IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-50340

WICKFIRE, L.L.C.,

Plaintiff–Appellee,

v.

LAURA WOODRUFF; TRIMAX MEDIA, L.L.C.,

Defendants–Appellants,

v.

WREI, INCORPORATED; JOSH WEST,

Defendants–Third Party Plaintiffs–Appellants,

v. 

JONATHAN CURTIS BROWN; CHESTER LEE HALL,

Third Party Defendants–Appellees.

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 1:14-CV-34

Before OWEN, Chief Judge, and DENNIS and SOUTHWICK, Circuit Judges.

OWEN, Chief Judge:

TriMax Media, L.L.C. appeals a jury verdict in favor of WickFire, L.L.C., 

challenging subject matter jurisdiction and the sufficiency of the evidence. We

United States Court of Appeals

Fifth Circuit

FILED

February 26, 2021

Lyle W. Cayce

Clerk

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affirm the judgment in part and reverse in part.

I

WickFire, L.L.C. and TriMax Media, L.L.C. are competitors “in the payfor-performance search engine marketing business,” a form of internet 

marketing.1 Advertisers such as WickFire and TriMax Media partner with 

merchants on advertising campaigns. In addition to contracting with 

merchants directly, advertisers often connect with merchants through 

intermediary, affiliate networks that have relationships with thousands of 

merchants. Search engines like Google conduct auctions in which advertisers 

can bid for the right to place merchant-specific advertisements alongside 

particular search terms (for Google, these are called “AdWords auctions”). 

Advertisers pay search engines on a cost-per-click basis, meaning they pay the 

search engine every time a user clicks on one of their advertisements. If the 

user thereafter makes a purchase on the merchant’s site, the merchant pays a 

commission to the advertiser.

A series of disputes arose between WickFire and TriMax Media. In 

response, WickFire filed suit against TriMax Media, Laura Woodruff (TriMax

Media’s owner), Josh West (TriMax Media’s director of business development),

and WREI (a company owned by West) (collectively, TriMax). WickFire 

asserted a violation of § 43(a) of the Lanham Act, tortious interference with 

existing contracts, tortious interference with prospective economic 

relationships, and civil conspiracy.

First, WickFire alleged that TriMax committed “click fraud” by 

repeatedly clicking on WickFire’s advertisements without any intention of 

making purchases. Practically speaking, click fraud drives up WickFire’s 

1 Wickfire, LLC v. Woodruff, No. A-14-CA-00034-SS, 2017 WL 1149075, at *1 (W.D. 

Tex. Mar. 23, 2017).

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costs—which as noted, are based on the number of clicks per advertisement—

without any corresponding increase in revenue. Second, WickFire alleged that 

TriMax created false advertisements that were made to appear as though they 

belonged to WickFire. WickFire asserted that advertisements included the 

mark of, and links and references to TheCoupon.co, a WickFire website 

designed to “aggregate[] coupons for . . . online retailers.” Other

advertisements contained WickFire’s unique tracking number (606880), which 

merchants use to identify the source of particular advertisements. According 

to WickFire, the advertisements “violated merchant [and] affiliate network[]

terms and conditions,” thereby interfering with WickFire’s contractual 

relationships with these entities.

In response to WickFire’s claims, TriMax filed their own counterclaims

against WickFire and its cofounders Jonathan Brown and Chet Hall. TriMax 

alleged tortious interference with existing contracts. First, TriMax alleged 

WickFire engaged in predatory bidding during Google AdWords auctions. The 

alleged predatory bidding involved WickFire’s indirect advertising model,

whereby WickFire would link customers not directly to a merchant’s website, 

but to TheCoupon.co (or, when originally testing whether the TheCoupon.co

was a worthwhile venture, to WebCrawler.com, a public website).2 TriMax 

alleged WickFire would place these indirect advertisements directly below 

TriMax advertisements and then bid aggressively during Google AdWords

auctions to drive up the cost-per-click TriMax would pay for their advertising 

space.3 Once TriMax could no longer compete for the space, WickFire would 

purchase the space at auction for a reduced price.4 Second, TriMax alleged 

WickFire had paid “kickbacks to agents to push merchants to terminate” their 

2 See id. at *2 n.4. 3 Id.

4 Id. 

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affiliations with TriMax. WickFire, Brown, and Hall raised a justification 

defense to TriMax’s claim.

The district court held a trial on the merits. The jury awarded WickFire

$1,984,000 in damages on its tortious interference with existing contracts 

claim and $334,000 in damages on its tortious interference with prospective 

business relations claim. With respect to WickFire’s Lanham Act claim, the 

jury found that TriMax “misrepresent[ed] [WickFire] as the source of 

advertisements by placing advertisements containing identifying information 

distinctive of [WickFire] in a manner that was likely to cause confusion,” but 

it did not award any damages. The jury also found that TriMax Media, 

Woodruff, West, and WREI were all “part of a conspiracy that damaged 

[WickFire].” With respect to TriMax’s claim for tortious interference with 

existing contracts, the jury found that WickFire, Hall, and Brown 

“intentionally interfere[d] with one or more of TriMax’s contracts” but “ha[d] a 

colorable right to” do so.

