# Lewis Brisbois v. Bitgood

> Court of Appeals for the Fifth Circuit · October 23, 2025

URL: https://www.frixlaw.com/law-library/cases/11176527

## Case

- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** October 23, 2025
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Nature of suit:** Private Civil Federal
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11176527

## How later opinions describe it (automated extraction)

- holding that “the Seventh Amendment provides a right to a jury trial on all issues pertinent to an award of statutory damages under § 504(c) of the Copyright Act, including the amount itself”

## Opinion text

Case: 24-20458 Document: 146-1 Page: 1 Date Filed: 10/23/2025

United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit

No. 24-20458
FILED
October 23, 2025
____________
Lyle W. Cayce
Lewis Brisbois Bisgaard & Smith LLP, Clerk

Plaintiff—Appellee,

versus

Michael Joseph Bitgood, also known as Michael
Easton; Susan C. Norman; Bradley B. Beers,

Defendants—Appellants.
______________________________

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:22-CV-3279
______________________________

Before Dennis, Graves, and Duncan, Circuit Judges.
Per Curiam: *
Lewis Brisbois Bisgaard & Smith, LLP (LBBS) sued Michael Joseph
Bitgood a/k/a “Michael Easton,” Susan C. Norman, Bradley B. Beers, and
the Texas entity known as “Lewis Brisbois Bisgaard & Smith, LLP,” (collec-
tively, Defendants) alleging (1) trademark infringement under § 32 of the
Lanham Act (15 U.S.C. § 1114); (2) unfair competition under § 42 of the

_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 24-20458

Lanham Act (15 U.S.C. § 1125) and Texas common law; (3) common-law
fraud; and (4) civil conspiracy to infringe upon trademarks and name and to
commit fraud. The district court granted LBBS summary judgment on the
trademark-infringement, unfair-competition, and conspiracy-to-infringe
claims; granted LBBS a permanent injunction; and awarded statutory dam-
ages and attorney fees. The court denied LBBS’s summary-judgment mo-
tion for the fraud and conspiracy-to-commit-fraud claims and dismissed
them with prejudice. For the following reasons, we AFFIRM in part and
VACATE and REMAND in part.
I
As discussed in greater detail in Lewis Brisbois Bisgaard & Smith,
L.L.P. v. Norman (LBBS 1), No. 23-20065, 2024 WL 3595388 (5th Cir. July
31, 2024), this saga began in Texas state court when Bitgood and another ten-
ant represented by attorney Norman sued a corporate landlord represented
by LBBS. During those proceedings, Bitgood and Norman discovered that
LBBS’s foreign limited liability partnership registration with the State of
Texas had lapsed. They quickly registered a new entity under the name
“Lewis Brisbois Bisgaard & Smith, LLP” with the Texas Secretary of State.
They then enlisted Beers, also an attorney, to prepare and file an assumed-
name certificate with the state under the same name. See id. at *1.
After creating this fake entity, Bitgood and Norman amended the
state-court petition to include it as a party. They then filed a motion under
Texas Rule of Civil Procedure 12 challenging the real LBBS’s authority to
represent the landlord. The court granted the motion, ruling that LBBS
lacked such authority. In response, LBBS sent a cease-and-desist letter to
Norman and Bitgood, who refused to comply and instead continued to prof-
fer filings in state court under LBBS’s letterhead. See id.

