Cunningham Swaim, LLP Business & Aviation Law Firm | Dallas, TX , Pasadena, CA & Denver, CO, TX & Pasadena, CA2026-10-21T09:31:29Zhttps://www.cunninghamswaim.com/feed/atom/WordPressOn Behalf of Cunningham Swaim, LLP<![CDATA[When to seek a writ of mandamus in civil litigation]]>https://www.cunninghamswaim.com/?p=483622026-10-21T09:31:29Z2026-10-21T09:31:29ZThe three conditions courts apply to mandamus petitions
Federal courts derive their authority to issue writs of mandamus from the All Writs Act. Courts generally look to three conditions, drawn from Cheney v. United States District Court for the District of Columbia. First, you typically need to show that you have no other adequate means to attain the relief you seek. Second, your right to the writ generally needs to be clear and indisputable. Third, the reviewing court generally needs to find that granting the writ is appropriate under the circumstances. You can file the petition with the circuit clerk.
What challenges might you face?
Even a plainly erroneous pretrial order may not be enough on its own to justify mandamus relief. The Supreme Court has clarified that issuance of an extraordinary writ is not a matter of right, but of discretion sparingly exercised. Courts have consistently described mandamus as a drastic remedy, to be employed only in the most extraordinary of cases. Petitioners carry a heavy burden, and courts frequently deny these petitions even when the underlying order appears incorrect.
How a legal guide can help
Knowing which pretrial orders courts have historically found to justify mandamus may help you assess whether your circumstances meet the required threshold. An attorney experienced in appellate law may clarify the procedural requirements, helping you structure the petition correctly from the outset.]]>On Behalf of Cunningham Swaim, LLP<![CDATA[Proving willful infringement for enhanced damages in IP cases]]>https://www.cunninghamswaim.com/?p=482552026-10-09T05:23:33Z2026-10-09T05:23:33ZThe legal standard for willful conduct
The willfulness standard depends on the type of IP at issue. In patent cases, courts generally ask whether the infringer knew about the patent and chose to infringe. In trademark cases, courts often ask whether the defendant intended to benefit from the mark's goodwill.
Parties typically review emails, product records and prior notices. Counsel can challenge good-faith defenses by comparing those records against the defendant's timeline – gaps may support intent.
Evidence that supports enhanced damages
Under 35 U.S.C. § 284, a court may increase a patent damages award by up to three times for willful or bad-faith conduct. The amount of any enhancement is within the court's discretion, up to that statutory ceiling. Certain behaviors often support these claims:
Demonstrating direct knowledge of the asset
Documenting planned or deliberate copying
Identifying attempts by the defendant to conceal the infringing conduct
Establishing the absence of a good-faith belief that the conduct was lawful
These factors help the court decide whether the conduct supports an enhanced award under § 284. Developing these facts early in the case can strengthen the damages position. Clear, organized evidence also helps the court see why the defendant's conduct looks deliberate.
How federal district court rules affect your willfulness evidence
Federal courts set specific rules for how parties disclose and use intent evidence. These vary by district and can affect what a court allows at trial on willfulness. Following local patent rules – including disclosure deadlines and claim construction schedules – helps protect the record. Meeting those deadlines also reduces the chance that a court excludes key state-of-mind evidence. Litigation strategy should reflect local rules and current case law in the filing district.
Building a willful infringement case: Next steps
Proving willful infringement typically requires a record showing the defendant knew about the right and chose to proceed anyway. Targeted discovery often determines whether that record supports enhanced damages. Early focus on evidentiary standards and local rules may improve how the court evaluates willfulness rules.]]>On Behalf of Cunningham Swaim, LLP<![CDATA[Cunningham Swaim Secures Reversal of $21.5 Million Judgment for Starr Indemnity in Published California Appellate Decision]]>https://www.cunninghamswaim.com/?p=482582026-10-05T05:53:40Z2026-10-05T05:33:17ZCourt of Appeal holds insurer entitled to rescind aircraft policy where jet was purchased with funds embezzled by Michael Avenatti
DALLAS — October 1, 2026 — Cunningham Swaim, LLP today announced a significant appellate victory on behalf of its client, Starr Indemnity & Liability Company. In a unanimous opinion certified for publication, the California Court of Appeal, Second Appellate District, Division Six, reversed in its entirety a Santa Barbara County jury verdict and judgment against Starr totaling more than $21.5 million, including $15 million in punitive damages. Passport 420, LLC v. Starr Indemnity & Liability Co., 2d Civ. Nos. B343113, B344423.
