federal judge in Houston has ordered a lawyer and a pro se litigant in a rental-fee and eviction dispute to pay $1.5 million for registering a Texas business using the name of Lewis Brisbois Bisgaard & Smith, the law firm representing their litigation opponent in the rental litigation.

U.S. District Judge Keith P. Ellison of the Southern District of Texas ordered pro se litigant Michael Bitgood to pay $1 million and lawyer Susan C. Norman, who represented a second litigant in the rental dispute, to pay $500,000, Law360 reports. Another lawyer, Bradley B. Beers, was ordered to pay $10,000 for filing an assumed name certificate that registered the new entity with the Texas secretary of state’s office.

Bitgood and Norman filed documents to register a partnership and assume the Lewis Brisbois name after they saw an online notice reflecting that the firm’s registration for a foreign limited liability partnership in Texas had lapsed. After taking on the Lewis Brisbois name, Bitgood and Norman alleged that the Lewis Brisbois lawyer representing their opponent in the rental litigation no longer had the right to appear in a Texas court. The gambit worked.

Lewis Brisbois sued in September 2022 for alleged trademark infringement, unfair competition and fraud. Ellison issued a preliminary injunction in February 2023 that was upheld in an unpublished July 31 opinion by the 5th U.S. Circuit Court of Appeals at New Orleans.

Ellison granted a motion for summary judgment Aug. 14, a permanent injunction Sept. 6 and assessed damages Sept. 13.

Ellison’s summary judgment opinion found for Lewis Brisbois on the trademark infringement and unfair competition claims. He also said Lewis Brisbois was entitled to attorney fees, which are allowed in Lanham Act trademark cases that are “exceptional.”

“If any Lanham Act case is exceptional, it is this one,” Ellison wrote. “Defendants have filed dozens of frivolous motions and delayed the proceedings for months.”

In a footnote, Ellison said the filing of frivolous motions was “most egregious” in Bitgood’s case because he had filed 65 motions and documents after being granted access to the PACER filing system.

“This court has had complex, multiyear class actions require far fewer filings than this straightforward infringement case,” Ellison wrote.

Norman and Beers did not immediately respond to the ABA Journal’s email and voicemail messages seeking comment.

Bitgood told the Journal in an email that, “No, I do not have $1 million laying around” to pay the judgment. He elaborated in a phone interview.

“Not only is it unfair, it’s outrageous,” Bitgood says of the damages order. Lewis Brisbois “didn’t suffer a penny’s worth of damages; they incurred no attorneys fees,” he says.

Bitgood says he sought to use the Lewis Brisbois name “for the heck of it,” but his quest turned out to be successful because he “whipped” Lewis Brisbois when he disqualified the firm in the rental dispute.

“I beat them fair and square in state court,” he says.

Bitgood says he told Ellison in an Oct. 6, 2022, hearing, which was less than a month into the trademark lawsuit, that he had no interest in fighting the trademark case and didn’t want to use the Lewis Brisbois name.

“Who wants a name like that with their reputation anyway?” Bitgood says.

Additional demands, however, for a reversal of the rental decision and indemnity led Bitgood, in his words, to tell Lewis Brisbois to, “Blow it out your a- -; there is no way I’m going to do all that.”

As for Ellison’s allegations that Bitgood filed frivolous motions, Bitgood says the judge should specify which motions he thought were frivolous and what law supported his conclusion. And he should have a hearing to refute the allegations, Bitgood says.

Because he indicated early on that he was willing to give up the name, Bitgood says, “What are we fighting about?”

Updated Sept. 17 at 3:37 p.m. to add comments from pro se litigant Michael Bitgood.

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Lewis Brisbois accused of failing to recognize ‘draconian lending terms,’ conspiring to cover up mistakes

By Debra Cassens Weiss

March 26, 2024, 1:08 pm CDT

A lawsuit accuses Lewis Brisbois Bisgaard & Smith of conspiring to deflect blame for its failure to protect 185 Chinese investors who lost $92.5 million that they invested in a hotel and condominium project through an investment group called CMB Export.

Law360 has the story on the allegations, contained in a March 14 suit filed in the U.S. District Court for the Eastern District of California.

CMB Export was a junior mezzanine lender contributing $450 million total to the $2.5 billion project, according to the suit. The plaintiffs’ investments of $500,000 each allowed them to qualify for the federal EB-5 visa program.

The investors were supposed to receive repayment of loaned funds plus a portion of any profit earned by CMB. They have so far received nothing, and their investment capital has been wiped out, according to the suit.

CMB was represented by Lewis Brisbois. According to the suit, CMB was “a valuable client” whose business in the EB-5 industry generated “massive legal fees” for the law firm for at least a decade.

The plaintiffs allege that Lewis Brisbois committed malpractice and aided CMB’s breach of fiduciary duty to investors. The firm then engaged in a RICO conspiracy with CMB to hide the mistakes by filing meritless suits against senior lenders, the suit claims.

Lewis Brisbois and CMB “seek to disguise their naivete by shifting the focus to unfortunate conduct by senior lenders in the project and away from their failed business judgment, complete ineptitude, and failure to exercise a modicum of diligence,” the suit says.

As a junior mezzanine lender, CMB had lower repayment priority than a senior mezzanine lender and a senior lender for the project.

“From the beginning of the project,” the suit says, “CMB should have but failed to negotiate a first
right of refusal and/or unilateral right to buy up or purchase a partial stake in the senior loan
and/or senior mezzanine loan to protect its interest in the project.”

The developer sought more funding, producing a new lender and amended loan agreements with an unreasonable maturity date that failed to reasonably protect CMB’s junior mezzanine loan interest, the suit says.

If CMB and Lewis Brisbois had been “paying attention,” the suit says, they would have realized the severity of “the draconian lending terms” in an amended loan agreement, the petition says.

“At the very least, CMB should have ensured an extension of the project’s loan maturity date to minimize the possibility of a foreclosure,” according to the suit.

Nor did CMB notify the petitioners of a one-time right to purchase the senior loan, the suit says.

After CMB received notice of foreclosure in August 2022, Lewis Brisbois filed meritless suits in California and New York, the investors allege. The “sham lawsuits” alleged that Lewis Brisbois and CMB were “tricked” into signing a fourth amendment to the creditor agreement, even though a term sheet sent to Lewis Brisbois attorneys disclosed many of the terms, the investors say in their suit.

So far, CMB has paid Lewis Brisbois more than $3.8 million in legal fees.

“To this day,” the suit says, “CMB continues to conceal the meritless nature of the litigation against lender and recently had the audacity to request additional money from petitioners” to fund the litigation.

A Lewis Brisbois spokesperson told Law360 that the firm is in the process of responding to the allegations. But the firm did not comment further, saying it “does not generally comment on claims against clients or the firm.”