Lewis Brisbois v. Bitgood

Case: 24-20458 Document: 187-1 Page: 1 Date Filed: 02/27/2026

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________ FILED

February 27, 2026

No. 24-20458

____________ Lyle W. Cayce

Clerk

Lewis Brisbois Bisgaard & Smith LLP,

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

______________________________

ON PETITIONS FOR REHEARING

Before Graves and Duncan, Circuit Judges.*

Per Curiam:**

The petitions for rehearing en banc by Appellants Beers, Norman, and

Bitgood are DENIED. The petitions for panel rehearing by Appellants

_____________________

*

Judge Dennis was a member of the panel that heard this case but took inactive

status after the case was submitted. This matter is decided by a quorum under 28 U.S.C.

§ 46(d).

**

This opinion is not designated for publication. See 5th Cir. R. 47.5.

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No. 24-20458

Norman and Bitgood are also DENIED. No member of the panel or judge

in regular active service requested that the court be polled on rehearing en

banc in this case (Fed. R. App. P. 35 and 5th Cir. R. 35). Appellant

Beers’s petition for panel rehearing is GRANTED. See 5th Cir. R. 40.

We withdraw our previous opinion, 2025 WL 2987446, and substitute the

following:

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

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

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“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.

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)

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(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)).

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

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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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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

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 The court seemed to rely on Beers’s extensive

communication with Norman and Bitgood about registering the fake LBBS

entity, his knowledge of the real LBBS entity, and his work with Bitgood and

Norman to form “their infringing entity to harm Plaintiff.”

_____________________

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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This is not the type of conduct that overcomes attorney immunity, but

is rather the “kind of conduct” attorneys engage in “when discharging duties

to a client.” See Ironshore, 912 F.3d at 767. Communicating with clients and

assisting them in the formation of legal entities is work typical of an attorney.

See Haynes & Boone, LLP v. NFTD, LLC, 631 S.W.3d 65, 76 (Tex. 2021)

(citing Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 484 (Tex. 2015)). Nor

does Beers’s knowledge of the existence of the real LBBS suffice to defeat

immunity. When evaluating immunity, we are concerned with the conduct of

an attorney, not what they knew or should have known. See Ironshore, 912

F.3d at 764. If Beers’s actions were limited to providing legal services to

Bitgood and Norman, they were within “the scope of” his “representation

of his client[s].” Haynes & Boone, 631 S.W.3d at 77.

Beers correctly argues that he was entitled to immunity because his

only relevant conduct was directing the preparation of formation documents,

reviewing and signing a standard assumed-name certificate, and filing

paperwork with the Secretary of State. Accordingly, the district court erred

in ruling that Beers was not protected by attorney immunity.

C

We next turn to whether Defendants used the LBBS marks in

commerce for purposes of the Lanham Act. See 15 U.S.C. § 1114, 1125(a).

Just as with Rooker-Feldman, 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

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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 and $500,000 against

Norman.3 The district court justified these damages awards by recounting

that Defendants stated in depositions, in 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,

_____________________

3

The court also awarded a $10,000 award to Beers but that award is vacated

separately given our finding of attorney immunity.

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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-

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

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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

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

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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.

IV

We AFFIRM the district court’s judgment as it pertains to unfair

competition, conspiracy to infringe, and permanent injunctive relief. We

REVERSE as to Beers’s attorney immunity, VACATE the award of statu-

tory damages and attorney fees, and REMAND for further proceedings con-

sistent with this opinion.

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