TriMax contested the jury’s verdict in a written motion for judgment as 

a matter of law and a new trial. The district court denied both motions and 

entered judgment in accordance with the jury’s verdict. TriMax appealed.

II

We first consider whether the district court had jurisdiction to entertain 

WickFire’s claims. For the first time in this multi-year litigation, TriMax asks 

this court to dismiss WickFire’s claims for lack of subject matter jurisdiction. 

TriMax contends that subject matter jurisdiction does not exist over WickFire’s 

Lanham Act claim and that consequently there is no basis to exercise 

supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a) over WickFire’s 

state-law tort claims.

Federal courts have jurisdiction over a claim brought under a federal 

statute unless the claim “clearly appears to be immaterial and made solely for 

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the purpose of obtaining jurisdiction” or “is wholly insubstantial and 

frivolous.”5 These exceptions “are narrowly drawn.”6 A claim is wholly 

insubstantial and frivolous if it is foreclosed by previous decisions of the 

Supreme Court.7 The Court’s previous decisions foreclose a claim when the 

“unsoundness” of the claim “so clearly results from the previous 

decisions . . . as to foreclose the subject and leave no room for the inference that 

the questions sought to be raised can be the subject of controversy.”8 

“[P]revious decisions that merely render claims of doubtful or questionable 

merit” do not preclude federal jurisdiction.9

TriMax first alleges WickFire’s Lanham Act claim is foreclosed by the 

Supreme Court’s decision in Dastar Corp. v. Twentieth Century Fox Film 

Corp.10 In Dastar, Fox Film Corporation (Fox) was assigned the copyright to 

the Crusade in Europe (Crusade) television series but did not renew that 

copyright when it expired.11 Years later, the Dastar Corporation (Dastar) 

obtained publicly available tapes of the series, edited them to make a new 

series entitled World War II Campaigns in Europe (Campaigns), and then sold 

Campaigns to consumers without any reference to the original series.12 Fox 

and several Crusade distributors sued Dastar for violation of § 43(a) of the 

Lanham Act,13 which prohibits a person from making, “in connection with any 

goods or services,” a “false designation of origin, false or misleading description 

of fact, or false or misleading representation of fact, which . . . is likely to cause 

5 Bell v. Hood, 327 U.S. 678, 682-83 (1946).

6 Williamson v. Tucker, 645 F.2d 404, 416 (5th Cir. 1981).

7 See Hagans v. Lavine, 415 U.S. 528, 543 (1974) (citing Oneida Indian Nation v. 

County of Oneida, 414 U.S. 661, 666-67 (1974)).

8 Id. at 538 (quoting Ex Parte Poresky, 290 U.S. 30, 32 (1933)).

9 Id.

10 539 U.S. 23 (2003).

11 Id. at 25-26.

12 See id. at 26-27.

13 See id. at 27.

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confusion . . . as to the origin, sponsorship, or approval of his or her goods, 

services, or commercial activities.”14 Fox and the plaintiff-distributors alleged

that by selling Campaigns without any reference to the Crusade series, Dastar 

had made a “false designation of origin, false or misleading description of fact, 

or false or misleading representation of fact, which [was] likely to cause 

confusion . . . as to the origin [of Campaigns].”15

Whether Fox asserted a valid Lanham Act claim against Dastar turned 

on which entity constituted the “origin” of a particular “good” for purposes of 

the Act.16 “If ‘origin’ refer[red] only to the manufacturer or producer of the 

physical ‘good[]’ that [was] made available to the public[,] Dastar was the 

origin,” and Fox’s Lanham Act claim would accordingly fail.17 But if “‘origin’ 

include[d] the creator of the underlying work,” Fox’s Lanham Act claim had 

possible merit.18 In deciding which interpretation was correct, the Court relied 

on the interplay between copyright and patent law on the one hand, and federal 

trademark law on the other.19

Copyright and patent law, the Court indicated, serve markedly different 

functions than federal trademark law. The former are intended to “protect 

originality or creativity,” whereas the latter is not.20 That is, “[f]ederal 

trademark law ‘has no necessary relation to invention or discovery.’”21 It is 

instead concerned with “preventing competitors from copying ‘a sourceidentifying mark’” in a way that harms the various consumers who rely on the 

14 15 U.S.C. § 1125(a)(1)(A).