The case arose from Starr's aircraft insurance policy covering a jet owned by Passport 420, LLC, an entity whose manager was former attorney Michael Avenatti. In 2019, the United States government seized the aircraft in connection with Avenatti's federal criminal prosecution. It was undisputed that Avenatti had embezzled approximately $2 million from a client and used those funds to pay for his share of the jet's purchase price. When Passport sued for the insured value of the aircraft, Starr contended that Passport's concealment of the embezzlement entitled Starr to rescind the policy. The trial court disagreed, and the jury awarded Passport $3.99 million in policy benefits and $15 million in punitive damages. With prejudgment interest, attorney's fees, and costs, the judgment exceeded $21.5 million.
The Court of Appeal reversed, holding that the trial court erred in denying Starr's motion for judgment. In an opinion authored by Justice Kenneth Yegan and joined by Presiding Justice Cody and Justice Baltodano, the Court established two important principles of California insurance law:
An applicant's duty of disclosure does not depend on the insurer's questions. Under Insurance Code sections 332, 334, and 336, an applicant must affirmatively disclose material facts within its knowledge, and an insurer may rescind for concealment of a material fact even if its application never asked about that fact. The Court held, as a matter of law, that the use of embezzled funds to purchase the aircraft was material because no reasonable insurer would knowingly cover property against government seizure under those circumstances.
The "malevolent agent" exception does not shield an insured that benefited from its agent's conduct. The Court held that Avenatti's knowledge of his crime was imputed to Passport because he was acting as Passport's manager, and for Passport's benefit, when he applied the funds to the aircraft purchase and when Passport obtained the Starr policy.
“This published decision is vindication for the Cunningham Swaim trial team, who were entitled to prevail as a matter of law in the trial court,” said Steven D. Sanfelippo, the Cunningham Swaim partner who led the appeal. “The Court of Appeal’s decision restores the proper balance of the disclosure obligations that make the insurance system work, and it confirms that an insurer cannot be forced to pay for a loss that arose from a risk deliberately hidden from it. We are grateful to Starr for its trust and for its resolve in seeing this case through."
"This is an outstanding result for Starr and an important precedent for the insurance industry," said Ross Cunningham, Managing Partner of Cunningham Swaim. "Steve and his team brought exceptional skill, persistence, and judgment to a difficult appeal. Starr stood on principle in refusing to underwrite the consequences of a committed criminal's fraud, and Steve championed that position from pretrial through the appellate court. I could not be prouder of the work he and our team did on Starr's behalf."
The Cunningham Swaim trial team included Ross Cunningham and Don Swaim. The appellate team included Steven D. Sanfelippo and Jonathan E. Hembree.
The opinion can be found here: https://app.box.com/s/xkv4v2iz1qfo2eefdx96wb1tl854fquq]]>On Behalf of Cunningham Swaim, LLP<![CDATA[How to stay a judgment during a Texas appeal]]>https://www.cunninghamswaim.com/?p=482522026-09-28T09:37:00Z2026-09-28T09:37:00ZSecuring a stay with supersedeas bonds
Posting a supersedeas bond typically allows you to obtain a stay, stopping the winning party from collecting the judgment or taking your property during the appeals process. For money judgments, Texas Civil Practice and Remedies Code caps the required security at the lesser of 50% of the judgment debtor's net worth or $25 million.
Seeking alternate forms of security
You can deposit cash directly with the trial court clerk without judge approval, though court permission is required if you wish to post alternate non-cash security. An experienced appellate attorney can evaluate which assets best meet the court's security requirements while minimizing disruption to your finances.
This flexibility can be valuable if your assets are concentrated in illiquid holdings like real property or business equity. Liquidating those assets to fund a cash bond could cause significant financial disruption. This allows for security arrangements that protect both parties.
