DALLAS – A wireless and business technology company has filed for a rehearing in a $41 million malpractice suit against the law firm that represented them in a patent case.

Axcess International Inc. filed the rehearing motion with the Texas Supreme Court against Baker Botts LLP following a ruling by a lower court that its $41 million malpractice case would result in no settlement. Axcess has requested that the Texas Supreme Court rehear its case arguing that Baker Botts committed a “breach of fiduciary duty and fraudulent non-disclosure.”

Axcess is alleging Baker Botts, which represented it in a patent case, also represented its competitor Savi in a similar patent case. Axcess alleges this was a conflict of interest by Baker Botts and was seeking a $41 million settlement in the initial suit.

Axcess originally hired Baker Botts to represent it in a case where it was seeking patent protection for its dual frequency invention as part of the radio frequency identification market. According to the motion filed, Baker Botts also was hired by Axcess competitor Savi for an invention that was allegedly “virtually identical” to Axcess’ product.

The trial court in the case found that Axcess should have filed the suit three years earlier, and entered a judgment in favor of Baker Botts. Axcess appealed the decision to the Fifth District Court of Appeals, which refused to hear the case based on Axcess’ lack of causation.

In its motion to rehear, Axcess cited that it had sufficient evidence to show that Baker Botts prevented it from winning the patent case as it had expert testimony to back up its allegations that it was entitled to the patents that Savi sought. Axcess alleges Baker Botts’ actions prevented it from prevailing in the case. It also argued that it lost out significantly because of the alleged misconduct by Baker Botts and its loss of licensing fees that would have been paid by Savi had it prevailed with its patents.

Axcess argued that the appeals courts should have motioned for a new trial rather than providing an all or nothing judgement if they thought the damages were insufficient and hence filed the motion for rehearing.

Baker Botts says its actions were completely ethical in Axcess’ case and that the ruling in its favor by the courts proves just this. “Baker Botts believes that the trial court’s judgment in favor of Baker Botts and affirmed by the Dallas Court of Appeals was correct in all respects, as was the Texas Supreme Court’s denial of the petition for review,” Stephen Hastings, spokesperson for Baker Botts told the Southeast Texas Record. “Accordingly, the firm believes that the motion for rehearing is without merit. Our firm lived up to the highest ethical standards and the claims asserted against the firm were unjust and rightly decided in our favor.”

Baker Botts is a global law firm with offices around the world. It was represented by attorneys Paul M Koning and Brent E. Basden of Koning Rubarts LLP and by Murray Foggler, Jas Brar, and Michelle Gray of Flogler Brar Ford O’Neil & Gray. Axcess International’s legal counsel includes Jon Suder, Michael Cooke, and Glenn Orman of Friedman Suder & Cooke, and Steve Aldous of Forshey & Prostok LLP.

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