15 Dastar, 539 U.S. at 31 (internal quotation marks omitted) (quoting § 1125(a)(1)(A)).

16 See id.

17 Id. (emphasis added).

18 Id. (emphasis added).

19 See id. at 33-34, 37.

20 Id. at 37.

21 Id. at 34 (quoting In re Trade–Mark Cases, 100 U.S. 82, 94 (1879)).

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mark and the manufacturer who owns the mark.22 It protects the genuineness

of goods or services, ensuring, inter alia, that consumers are not deceived into 

purchasing inferior products and that a manufacturer’s goodwill is not 

exploited or infringed upon by its competitors.23

The Court concluded that the term “origin of goods” as used in the 

Lanham Act “refer[red] to the producer of the tangible goods that [were] offered 

for sale, and not to the author of any idea, concept, or communication embodied 

in those goods.”24 Accordingly, Fox—the putative “entity that originated the 

ideas or communications” embodied in Dastar’s film—could not sue Dastar for 

violating the Lanham Act merely because Dastar had not provided Fox 

attribution for those original ideas and communications.25 To the extent 

protections for those interests exist, they lie in the law of copyright, not the law 

of trademarks.26

We understand Dastar to stand for the general proposition that one 

cannot shoehorn what essentially amounts to a putative patent violation or a 

putative copyright violation into a Lanham Act claim.27 In other words, there 

22 Id. (noting that trademark law, “by preventing competitors from copying ‘a sourceidentifying mark,’ ‘reduce[s] the customer’s costs of shopping and making purchasing 

decisions,’ and ‘helps assure a producer that it (and not an imitating competitor) will reap

the financial, reputation-related rewards associated with a desirable product” (alterations in 

original) (quoting Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 163-64 (1995))). 23 See id. at 32 (“Section 43(a) of the Lanham Act prohibits actions like trademark 

infringement that deceive consumers and impair a producer’s goodwill. It forbids, for 

example, the Coca–Cola Company’s passing off its product as Pepsi–Cola or reverse passing 

off Pepsi–Cola as its product.”).

24 Id. at 37 (emphasis added).

25 See id. at 32, 38; see also id. at 27 (describing Fox’s allegations “that Dastar’s sale 

of Campaigns ‘without proper credit’ to the Crusade television series constitute[d] ‘reverse 

passing off’ in violation of § 43(a) of the Lanham Act” (emphasis added) (footnote omitted)).

26 See id. at 37.

27 See Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 149 (5th Cir. 2004) (per curiam) 

(“The [Dastar] Court concluded that claims of false authorship and reverse passing off, when 

raised to protect an author’s interest in the intellectual content of communicative products, 

were not actionable under § 43(a) and should instead be pursued under copyright law.” 

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is no cause of action for violating the Lanham Act merely because the “good” 

at issue incorporates the plaintiff’s ideas, concepts, writings, or the like. In 

this way, Dastar addressed, as TriMax asserts, a “false authorship” claim. Fox 

was essentially alleging Dastar had plagiarized the Crusade series.28 In filing 

suit, Fox was seeking to rectify Dastar’s putative failure to credit Fox for its

original ideas.29 But because the suit did not seek to protect the interests that 

prompted the passage of the Lanham Act, Fox’s claim failed.30

The case at bar presents a different situation than that addressed in 

Dastar. WickFire has alleged that TriMax created false advertisements 

appearing to have originated with WickFire in order to, inter alia, harm 

WickFire’s reputational interests in this industry. WickFire is not alleging 

TriMax wrongfully incorporated WickFire’s ideas or concepts into TriMax’s 

advertisements. That is, WickFire is not concerned with protecting an original 

idea or its creative thought, as Fox was attempting to do in Dastar. Instead, 

WickFire is interested in protecting the genuineness of its brand. We cannot 

say, based on Dastar, that WickFire’s claim is frivolous.31

TriMax’s second argument as to why the district court lacked jurisdiction 

to entertain WickFire’s federal claim is that neither WickFire’s unique 

numerical identifier nor the links or references to TheCoupon.co are entitled 

to protection under the Lanham Act. But these arguments principally

challenge the merits of WickFire’s claim—that is, whether WickFire can 

(emphasis added)); accord Gensler v. Strabala, 764 F.3d 735, 737 (7th Cir. 2014) (“Dastar

held that a copyright can’t be extended by using the Lanham Act.”).

28 Dastar, 539 U.S. at 36 (describing Fox’s “reading . . . of the Lanham Act as creating 

a cause of action for, in effect, plagiarism”).

29 See id. at 27.

30 See id. at 37.

31 Cf. Gen. Universal Sys., Inc., 379 F.3d at 149 (concluding Dastar foreclosed the 

plaintiff’s Lanham Act claim because the plaintiff was alleging the defendant had “copied the 

ideas, concepts, structures, and sequences embodied in [the plaintiff’s] copyrighted work”).

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prevail in its cause of action. They do not effectively challenge the jurisdiction

of the district court.32 Generally, district courts have “jurisdiction if ‘the right 

of the [plaintiff] to recover under [his or her] complaint will be sustained if the 

Constitution and laws of the United States are given one construction and will 

be defeated if they are given another.’”33 In other words, the claim need only 

be “colorable” to invoke federal question jurisdiction.34

Here, WickFire alleged that TriMax created fraudulent advertisements 

intended to deceive WickFire’s customers into thinking the advertisements

were created by WickFire. Whether WickFire could have prevailed under that 

theory turned in part on whether WickFire had a protectable mark.35 But 

WickFire need not have conclusively demonstrated the existence of a 

protectable mark to invoke “arising under” jurisdiction. Novel as its claim may 

be, nothing suggests WickFire’s legal theory is so insubstantial or frivolous as 

to affect the district court’s authority to decide this case.36 We thus conclude

the district court had jurisdiction over WickFire’s Lanham Act claim and, 

32 See Fragumar Corp., N.V. v. Dunlap, 685 F.2d 127, 128 (5th Cir. 1982) (“Federal 

jurisdiction is determined not by the ultimate evidence but by the well-pleaded allegations of 

the complaint.” (citing Little York Gold Washing & Water Co. v. Keyes, 96 U.S. 199, 201-02

(1877))).