Challenging the sufficiency of security
The prevailing party may challenge security adequacy to ensure that sufficient assets remain available to satisfy the judgment. The court may require more security if the value of the posted asset drops significantly. Opposing lawyers often file motions to contest:
The judgment debtor's claimed net worth
The surety's financial condition or solvency
The current market value of posted assets
The court may require new security if your surety becomes insolvent or faces financial distress. The trial court may lift the stay if you fail to provide updated security.
What happens after the court rules on your stay
If the appellate court reverses the judgment, the stay protects you from satisfying an overturned judgment. If the court affirms the judgment, the court lifts the stay and the prevailing party moves to execute.
A stay under Texas Rule of Appellate Procedure 24 only protects you if the security remains valid. If a challenge succeeds, the stay can collapse and expose you to enforcement. Reviewing your security structure with an appellate attorney early in the process can help you avoid a lapse in coverage before the appeal concludes.]]>On Behalf of Cunningham Swaim, LLP<![CDATA[How to handle a business partner who misuses company money]]>https://www.cunninghamswaim.com/?p=482442026-09-11T11:20:40Z2026-09-11T11:20:40ZWhen trust breaks down and money goes missing
Financial misuse happens in many forms. It rarely starts big, with warning signs often appearing gradually. Common examples of misusing company funds include making personal expenses on the company card or inflated invoices.
If financial misconduct is happening, you’ll notice discrepancies between bank statements and financial records. Other red flags include:
Unusual or unauthorized transactions on company accounts
Expenses with no receipts, invoices or paper trail
Payments to unknown vendors or personal accounts
Sudden lifestyle changes with no clear income source
Reluctance to share financial records
Defensive behavior when you ask questions about finances is another big red flag. These patterns signal serious problems that require immediate attention.
Taking action internally before heading to court
Before pursuing litigation, you can take steps to address the situation and protect your interests. Gather as much evidence as you can. Pull financial statements, receipts and any communication about the suspicious activity. Preserving detailed records now strengthens your position and gives you leverage in negotiations.
Additionally, consider bringing in a forensic accountant to review your books and quantify any losses. Try to avoid confronting your partner without legal guidance first. A rushed conversation can tip them off and cause them to destroy key records.
Your legal path forward without shutting down
When internal resolution fails, legal options help you recover losses while keeping your business running. You may consider pursuing:
A business law attorney may also help you restructure ownership or establish new controls that prevent future misuse.
Protect your business before the damage worsens
Taking action after you discover financial misconduct protects not just your money but your entire business. The longer you wait, the harder it gets to recover losses and keep operations stable. Acting decisively and with proper legal guidance prevents small problems from becoming catastrophic losses that force a complete business shutdown.]]>On Behalf of Cunningham Swaim, LLP<![CDATA[Cunningham Swaim Takes Second Defense Verdict in 25 Days; Dallas Jury Rejects $200,000 Contract Claim in Under Seven Minutes]]>https://www.cunninghamswaim.com/?p=482482026-08-27T17:59:03Z2026-08-27T17:59:03ZLipscher v. Western Healthcare, LLC — 192nd Judicial District Court, Dallas County, TexasDALLAS, Tex. — [August 26, 2026] — A Dallas County jury returned a complete defense verdict in favor of Western Healthcare, LLC on August 25, 2026, rejecting a $200,000 breach-of-contract claim after less than seven minutes of deliberation.The case, Randolph Lipscher, M.D. v. Western Healthcare, LLC, Cause No. DC-24-09786, was tried before Judge Maria Aceves in the 192nd Judicial District Court of Dallas County. The plaintiff, a physician, contracted with Western Healthcare — a national medical staffing company — for a COVID and disaster-relief assignment at a Laredo, Texas hospital. After the hospital asked that he be removed from the facility in March 2021, Western Healthcare ended the assignment. The plaintiff claimed the termination was without cause and without the contractual notice period and sought the full $200,000 he said the assignment was worth, plus attorney’s fees.Cunningham Swaim relished the chance to try the case on the contract. The parties’ Independent Contractor Agreement allowed Western Healthcare to terminate the assignment at its sole discretion if the client hospital requested the physician’s removal for reasons of professional incompetency or misconduct and limited his compensation to services actually performed. The jury no breach of the contract, and the plaintiff was awarded absolutely nothing.The defense was tried by David Denny