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LBBS then sued Defendants in federal district court on various trade-
mark, unfair competition, fraud, and conspiracy claims. The district court
granted LBBS a preliminary injunction, which our court affirmed. Id. at
*3–4. Subsequently, the district court granted LBBS summary judgment on
its trademark-infringement, unfair-competition, and conspiracy-to-infringe
claims, as well as a permanent injunction, statutory damages, and attorney
fees.
Bitgood, Norman, and Beers each appealed separately.
II
We review summary judgments de novo, applying the same standards
as the district court. Harville v. City of Hous., 945 F.3d 870, 874 (5th Cir.
2019). “The court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
As to the damages award, we review the district court’s fact findings
for clear error and its legal conclusions de novo. Spectrum Ass’n Mgmt. of Tex.,
L.L.C. v. Lifetime HOA Mgmt. L.L.C., 5 F.4th 560, 563–64 (5th Cir. 2021)
(citation omitted). We review de novo the court’s ruling on attorney
immunity. Ironshore Eur. DAC v. Schiff Hardin, L.L.P., 912 F.3d 759, 763 (5th
Cir. 2019).
We review for abuse of discretion an attorney-fee award under the
Lanham Act. All. for Good Gov’t v. Coal. for Better Gov’t, 919 F.3d 291, 295
(5th Cir. 2019). We may reverse such an award only if the court “base[d] its
ruling on an erroneous view of the law or on a clearly erroneous assessment
of the evidence.” ASHH, Inc. v. URZ Trendz, L.L.C., No. 23-20614, 2024
WL 3595385, at *1 (5th Cir. July 31, 2024) (quoting Highmark Inc. v. Allcare
Health Mgmt. Sys., Inc., 572 U.S. 559, 563 n.2 (2014)).

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III
Defendants Bitgood, Norman, and Beers each filed appellate briefs
raising numerous issues, many of which are frivolous, incoherent, or not
properly before us. 1
The remainder of Defendants’ arguments pertain to five issues:
(1) whether Rooker-Feldman abstention applies; (2) whether Beers was pro-
tected by attorney immunity; (3) whether Defendants used the LBBS marks
in commerce for purposes of Lanham Act liability; (4) statutory damages;
and (5) attorney fees.
A
We begin with Rooker-Feldman, which “generally precludes lower
federal courts ‘from exercising appellate jurisdiction over final state-court
judgments.’” Miller v. Dunn, 35 F.4th 1007, 1010 (5th Cir. 2022) (quoting
Lance v. Dennis, 546 U.S. 459, 463 (2006) (per curiam)).
As LBBS points out, Rooker-Feldman does not apply here because
there was no final state-court judgment. Indeed, the prior panel already ruled
on this point, making it law of the case. See LBBS 1, 2024 WL 3595388, at *2;
see also Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988)
(“[W]hen a court decides upon a rule of law, that decision should continue
to govern the same issues in subsequent stages in the same case.”). Even
though that prior decision was an interlocutory appeal of a preliminary
injunction, law of the case applies so long as the court “actually decided” the
_____________________
1
For his part, Bitgood’s brief levels a blizzard of accusations at the district court
and LBBS attorneys—including racism, ablism, professional misconduct, corruption, and
perjury—while offering little in the way of legal argument. For her part, Norman’s brief
raises one issue not properly before us, namely whether the prior panel should reconsider
its remark that her conduct amounted to professional misconduct. See LBBS 1, 2024 WL
3595388, at *1 n.1.

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No. 24-20458

issue, which it did. Royal Ins. Co. of Am. v. Quinn-L Cap. Corp., 3 F.3d 877,
880–81 (5th Cir. 1993); Gaalla v. Brown, 460 F. App’x 469, 476 (5th Cir.
2012).
B
We turn to whether Beers is protected by attorney immunity. The
district court ruled attorney immunity did not apply because Beers did not
meet his “burden of conclusively establishing that [his] involvement in the
registration of the Lewis Brisbois entity falls within the scope of client
representation.” 2 We see no error.
Beers argues he was entitled to immunity because his only relevant
conduct was preparing and filing the assumed-name certificate on behalf of a
client. We disagree.
Beers fails to grapple with the district court’s finding that he conspired
with Norman and Bitgood to infringe upon the LBBS marks. The court
found that Beers “communicated extensively” with Norman and Bitgood
about registering the fake LBBS entity, knew the real LBBS entity existed,
and worked with Bitgood and Norman to assist in forming “their infringing
entity to harm Plaintiff.” This is precisely the type of wrongful activity that
falls outside the scope of attorney immunity. See Haynes & Boone, 631 S.W.3d
65, 77 (Tex. 2021) (“[A]n attorney’s participation in independently
fraudulent activities is considered foreign to the duties of an attorney and is
not shielded from liability.” (internal quotation marks and emphasis
omitted)). Accordingly, the district court did not err in ruling that Beers was
not protected by attorney immunity.