33 Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 643 (2002) (quoting 

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998)).

34 Arbaugh v. Y & H Corp., 546 U.S. 500, 513 (2006) (“A plaintiff properly invokes 

§ 1331 jurisdiction when she pleads a colorable claim ‘arising under’ the Constitution or laws 

of the United States.” (citing Bell v. Hood, 327 U.S. 678, 681-85 (1946))).

35 See Amazing Spaces, Inc. v. Metro Mini Storage, 608 F.3d 225, 235-36 (5th Cir. 2010)

(noting that to prevail under § 43(a), “[t]he plaintiff must first ‘establish ownership in a 

legally protectible mark, and second, . . . show infringement by demonstrating a likelihood of 

confusion’” (quoting Bd. of Supervisors for La. State Univ. Agric. & Mech. Coll. v. Smack 

Apparel Co., 550 F.3d 465, 474 (5th Cir. 2008))).

36 See Verizon, 535 U.S. at 643 (indicating that subject matter jurisdiction is affected 

if “the claim ‘clearly appears to be immaterial and made solely for the purpose of obtaining 

jurisdiction or where such a claim is wholly insubstantial and frivolous’” (quoting Steel Co., 

523 U.S. at 89)); see also U.S. Patent & Trademark Office v. Booking.com B.V., 140 S. Ct. 

2298, 2301 (2020) (concluding that even “term[s] styled ‘generic.com’” can, in certain 

circumstances, “be eligible for federal trademark registration”).

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accordingly, pendent jurisdiction over each of WickFire’s state-law tort 

claims.37

III

On the merits, TriMax argues they were entitled to judgment as a matter 

of law on each of WickFire’s claims, as well as the justification defense raised 

in response to TriMax’s counterclaim. “Only when ‘a reasonable jury would 

not have a legally sufficient evidentiary basis to find for the party on [a 

particular] issue’ is judgment as a matter of law appropriate.”38 In making 

that determination, we “draw all reasonable inferences and resolve all 

credibility determinations in the light most favorable to the nonmoving 

party.”39 

A

As to the Lanham Act claim, we need not decide whether the evidence 

offered was sufficient as a matter of law. The judgment in this case, although 

acknowledging that TriMax had violated § 43(a) of the Act, did not award 

WickFire damages as to this claim. Consequently, any argument that 

WickFire offered insufficient evidence regarding this claim is moot. Nor does 

the fact that WickFire seeks attorney fees under the Lanham Act affect this 

conclusion. It is true that the Lanham Act permits, under certain 

circumstances, district courts to award “reasonable attorney fees to the 

prevailing party.”40 But as we recently noted in Alliance for Good Government 

37 See 28 U.S.C. § 1367(a).

38 Ill. Tool Works, Inc. v. Rust-Oleum Corp., 955 F.3d 512, 514 (5th Cir. 2020) (quoting 

FED. R. CIV. P. 50(a)); see Flowers v. S. Reg’l Physician Servs. Inc., 247 F.3d 229, 235 (5th Cir. 

2001) (“A motion for judgment as a matter of law . . . in an action tried by jury is a challenge 

to the legal sufficiency of the evidence supporting the jury’s verdict.” (quoting Ford v. 

Cimarron Ins. Co., 230 F.3d 828, 830 (5th Cir. 2000))).

39 Cowart v. Erwin, 837 F.3d 444, 450 (5th Cir. 2016) (quoting Heck v. Triche, 775 F.3d 

265, 273 (5th Cir. 2014)).

40 15 U.S.C. § 1117(a) (emphasis added).

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v. Coalition for Better Government, “a prevailing party [for Lanham Act 

purposes] is ‘a party in whose favor judgment is rendered’ or ‘one who has been 

awarded some relief by the court.’”41 Here, the jury found that there were no 

damages, and WickFire therefore cannot be a prevailing party under the 

Lanham Act. We need not consider TriMax’s contentions that the evidence as 

to WickFire’s Lanham Act claim was insufficient as a matter of law.42

B

Next, we consider TriMax’s contentions that the evidence introduced at 

trial was not legally sufficient to support the judgment as to WickFire’s tort 

claims or WickFire’s and its founders’ justification defense. Because each of 

these contentions is grounded in state law, we “refer to state law for the kind 

of evidence that must be produced to support a verdict.”43

1

To prevail at trial on its tortious interference with contractual relations 

claim, WickFire needed to present sufficient proof of the following: “(1) an 

existing contract subject to interference, (2) a willful and intentional act of 

interference with the contract, (3) that proximately caused the plaintiff’s

injury, and (4) caused actual damages or loss.”44 At the close of WickFire’s 

case, TriMax challenged the proof offered as to each element in an adequate, 

albeit generic, Rule 50(a) motion. TriMax renewed that motion after the jury 

returned its verdict, and before this court again argues the claim was infirm 

41 919 F.3d 291, 295 n.16 (5th Cir. 2019) (quoting Kiva Kitchen & Bath Inc. v. Capital 

Distrib., Inc., 319 F. App’x 316, 322 (5th Cir. 2009)).

