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Before HAYNES, HO, and DUNCAN, Circuit Judges.
Questions CERTIFIED. (November 13, 2018).
Judge DUNCAN concurred.
Judge HO concurred.
As the Texas Sales Representative Act provides, a principal who fails to pay a commission is liable for “three times the unpaid commission due the sales representative,” as well as for reasonable attorney’s fees and costs. TEX. BUS. & COM. CODE § 54.004. The Fifth Circuit certifies certain issues to the Supreme Court of Texas to determine at what moment in time courts should identify the “unpaid commission due,” and therefore subject to treble damages, under TEX. BUS. & COM. CODE § 54.004. In that connection, the Fifth Circuit certifies the following questions of law to the Supreme Court of Texas:
(1) What timing standard should courts use to determine the existence and amount of any “unpaid commissions due” under the treble damages provision of TEX. BUS. & COM. CODE § 54.004(1)?
(2) May a plaintiff recover reasonable attorney’s fees and costs under TEX. BUS. & COM. CODE § 54.004(2), if the plaintiff does not receive a treble damages award under TEX. BUS. & COM. CODE § 54.004(1), and under what conditions?
On Appeal from the United States District Court for the Western District of Texas (Robert L. Pitman).
Attorney for Appellant – Richard M. Goldwasser, Chicago, IL
Attorney for Appellee – Tyler Bass Talbert, Waco, TX