_____________________
2
The prior panel ruled that attorney immunity did not apply to claims for
injunctive relief. See LBBS 1, 2024 WL 3595388, at *4.

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No. 24-20458

C
We turn to whether Defendants used the LBBS marks in commerce
for purposes of the Lanham Act. See 15 U.S.C. § 1114, 1125(a).
Beers argues that, because he only prepared and filed the assumed-
name certificate with the Secretary of State, he cannot have used LBBS
marks in commerce. Just as with Rooker-Feldman though, our prior panel
already addressed this issue.
On appeal from the preliminary injunction, we held that “[c]ommon
sense, clear concessions by Federal Defendants, and case law establish that
[Defendants’] infringing uses were ‘uses in commerce.’” LBBS 1, 2024 WL
3595388, at *3. We also explained that a sister-circuit decision, “under
striking similar circumstances, held that conduct, like formation of a
corporation and public communication, was sufficient” to find use in
commerce. Ibid. (citing Comm. for Idaho’s High Desert, Inc. v. Yost, 92 F.3d
814, 823 (9th Cir. 1996)). The district court correctly relied on this holding
in granting LBBS summary judgment.
D
Next, we consider whether the district court acted within its
discretion in assessing statutory damages.
Under the Lanham Act, a court may award damages “for any such use
in connection with . . . distribution of . . . services in the amount of . . . not
less than $1,000 or more than $200,000 per counterfeit mark . . . ; or . . . if
the court finds that the use of the counterfeit mark was willful, not more than
$2,000,000 per counterfeit mark.” 15 U.S.C. § 1117(c). Here, the district
court awarded damages of $1 million against Bitgood, $500,000 against
Norman, and $10,000 against Beers. The district court justified these
damages awards by recounting that Defendants stated in depositions, in

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court, and to the press that they purposefully took LBBS’s name, used it in
correspondence and court filings, printed fake LBBS business cards, and
taunted the real LBBS with their appropriation of its marks. Defendants
argue the district court erred in awarding statutory damages.
First, Defendants argue the damages award lacked a proper basis
because LBBS’s trademark had lapsed during the relevant period. They
point out that the registration for “Lewis Brisbois Bisgaard & Smith” lapsed
in 2020 and was not reregistered until 2022, the time period during which
Defendants engaged in their putative infringement. Accordingly, they argue
there was no basis for a damages award for infringing an unregistered mark.
See 15 U.S.C. § 1114(1)(a) (imposing liability for using a “reproduction,
counterfeit, copy, or colorable imitation of a registered mark”). Second,
Beers argues that the prior panel already decided this issue in their favor. And
third, Bitgood and Norman argue that the district court violated their
Seventh Amendment right to a jury trial by awarding statutory damages
without submitting to a jury the question of the amount of damages to be
awarded.
We first address Defendants’ contention about the prior panel’s
decision. In a footnote, that panel stated: “There is no evidence in the record
showing that Federal Defendants infringed on LBBS’s relevant registered
trademarks, so we consider only LBBS’s claims under § 1125(a).” LBBS 1,
2024 WL 3595388, at *2 n.3. Contrary to Defendants’ argument, that
statement did not settle the propriety of statutory damages.
As noted, the law-of-the-case doctrine applies only if a prior panel
actually decided an issue. See Gaalla, 460 F. App’x at 476. The prior panel
did not actually decide whether LBBS could claim infringement damages
under § 1114(1)(a). It made its statement only to explain why it elected to
consider LBBS’s likelihood of success on a different claim (an unfair-

