IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-11194

Summary Calendar

PHONETERNET, L.L.C., doing business as Maestro, 

 Plaintiff–Appellant,

v.

LEXISNEXIS RISK SOLUTIONS, INCORPORATED; RELX, 

INCORPORATED, 

 Defendants–Appellees.

Appeal from the United States District Court 

for the Northern District of Texas

No. 3:18-CV-1719

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

PER CURIAM:*

The case is about alleged inaccuracies in a business data report 

maintained by the defendant, LexisNexis Risk Solutions, Inc. (LexisNexis). 

The plaintiff, Phoneternet, L.L.C. (Phoneternet), argues that LexisNexis’s 

failure to fix the errors promptly in LexisNexis’s business data report caused 

Phoneternet to lose a lucrative business contract with the Lexus Division of 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 3, 2020

Lyle W. Cayce

Clerk

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Toyota Motor Corporation (Toyota). Phoneternet sued LexisNexis and its 

parent company, RELX, in state court. After removal and several rounds of 

amendments to the complaint, the district court dismissed Phoneternet’s 

claims pursuant to Rule 12(b)(6). Phoneternet now appeals part of that 

dismissal. We affirm.

I

In early 2017, Phoneternet was in negotiations with Toyota to provide 

its personal assistant service, “MyStar,” for use in Toyota’s Lexus Division. 

According to Phoneternet, Toyota was prepared to sign a multimillion-dollar 

agreement for the service. “The only caveat before signing the agreement [was] 

whether [Phoneternet] had a clean business report as reviewed by Toyota’s 

procurement department.” 

Toyota requested a business report on Phoneternet from LexisNexis. 

The report was not favorable to Phoneternet. Indeed, the report rated 

Phoneternet as being high risk. In June 2017, Toyota told Phoneternet that it

“needed to address the business credit report[] in order to proceed with

the . . . contract.” Toyota asked Phoneternet to “reach back out” after it 

“worked out any potential changes” in the report.

Slightly more than one month later, Phoneternet sent a letter to 

LexisNexis “identifying and correcting fifteen . . . separate discrepancies and 

errors” in the report. In October 2017, Phoneternet received a letter from 

LexisNexis, stating that LexisNexis had “modified the data as requested.” 

Phoneternet claims that this statement was false; LexisNexis had only 

changed one of the fifteen discrepancies Phoneternet had identified in its 

earlier letter. After receiving this letter from LexisNexis, Phoneternet started 

calling the LexisNexis Small Business Advocacy Center—at least three times 

a week—requesting that the information be corrected. According to 

Phoneternet, the LexisNexis customer service team as well as managers and 

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supervisors assured Phoneternet that the “information would be updated in 

the database.” Phoneternet claims that it was told “more than once that the 

issue of Phoneternet’s data had been passed upon by senior decision makers at 

LexisNexis and would be fixed promptly.” 

In early January 2018, Phoneternet sent a final letter to LexisNexis 

requesting that LexisNexis “rectify its mistakes.” That next month, 

LexisNexis sent a letter to Phoneternet directed towards Phoneternet’s

managing director, with only one change made in the entire report. According 

to Phoneternet, LexisNexis “continued to stand by [its] data [even] after 

[Phoneternet’s] multiple attempts” to have the data fixed. Indeed, Phoneternet 

claims that, as of January 2019, LexisNexis still had not made the requested 

changes to Phoneternet’s business report.

Phoneternet sued LexisNexis and its parent company, RELX, asserting, 

among other things, causes of action for negligence, gross negligence, malice, 

tortious interference with prospective business relations, business 

disparagement, negligent misrepresentation, promissory estoppel, and 

negligent breach of special duty. After several amendments by Phoneternet, 

the district court dismissed all of Phoneternet’s claims. Phoneternet appeals 

only the dismissal of its claims against LexisNexis for negligence, negligent 

misrepresentation, tortious interference with prospective business relations, 

and promissory estoppel. Phoneternet does not appeal the dismissal of any of 

its claims as they relate to LexisNexis’s initial publication of the allegedly false 

report. Rather, Phoneternet only appeals its claims as they relate to 

LexisNexis’s failure to correct the allegedly incorrect data. Phoneternet seeks

both monetary damages and injunctive relief.