of Cunningham Swaim, LLP.The verdict is the firm’s second complete defense verdict in 25 days. On July 31, 2026, a federal jury in Lafayette, Louisiana returned a full defense verdict for Westwind Helicopters in Romero v. Westwind Helicopters, No. 6:23-442 (W.D. La.), rejecting a $42 million demand after 37 minutes — a case tried by Ross Cunningham and David Denny. Denny tried both cases: a catastrophic-injury helicopter case in federal court in Louisiana, and a commercial contract case in Texas state court, twenty-five days apart.Ross Cunningham — “two defense verdicts in twenty-five days, and the two cases had nothing in common. We took a helicopter crash to a federal jury in Lafayette, and a hospital contract case to a state jury in Dallas, and neither jury needed an hour. Real trial lawyers are made by trying cases, not by talking about it. Two jury trials in less than a month – that’s the whole idea of this firm. We do not have a home courthouse. We go where the case is.”Multiple Cunningham Swaim partners are members of the American Board of Trial Advocates, an invitation-only organization that admits lawyers on the basis of a verified record of civil jury trials tried to verdict.Related: Cunningham Swaim Obtains Defense Verdict in Federal Helicopter Trial; Jury Rejects $42 Million Demand in 37 MinutesAbout Cunningham Swaim, LLPCunningham Swaim, LLP is a trial firm representing clients in aviation, insurance defense, business, and catastrophic injury litigation, with offices in Texas, California, Colorado, New York, and Utah. The firm’s aviation practice specializes in catastrophic wrongful death and personal injury trials, product liability, and insurance coverage.]]>On Behalf of Cunningham Swaim, LLP<![CDATA[Difference between trademark dilution and trademark infringement]]>https://www.cunninghamswaim.com/?p=482332026-08-27T13:40:52Z2026-08-27T13:40:52ZThe uniqueness of a trademark must be guarded carefully; failing to do so can cause irreversible damage to your brand. If you suspect someone is misusing your trademark, it is important to understand the difference between trademark dilution and trademark infringement. Here is what you need to know.
What is trademark infringement?
Trademark infringement generally involves unauthorized use of a mark that is likely identical or similar to yours, which causes confusion among customers about the source or origin of goods. The owner of the mark usually shares the burden of proving that the trademark used by another party is similar enough to confuse their customers.
What is trademark dilution?
Trademark dilution operates differently. It is invoked when someone uses a mark that is similar to yours, which either harms your brand reputation or distorts the association consumers have with it. In legal language, this is known as:
Blurring: Use of a similar mark that weakens the distinctiveness of a famous mark by creating an association with another source.
Tarnishment: Use of a famous mark in a way that creates an association with products or services that harms the mark's reputation.
Under the Trademark Dilution Revision Act, only famous marks that are widely recognized by the general consuming public qualify for federal dilution protection.
Establishing the facts
U.S. trademark law provides meaningful protections against both infringement and dilution, but neither claim is automatic. Infringement requires a demonstrable likelihood of confusion, while dilution requires proving fame and harm to distinctiveness or reputation. Courts scrutinize these facts closely. An attorney experienced in fighting trademark infringement and dilution can help you build a strong case against the infringing party.]]>On Behalf of Cunningham Swaim, LLP<![CDATA[What is tortious interference with a business relationship?]]>https://www.cunninghamswaim.com/?p=482312026-08-17T11:12:14Z2026-08-20T11:11:32ZUnderstanding tortious interference
Texas recognizes tortious interference under common law. These claims usually involve one of two situations. The first involves an existing contract. The second involves a future business relationship that was likely to happen.
These claims are not the same. They have different legal requirements. A lost customer or failed deal does not always mean someone acted unlawfully. Courts look at the facts before deciding whether a claim exists.
What courts may review
Courts may consider whether someone:
Intentionally caused another person to break a contract
Made false statements that damaged a business relationship
Used independently wrongful or unlawful conduct to block a likely business opportunity
Caused financial harm through improper actions instead of fair competition
Texas courts apply different rules to each type of claim. Cases involving existing contracts focus on whether someone intentionally interfered with the agreement and caused damages. Cases involving future business relationships usually require proof that the person used conduct that was independently wrongful or unlawful. The Texas Civil Practice and Remedies Code Section 16.003(a) also sets the time limit for filing certain tort claims. Waiting too long may affect a business's ability to pursue a claim.