42 See Miller v. Travis County, 953 F.3d 817, 822 (5th Cir. 2020).

43 Wackman v. Rubsamen, 602 F.3d 391, 400 (5th Cir. 2010) (quoting Hamburger v. 

State Farm Mut. Auto. Ins. Co., 361 F.3d 875, 884 (5th Cir. 2004)). 44 Prudential Ins. Co. of Am. v. Fin. Rev. Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000)

(citing ACS Invs, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997)).

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as a matter of law. Reviewing de novo, we agree.45

Our review of Texas law46 indicates that to prevail on an interference 

claim, the plaintiff must “present evidence that some obligatory provision of a 

contract [was] breached.”47 Intermediate appellate courts in Texas have, on 

occasion, suggested an actual breach is not required. Relying on those 

decisions, our own court in Cuba v. Pylant noted the following: “Although it 

does not appear that an actual breach must occur, the defendant must have 

intended to induce a breach (even if unsuccessful), thereby making 

performance more difficult in some way that injured the plaintiff.”48

But since Cuba was issued, the Supreme Court of Texas appears to have 

clarified the law in this area. In El Paso Healthcare System, Ltd. v. Murphy, 

the Supreme Court of Texas stated the following: “To prevail on a claim for 

tortious interference with an existing contract, [the plaintiff must] present 

evidence that [the defendant] induced [the plaintiff’s co-contracting party] to 

‘breach the contract,’ and thus interfered with [the plaintiff’s] ‘legal rights 

under the . . . contract.’”49 This unequivocal language leaves little doubt that 

a breach must result from the defendant’s conduct in order for the plaintiff to 

prevail. To induce commonly connotes not merely attempts at interference, but 

45 Heck v. Triche, 775 F.3d 265, 272 (5th Cir. 2014) (“We review de novo the district 

court’s denial of a motion for judgment as a matter of law, applying the same standard as the 

district court.” (quoting Foradori v. Harris, 523 F.3d 477, 485 (5th Cir. 2008))); see also Logan 

v. Burgers Ozark Country Cured Hams Inc., 263 F.3d 447, 457 (5th Cir. 2001) (“We decline to 

adopt an unduly burdensome view of Rule 50 that would require litigants to detail every 

aspect of a case where . . . a general, all[-]encompassing statement will suffice.”).

46 See El Paso Healthcare Sys., Ltd. v. Murphy, 518 S.W.3d 412, 421-22 (Tex. 2017). 47 Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724, 749 (5th Cir. 2019) (quoting 

Better Bus. Bureau of Metro. Houston, Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 361 

(Tex. App.—Houston [1st Dist.] 2013, pet. denied)).

48 814 F.3d 701, 717 (5th Cir. 2016) (citing Fluor Enters., Inc. v. Conex Int’l Corp., 273 

S.W.3d 426, 443 (Tex. App.—Beaumont 2008, pet. denied)).

49 518 S.W.3d at 421-22 (first quoting Holloway v. Skinner, 898 S.W.2d 793, 794-95 

(Tex. 1995); and then quoting Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 

276, 288 (Tex. 1998)).

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actual interference.50 Accordingly, without sufficient proof that the 

defendant’s conduct resulted in “some obligatory provision of a contract 

ha[ving] been breached,” the plaintiff’s tortious interference claim is infirm as 

a matter of law.51

WickFire offered no such proof. As discussed earlier, WickFire connects 

with merchants in one of two ways. First, WickFire directly contracts with 

merchants who are seeking advertising services. These individual, merchantto-advertiser contracts contain terms and conditions requiring WickFire’s 

advertisements to meet certain standards that are specific to each agreement. 

In addition to these merchant-to-advertiser contracts, WickFire also connects

with merchants en masse through affiliate networks. WickFire likewise 

maintains contractual relationships with these intermediary affiliate networks 

that require WickFire’s advertisements to meet certain standards. At trial, 

WickFire argued that TriMax tortuously interfered with both types of 

agreements—those it maintained with individual merchants and those it 

maintained with intermediary affiliate networks.52

In support of its claim, WickFire unquestionably offered sufficient proof 

50 See Induce, MERRIAM–WEBSTER, https://www.merriam-webster.com

/dictionary/induce (last visited Feb. 24, 2021) (defining induce to mean either “to move by 

persuasion or influence” or “to call forth or bring about by influence or stimulation”).

51 Walker, 938 F.3d at 749 (quoting Better Bus. Bureau, 441 S.W.3d at 361); see Duncan 

v. Hindy, 590 S.W.3d 713, 726-28, 729 (Tex. App.—Eastland 2019, pet. denied) (affirming 

summary judgment as to a tortious interference claim because the plaintiff offered 

insufficient proof that a breach resulted from the defendant’s conduct); see also Duradril, 

L.L.C. v. Dynomax Drilling Tools, Inc., 516 S.W.3d 147, 168 (Tex. App.—Houston [14th Dist.]