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competition claim under § 1125(a)). Relatedly, the statement was
unnecessary to the holding and was therefore dicta. See, e.g., Int’l Truck &
Engine Corp. v. Bray, 372 F.3d 717, 721 (5th Cir. 2004). Accordingly, the
statement did not establish law-of-the-case whether LBBS could ultimately
make out an infringement claim under § 1114(1)(a) and obtain damages under
§ 1117(c). See, e.g., Soc’y of Roman Cath. Church of Diocese of Lafayette, Inc. v.
Interstate Fire & Cas. Co., 126 F.3d 727, 735 (5th Cir. 1997) (law-of-the-case
does not apply to “pure dicta”).
We therefore proceed to consider the propriety of the damages award.
As noted, Defendants argue the award was erroneous because
registration of the “Lewis Brisbois Bisgaard and Smith” mark had lapsed
from 2020 to 2022. Defendants are correct that putative infringement of an
unregistered mark cannot support a damages award under § 1117(c). See 15
U.S.C. § 1114(1)(a) (imposing liability for specified misuses of “a registered
mark”); see also Jim S. Adler, P.C. v. McNeil Consultants, L.L.C., 10 F.4th
422, 426 (5th Cir. 2021) (explaining that § 1114(1)(a) “creates a cause of
action for infringement of registered marks”). But LBBS counters, as it did
in the district court, that Defendants’ misuse of its name also infringed other
registered marks it owned that were similar to its unregistered mark. See 15
U.S.C. § 1127 (defining “counterfeit” as “a spurious mark which is identical
with, or substantially indistinguishable from, a registered mark”).
We decline to address this alternative ground for the statutory
damages award for the first time on appeal. The district court did not explain
the basis for the damages award under the relevant statutes. As a result, we
lack the necessary findings and reasoning to effectively review its damages
conclusion—and specifically, whether damages would be justified for
Defendants’ putative infringement of LBBS’s other registered marks.
Accordingly, we vacate the award of statutory damages as to each Defendant

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No. 24-20458

and remand for further consideration of Defendants’ liability under
§ 1114(1)(a).
In doing so, the district court should consider whether the Seventh
Amendment requires submission of the damages question to a jury. Although
LBBS and Defendants both demanded a jury trial, the district court awarded
damages itself. On appeal, Bitgood and Norman argue this violated the
Seventh Amendment. See, e.g., Feltner v. Columbia Pictures Television, Inc.,
523 U.S. 340, 355 (1998) (holding that “the Seventh Amendment provides a
right to a jury trial on all issues pertinent to an award of statutory damages
under § 504(c) of the Copyright Act, including the amount itself”); Top
Tobacco, L.P. v. Star Importers & Wholesalers, Inc., 135 F.4th 1344, 1350 (11th
Cir. 2025) (“We have little difficulty extending [Feltner] to trademark cases
because of the ‘clear and direct historical evidence that juries, both as a
general matter and in copyright cases, set the amount of damages awarded to
a successful plaintiff.’” (quoting Feltner, 523 U.S. at 355)). We express no
opinion on that issue.
E
Finally, we turn to the attorney-fee award. Because we remand for
reconsideration of liability and damages under § 1114(1)(a), we also vacate
the fee award and remand the issue of fees to the district court for
reconsideration. This is in keeping with this court’s practice of remanding
fee awards for reconsideration when underlying damages awards are likewise
remanded. See, e.g., Fluorine On Call, Ltd. v. Fluorogas Ltd., 380 F.3d 849,
867 (5th Cir. 2004) (remanding for reassessment of fee award in light of
remand for reconsideration of damages award); Black v. SettlePou, P.C., 732
F.3d 492, 501 (5th Cir. 2013) (same). Just as with the damages question, we
express no opinion on the propriety or amount of fees that should be awarded.

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IV
We AFFIRM the district court’s judgment as it pertains to unfair
competition, conspiracy to infringe, and permanent injunctive relief. We
VACATE the award of statutory damages and attorney fees and REMAND
for further proceedings consistent with this opinion.

10

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11176527. Public record. Not legal advice.