Why records are important
Business records can help explain what happened. Contracts, emails, invoices and other documents may show how a relationship developed and when problems began. Good records can also help show the difference between fair competition and conduct that may support a legal claim.
Looking ahead
Not every business dispute is tortious interference. Competition is a normal part of doing business. Still, wrongful conduct that disrupts contracts or likely business opportunities can lead to legal claims. Understanding these basic rules can help business owners make informed decisions when disputes arise. If you have questions about this topic, consider reaching out to a legal professional for guidance.
]]>On Behalf of Cunningham Swaim, LLP<![CDATA[Cunningham Swaim Obtains Defense Verdict in Federal Helicopter Trial; Jury Rejects $42 Million Demand in 37 Minutes]]>https://www.cunninghamswaim.com/?p=482342026-08-17T19:29:03Z2026-08-17T19:24:43ZRomero v. Westwind Helicopters — U.S. District Court, Western District of Louisiana
LAFAYETTE, La. — [August 14, 2026] — A federal jury returned a full defense verdict on liability in favor of Westwind Helicopters on July 31, 2026, rejecting a $42 million demand after 37-minutes of deliberation.
The case, Romero v. Westwind Helicopters, No. 6:23-442, was tried before Judge S. Maurice Hicks in the United States District Court for the Western District of Louisiana. The plaintiff, a telecommunications contractor, was seriously injured when a Bell 407 helicopter transporting him from an offshore platform in the Gulf of Mexico crashed after the pilot suffered an in-flight medical event. The plaintiff claimed that the pilot had experienced an earlier episode approximately 15-minutes before losing consciousness, and that he should have aborted the flight or returned to the platform.
The defense was tried by Ross Cunningham and David Denny of Cunningham Swaim, LLP.
Ross Cunningham – “the demand did not survive contact with the evidence, and it was never going to. Cases like this get settled every day for numbers nobody tests. Our client was resolute to try it, and thirty-seven minutes is what the jury thought of the claim."
The verdict was reported as the lead item in the August 2026 edition of The Louisiana Jury Verdict Reporter (17 LaJVR 8), a neutral publication covering civil jury verdicts across the state.
Multiple Cunningham Swaim partners are members of the American Board of Trial Advocates, an invitation-only organization that admits lawyers on the basis of a verified record of civil jury trials tried to verdict. The firm represents airlines, aircraft manufacturers, operators, maintenance and repair organizations, component suppliers, pilots, mechanics and their insurers in matters involving fixed-wing aircraft, helicopters and unmanned systems.
About Cunningham Swaim, LLP
Cunningham Swaim, LLP is a trial firm representing clients in aviation, insurance defense, business and catastrophic injury litigation, with offices in Texas, California, Colorado, New York, and Utah. The firm's aviation practice specializes in catastrophic wrongful death and personal injury trials, product liability, and insurance coverage.
Read The Louisiana Jury Verdict Reporter Here]]>On Behalf of Cunningham Swaim, LLP<![CDATA[Trademark infringement can damage a successful brand]]>https://www.cunninghamswaim.com/?p=482262026-07-16T12:43:58Z2026-07-16T12:43:58ZConsumers may not know the difference
The main issue with trademark infringement is how consumers might judge because of trademark infringement. Those who buy knock-off products or receive cut-rate services from a company imitating a successful business may blame the successful company for the conduct of the unethical competitor.
In some cases, consumers may contact a company requesting refunds or replacement products. They may leave negative reviews online. They may even make returns to retailers, who may reduce their orders from a successful brand or may stop carrying their products.
Companies can take legal action in response to knock-off products or packaging that uses their trademark without permission. Trademark litigation may lead to an injunction preventing additional infringement or awarding the affected company damages for the harm caused.
Documenting trademark infringement and acting promptly to address it can limit the likelihood of an outside company permanently damaging a brand's reputation. An attorney familiar with intellectual property registration and enforcement actions can help businesses limit the damage caused by trademark infringement and other violations of their intellectual property rights.]]>