II

Phoneternet presents four main arguments on appeal. First, 

Phoneternet argues that the district court erred in dismissing its claims for

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negligent misrepresentation and promissory estoppel. Second, Phoneternet

argues that the district court erred in dismissing its negligence claim. 

Specifically, Phoneternet argues that the district court erred in concluding that 

there is no duty under Texas law requiring a business credit reporting agency 

to correct allegedly inaccurate business reports when the company that is the 

subject of the report has notified the agency of the alleged inaccuracies. Third, 

Phoneternet argues that this court should certify the question of whether a 

duty exists under the circumstances outlined in its second argument to the 

Supreme Court of Texas. Finally, Phoneternet argues that the district court 

erred in dismissing its claim for tortious interference with prospective business 

relations and in denying its request for injunctive relief. 

A

We turn first to Phoneternet’s claims for negligent misrepresentation 

and promissory estoppel, reviewing the district court’s dismissal of each claim 

de novo.1 The district court dismissed both claims after determining, among 

other things, that Phoneternet’s “reliance on any statement by LexisNexis that 

it had or would correct certain alleged inaccuracies was not justified.” On 

appeal, Phoneternet argues that the district court mischaracterized its 

allegations and relied on an improper evidentiary standard in dismissing the 

claims. After careful review, we conclude that the district court properly 

dismissed both claims.

Under Texas law, both negligent representation and promissory estoppel 

require “reasonable and justified” reliance by the plaintiff on a statement or 

representation made by the defendant.

2 Here, Phoneternet alleges that it 

1 See Budhathoki v. Nielson, 898 F.3d 504, 507 (5th Cir. 2018) (citing Wampler v. Sw.

Bell Tel. Co., 597 F.3d 741, 744 (5th Cir. 2010)). 

2 Ortiz v. Collins, 203 S.W.3d 414, 421 (Tex. App.—Houston [14th Dist.] 2006, no pet.); 

see Davis v. Tex. Farm Bureau Ins., 470 S.W.3d 97, 108 (Tex. App.—Houston [1st Dist.] 2015, 

no pet.) (discussing how a promise, for purposes of a promissory estoppel claim, “must be 

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relied on LexisNexis’s alleged statement that the data in the business report 

had been “modified . . . as requested” and LexisNexis’s alleged statement that 

it would “correct the erroneous data promptly.”

Phoneternet’s subsequent actions and later communications with 

LexisNexis belie any claim that Phoneternet reasonably and justifiably relied 

on LexisNexis’s statement that the alleged errors in Phoneternet’s business 

report had been “modified . . . as requested.” Shortly after LexisNexis’s alleged 

statement that the errors in the report had been “modified . . . as requested,” 

Phoneternet started calling LexisNexis requesting that the errors in the report 

be corrected. In fact, Phoneternet claims that it received several assurances 

from various LexisNexis personnel that the remaining errors would be 

corrected during these calls. 

If Phoneternet believed the errors had already been corrected, there 

would have been no reason for Phoneternet to repeatedly call LexisNexis. In 

that case, Phoneternet would be asking LexisNexis to correct already accurate 

information. Moreover, to the extent Phoneternet did rely on LexisNexis’s 

alleged statement that all fifteen errors in the report had been “modified . . . 

as requested,” such reliance cannot be considered reasonable and justified. 

Given the alleged importance of this report—the only remaining obstacle 

between Phoneternet and a lucrative multimillion-dollar contract with 

Toyota—Phoneternet should have at least confirmed that the errors had been 

corrected before blindly relying on LexisNexis’s representation. Further, it 

was unreasonable for Phoneternet to rely on LexisNexis’s earlier 

sufficiently specific and definite so that it would be reasonable and justified for the promisee 

to rely on it as a commitment to future action.” (citing Comiskey v. FH Partners, LLC, 373 

S.W.3d 620, 635 (Tex. App.—Houston [14th Dist.] 2012, pet. denied)); Grant Thornton LLP 

v. Prospect High Income Fund, 314 S.W.3d 913, 923 (Tex. 2010) (first citing Ernst & Young, 

L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001); and then citing Fed. Land 

Bank Ass’n v. Sloane, 825 S.W.2d 439, 442 (Tex. 1991)).