2017, no pet.) (“[T]o establish the element of a willful and intentional act of interference, the 

plaintiff must produce evidence that the defendant was a more-than-willing participant and 

knowingly induced one of the contracting parties to breach its obligations under the contract. 

To do so, the plaintiff must present evidence that an obligatory provision of the contract was 

breached.” (emphasis added) (internal citations omitted)). 

52 See Wickfire, LLC v. Woodruff, No. A-14-CA-00034-SS, 2017 WL 1149075, at *3 

(W.D. Tex. Mar. 23, 2017) (noting that “Wickfire offered evidence regarding its merchant and 

affiliate network contracts and their corresponding terms and conditions”).

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that TriMax intended to influence WickFire’s relationships with both 

individual merchants and the various intermediary affiliate networks with 

whom WickFire contracted. Nevertheless, WickFire fell short of 

demonstrating that either it or any of its co-contracting parties breached their 

respective obligations to one another as a result of TriMax’s conduct. TriMax’s 

advertisements may have made it appear as though WickFire breached its 

obligations. But there is no indication WickFire actually breached its 

contractual obligations as a result of TriMax’s conduct. Nor is there any 

indication WickFire’s various co-contracting parties failed to comply with their 

respective contractual obligations as a result of TriMax’s conduct. Hall 

testified in conclusory terms that some merchants ceased their affiliations with 

WickFire as a result of TriMax’s conduct. But without pointing to specific 

contractual terms that were supposedly breached, a factfinder could only 

speculate as to whether this conduct in fact amounted to a breach of an 

underlying contractual term.

WickFire’s claim is analogous to the tortious interference claim 

considered by the Supreme Court of Texas in El Paso Healthcare System. 

There, Murphy, the nurse-plaintiff, “worked as an independent practitioner 

under contract with West Texas OB Anesthesia in El Paso.”53 West Texas OB 

maintained a contractual relationship with El Paso Healthcare’s Las Palmas 

Medical Center whereby it would provide medical staff to the medical center 

when needed.54 “Las Palmas would request staffing for particular 

assignments, and West Texas OB would offer those shifts to Murphy and its 

other contractors.”55 A dispute occurred between Murphy and a physician at 

53 518 S.W.3d at 414.

54 See id.

55 Id.

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Las Palmas that prompted Las Palmas to conduct an investigation.56 Las 

Palmas asked that Murphy not to be assigned to the medical center during the 

pendency of the investigation.57

Thereafter, Murphy sued Las Palmas for tortious interference, claiming 

“that [Las Palmas had] interfered with her business relationship with West 

Texas OB by requesting that [she] not be scheduled at Las Palmas while it 

conducted its investigation.”58 The Supreme Court of Texas ultimately 

reversed a jury verdict in Murphy’s favor.59 The court’s analysis turned on the 

fact that “[n]either Las Palmas nor West Texas OB were required to offer 

Murphy any assignments, and she was not required to accept any assignments 

that were offered.”60 “To prevail on a claim for tortious interference with an 

existing contract,” the court noted, “Murphy had to present evidence that [Las 

Palmas] induced West Texas OB to ‘breach the contract,’ and thus interfered 

with Murphy’s ‘legal rights under the . . . contract.’”61 In Murphy’s case, “an 

obligation to provide employment was not a term of Murphy’s existing contract 

with West Texas OB.”62 Murphy’s contract called for payment when she 

worked, but it did not require West Texas OB “to schedule Murphy at Las 

Palmas, or indeed at any hospital.”63 Because Las Palmas’s actions had not 

interfered with Murphy’s contract, Murphy’s tortious interference claim failed 

as a matter of law.64

56 See id. at 415, 420. 

57 See id. 58 Id. at 420.

59 See id. at 421. 

60 Id. at 414.

61 Id. at 421-22 (internal citations omitted) (first quoting Holloway v. Skinner, 898 

S.W.2d 793, 794-95 (Tex. 1995); and then quoting Associated Indem. Corp. v. CAT 

Contracting, Inc., 964 S.W.2d 276, 288 (Tex. 1998)).

62 Id. at 422.

63 Id.

64 See id.

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Like Murphy, WickFire produced evidence that a third party had a 

deleterious financial effect on its bottom line. But as was the case in El Paso 

Healthcare System, the record here fails to indicate that WickFire’s damages

occurred because a co-contracting party breached its agreement with WickFire. 

The record in this case is devoid of any indication that either an individual 

merchant or an affiliate network breached a contractual obligation as a result

of TriMax’s conduct. To the extent an individual merchant or an affiliate

network ceased relying on WickFire for its advertising services because of 

TriMax’s conduct, there is no evidence that these entities were contractually 

required to place advertisements with WickFire. Because there is no evidence 

TriMax’s conduct in fact induced any entity to breach an agreement with 

WickFire, WickFire’s tortious interference with contractual relations claim 

fails as a matter of law.65

2

Next, we consider the evidence offered in support of WickFire’s tortious 

interference with prospective business relations claim. This claim required 

proof of the following five elements:

(1) there was a reasonable probability that the plaintiff would have 

entered into a business relationship with a third party; (2) the 

defendant either acted with a conscious desire to prevent the 

relationship from occurring or knew the interference was certain 

or substantially certain to occur as a result of the conduct; (3) the 

defendant’s conduct was independently tortious or unlawful; 

(4) the interference proximately caused the plaintiff injury; and 

(5) the plaintiff suffered actual damage or loss as a result.66

65 Our conclusion should not be misunderstood as an endorsement of TriMax’s 

conduct. Nor should it be taken as a suggestion that WickFire could never have held TriMax 

liable in tort for this type of conduct. Rather, our conclusion is simply that WickFire’s failure 

to demonstrate specific breaches as a result of TriMax’s conduct precludes a finding of 

liability as to this claim.

66 Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909, 923 (Tex. 2013)

(first citing Wal–Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 726 (Tex. 2001); and then citing 

Bradford v. Vento, 48 S.W.3d 749, 757 (Tex. 2001)).

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Before the district court, TriMax challenged the sufficiency of the evidence as 

to each element in both its Rule 50(a) and Rule 50(b) motions. On appeal, 

TriMax challenges the sufficiency of the evidence as to a number of these 

elements. We pretermit discussion of all but one. Reviewing de novo,67 we 

conclude that the evidence of WickFire’s actual damages is insufficient as a 

matter of law. 

To recover lost profits under Texas law, a party “must do more than show 

that [it] suffered some lost profits”—it must show the amount of profits lost “by 

competent evidence with reasonable certainty.”68 “What constitutes 

reasonably certain evidence of lost profits is a fact intensive determination.”69 

“At a minimum, opinions or estimates of lost profits must be based on objective 

facts, figures, or data from which the amount of lost profits may be 

ascertained.”70 However, “it is not necessary to produce in court the documents 

supporting the opinions or estimates.”71 Although there are a number of valid 

methods for measuring lost profits, “once a party has chosen a particular 

method for measuring [its] lost profits, [the party] must provide a complete 

calculation.”72 “[U]ncertainty as to the fact of legal damages is fatal to 

recovery, but uncertainty as to the amount will not defeat recovery.”73

WickFire’s damages theory for this claim was grounded in the assertions

that TriMax’s tortious conduct delayed the development of TheCoupon.co

website by six months and that WickFire lost $334,000 in profits because of 

67 See Heck v. Triche, 775 F.3d 265, 272-73 (5th Cir. 2014). 68 Szczepanik v. First S. Tr. Co., 883 S.W.2d 648, 649 (Tex. 1994) (citing Tex.

Instruments v. Teletron Energy Mgmt., Inc., 877 S.W.2d 276, 279 (Tex. 1994)).

69 Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex. 1992).

70 Szczepanik, 883 S.W.2d at 649 (citing Holt Atherton, 835 S.W.2d at 84).

71 Holt Atherton, 835 S.W.2d at 84. 72 Id. at 85.

73 Phillips v. Carlton Energy Grp., LLC, 475 S.W.3d 265, 280 (Tex. 2015) (quoting Sw. 

Battery Corp. v. Owen, 115 S.W.2d 1097, 1099 (Tex. 1938)).

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that delay. When WickFire’s damages expert was asked how he calculated 

that dollar figure, the expert said that he had “quantified those damages by 

calculating the amount of profits that [WickFire] lost because of the six-month 

delay.” He did not testify as to how he performed that calculation, nor did he 

point to any data concerning the business generated by TheCoupon.co. This 

evidence is threadbare and conclusory. We accordingly conclude that WickFire

failed to provide a complete calculation showing it lost $334,000 in profits due 

to TriMax’s conduct.

Nor has WickFire presented “legally sufficient evidence to prove a lesser, 

ascertainable amount of lost profits with reasonable certainty.”74 WickFire

provided no method at all for calculating the profits lost due to the delay in 

launching TheCoupon.co. Consequently, the evidence provided by WickFire is

not sufficient to prove with reasonable certainty that WickFire lost any profits 

because of the delay in the launch of this website. Although there is evidence 

in the record that TheCoupon.co was ultimately profitable, that evidence alone 

does not prove with reasonable certainty that WickFire lost profits due to 

TriMax’s conduct. Because the evidence of damages is insufficient as a matter 

of law, we reverse the judgment as it concerns this claim.75

3

We turn now to the civil conspiracy claim. The elements of a civil 

conspiracy under Texas law are as follows:

(1) a combination of two or more persons; (2) the persons seek to 

accomplish an object or course of action; (3) the persons reach a 

meeting of the minds on the object or course of action; (4) one or 

more unlawful, overt acts are taken in pursuance of the object or 

74 ERI Consulting Eng’rs, Inc. v. Swinnea, 318 S.W.3d 867, 877 (Tex. 2010) (concluding

that the plaintiff did not provide sufficient evidence to support “the amount of damages 

awarded by the trial court” but did proffer adequate evidence to prove a lesser amount). 75 Phillips, 475 S.W.3d at 280 (noting that “uncertainty as to the fact of legal damages 

is fatal to recovery” (quoting Sw. Battery Corp, 115 S.W.2d at 1099)).