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representation that the business report had been “modified . . . as requested,” 

after the multiple calls to LexisNexis. According to Phoneternet, LexisNexis 

assured Phoneternet in these calls that the errors in the report would be 

corrected. At this point, Phoneternet should have known that LexisNexis had 

not modified all the alleged errors in the report as Phoneternet had earlier 

requested.

Nor could Phoneternet have reasonably and justifiably relied on 

LexisNexis’s alleged promise that it would “correct the erroneous data 

promptly.” Phoneternet claims that it relied on LexisNexis’s assurances that 

the remaining errors in the business report would be fixed “promptly” by not 

“prepar[ing] an independent report” or “reparative presentation” for Toyota. 

But such reliance cannot be considered reasonable. First, it was unreasonable 

for Phoneternet to continue to rely on LexisNexis’s alleged promises to fix the 

errors in the business report after months of alleged inaction by LexisNexis. 

Second, regardless of LexisNexis’s continued assurances that the errors would 

be corrected, it was unreasonable for Phoneternet not to present an 

“independent report” or “reparative presentation” for Toyota. This is especially 

true comparing the relative cost of preparing such a report to the size of the 

alleged contract with Toyota—approximately six million dollars.

Thus, because Phoneternet did not reasonably and justifiably rely on 

either of LexisNexis’s alleged representations, Phoneternet’s claims for 

negligent misrepresentation and promissory estoppel both fail.3

B

Phoneternet’s second argument on appeal concerns its negligence claim. 

The district court dismissed that claim, concluding that “LexisNexis owed no 

3 See FED. R. CIV. P. 12(b)(6); see also Ortiz, 203 S.W.3d at 421 (noting that, under 

Texas law, “reasonable and justified” reliance is required for claims of both negligent 

misrepresentation and promissory estoppel). 

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duty under Texas law as urged by Phoneternet to promptly correct alleged 

inaccuracies in the business data maintained by LexisNexis upon 

Phoneternet’s request.” Phoneternet now argues that this court should

recognize a common law duty under Texas law requiring a business credit 

reporting agency to correct allegedly false data in a commercial business report

when the company that is the subject of the report has notified the agency of 

the alleged inaccuracy. Under the Erie doctrine, federal courts are required to 

follow state law and are generally prohibited from making new substantive 

state-law common law rules.4 Thus, this court cannot recognize, as 

Phoneternet requests, a new common law duty under Texas law to correct 

allegedly false data in a commercial business report. For these reasons, we 

deny Phoneternet’s request to recognize a new duty under Texas common law 

and affirm the district court’s dismissal of Phoneternet’s negligence claim. 

III

In its third argument on appeal, Phoneternet asks this court to certify 

the following question to the Supreme Court of Texas:

Under Texas law, does a business credit reporting agency have a 

duty to correct erroneous business credit information when the 

business entity on which an erroneous report has been made has 

notified the agency of the errors (with proof) and requested 

correction?

“The decision of whether to certify a question lies within our sound 

discretion.”5 In this case, Phoneternet points to no cases that would make 

certification advisable.6 Therefore, we decline Phoneternet’s request.

4 See Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).

5 In re Deepwater Horizon, 807 F.3d 689, 698 (5th Cir. 2015) (quoting Patterson v. 

Mobil Oil Corp., 335 F.3d 476, 487 (5th Cir. 2003)).

6 See Gibson v. Kilpatrick, 838 F.3d 476, 488 (5th Cir. 2016). 

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IV

Phoneternet’s final argument on appeal concerns its claim for tortious 

interference with prospective business relations and its request for injunctive 

relief. Under Texas law, tortious interference with prospective business 

relations requires a defendant’s conduct to be independently tortious or 

unlawful.7 Similarly, to succeed on a request for injunctive relief, a plaintiff 

must show a substantial likelihood of success on the merits.8 As discussed 

above, in this case, Phoneternet has failed to allege adequately an independent 

tort or any other meritorious claim. Thus, Phoneternet cannot meet the 

requirements for its tortious interference with prospective business relations 

claim or the requirements for its request for injunctive relief. The district court 

did not err in dismissing Phoneternet’s tortious interference claim or in 

denying Phoneternet’s request for injunctive relief. 

* * *

For these reasons, we AFFIRM the district court’s judgment.

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

8 See, e.g., Clark v. Prichard, 812 F.2d 991, 993 (5th Cir. 1987); Canal Auth. of the 

State of Fla. v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974). 

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