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course of action; and (5) damages occur as a proximate result.76

But the Supreme Court of Texas has repeatedly emphasized that “civil 

conspiracy [is] a ‘derivative tort,’ meaning it depends on some underlying tort 

or other illegal act.”77 The court’s “use of the word ‘derivative’ in this context 

means a civil conspiracy claim is connected to the underlying tort and survives 

or fails alongside it.”78 Here, each of WickFire’s underlying claims failed.79 

Consequently, the judgment as to this claim must be reversed.

4

Lastly, we consider TriMax’s interference with existing contracts claim,

specifically the sufficiency of the evidence offered in support of WickFire’s, 

Hall’s, and Brown’s justification defense. TriMax challenged the sufficiency of 

the evidence as to this defense in its Rule 50(a) motion. However, they did not 

move for judgment as a matter of law on this issue under Rule 50(b), instead 

seeking relief pursuant to Rule 59. In at least one unpublished opinion, we 

concluded a litigant’s sufficiency-of-the-evidence arguments were preserved for 

appeal in these circumstances.80 But we need not decide whether the same 

result should attach here. Even assuming TriMax’s arguments are entitled to 

de novo review, there was sufficient evidence to support the jury’s verdict.

Under Texas law, “the affirmative defense of justification can be based 

on the exercise of . . . a good-faith claim to a colorable legal right, even though 

76 First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 222 (Tex. 

2017) (citing Tri v. J.T.T., 162 S.W.3d 552, 556 (Tex. 2005)). 77 Agar Corp. v. Electro Circuits Int’l, LLC, 580 S.W.3d 136, 140-41 (Tex. 2019) (first 

citing Chu v. Hong, 249 S.W.3d 441, 444 (Tex. 2008); and then citing Tilton v. Marshall, 925 

S.W.2d 672, 681 (Tex. 1996)).

78 Id. (citing NME Hosps., Inc. v. Rennels, 994 S.W.2d 142, 148 (Tex. 1999)). 79 See id. at 142 (“Civil conspiracy requires an underlying tort that has caused 

damages.” (citing Tilton, 925 S.W.2d at 681)).

80 See Groden v. Allen, 279 F. App’x 290, 292-93 (5th Cir. 2008) (per curiam).

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that claim ultimately proves to be mistaken.”81 Here, we see nothing to 

indicate WickFire’s putative “kickbacks” or its bidding practices were illegal or 

tortious, which would, under Texas law, preclude the defense as a matter of 

law.82 The jury also heard ample evidence to support its verdict.

WickFire presented testimony that Google conducts thorough 

investigations of alleged wrongdoing; that WickFire had been investigated for 

allegedly problematic bidding practices in the past; and that WickFire had 

never been told that its practices were problematic or unethical. There is 

likewise evidence in the record suggesting Google recommended merchants 

work with WickFire and evidence that Google made WickFire one of its 

“premier partner[s].” Of course, Google is not the “ultimate arbiter” of what 

conduct is legal or illegal. Likewise, Google’s investigations may have only 

considered whether WickFire’s bidding practices relating to 

WebCrawler.com—not TheCoupon.co—were within Google’s standards. But 

the evidence taken in the light most favorable to WickFire supports the 

conclusion that WickFire believed itself to be operating within the bounds of 

the law during Google’s auctions. 

We note that it is not clear whether the jury’s verdict was premised on 

alleged kickbacks or alleged predatory bidding. But in light of our conclusion 

that at least one of WickFire’s justification-defense theories was supported by 

sufficient evidence, we need not consider WickFire’s alternative justification 

theory, namely that the putative “kickbacks” were actually a proper business 

development strategy. Even assuming WickFire did not present sufficient 

evidence to support this alternative defense, the verdict must stand. We “trust 

81 Cmty. Health Sys. Prof’l Servs. Corp. v. Hansen, 525 S.W.3d 671, 697 (Tex. 2017)

(citing Prudential Ins. Co. of Am. v. Fin. Rev. Servs., Inc., 29 S.W.3d 74, 80 (Tex. 2000)).

82 See id. (“The defense does not apply when the interference is by illegal or tortious 

means, such as misrepresentation or fraud.” (citing Prudential, 29 S.W.3d at 81)).

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the jury to have sorted the factually supported from the [allegedly] 

unsupported.”83 Accordingly, TriMax is not entitled to judgment as a matter 

of law on WickFire’s justification defense.

* * *

TriMax’s motion to dismiss is DENIED. The district court’s judgment is 

REVERSED as to WickFire’s tortious interference claims and its civil 

conspiracy claim. The judgment is AFFIRMED in all other respects. The case 

is REMANDED for further proceedings consistent with this opinion.

83 Nester v. Textron, Inc., 888 F.3d 151, 160 (5th Cir. 2018) (noting that “a jury verdict 

may be sustained even though not all the theories on which it was submitted had sufficient 

evidentiary support” (quoting Prestenbach v. Rains, 4 F.3d 358, 361 n.2 (5th Cir. 1993))).

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