Clear Touch Interactive, Inc. v. The Ockers Company

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 1, 2026
• Docket: 25-1374
• Status: Published

Opinion

USCA4 Appeal: 25-1374 Doc: 55 Filed: 04/01/2026 Pg: 1 of 38

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 25-1304

CLEAR TOUCH INTERACTIVE, INC.,

Plaintiff - Appellant,

v.

THE OCKERS COMPANY; JOHN J. HOUSER; JASON HOUSER; TOUCHVIEW INTERACTIVE, INC.,

Defendants - Appellees.

No. 25-1374

THE OCKERS COMPANY; JOHN J. HOUSER; JASON HOUSER; TOUCHVIEW INTERACTIVE, INC.,

Appeal from the United States District Court for the District of South Carolina, at Greenville. Kevin Frank McDonald, Magistrate Judge. (6:21-cv-02208-KFM)

Argued: January 30, 2026 Decided: April 1, 2026 USCA4 Appeal: 25-1374 Doc: 55 Filed: 04/01/2026 Pg: 2 of 38

Before WYNN, HARRIS, and RUSHING, Circuit Judges.

Affirmed by published opinion. Judge Wynn wrote the opinion, in which Judge Harris joined. Judge Rushing wrote a separate opinion concurring in part and dissenting in part.

ARGUED: Joseph Owen Smith, SMITH HUDSON LAW, LLC, Greenville, South Carolina, for Appellant. Gregory J. English, WYCHE, P.A., Greenville, South Carolina, for Appellees. ON BRIEF: Joshua J. Hudson, SMITH HUDSON LAW, LLC, Greenville, South Carolina; John R. Perkins, Jr., PERKINS LAW FIRM, LLC, Greenville, South Carolina; Steven E. Buckingham, THE LAW OFFICE OF STEVEN EDWARD BUCKINGHAM, Greenville, South Carolina, for Appellant. Wallace K. Lightsey, James E. Cox, Jr., Graham M. Pitman, WYCHE, P.A., Greenville, South Carolina, for Appellees.

2 USCA4 Appeal: 25-1374 Doc: 55 Filed: 04/01/2026 Pg: 3 of 38

WYNN, Circuit Judge:

In state court, the Ockers Company (“Ockers”) sued Clear Touch Interactive, Inc.

(“Clear Touch”) for breach of contract. The parties settled that case and agreed to dismiss

all possible counterclaims that could have been brought in that litigation. But just weeks

later, Clear Touch brought intellectual-property claims against Ockers in federal court.

At summary judgment, the district court found that those claims were barred by the

wide scope of the settlement agreement. We agree and thus affirm. For reasons stated

below, we also affirm the various other orders raised on appeal.

I.

A.

Because the primary orders on appeal were at summary judgment, we recite the

facts in the light most favorable to Clear Touch, the nonmovant.

Clear Touch designs and manufactures interactive technology products. Beginning

in 2014, Clear Touch entered into reseller agreements with Ockers granting Ockers the

exclusive right to sell, lease, install, and service its Clear Touch panels within certain

designated territories throughout the United States.

In 2017, Clear Touch changed the terms of those agreements, revoking Ockers’s

exclusivity rights to sell within its territories. Shortly thereafter, Ockers owner John Houser

and his son began developing a competing product to Clear Touch; they called it

“TouchView.”

In 2019, Clear Touch terminated Ockers as a reseller.

3 USCA4 Appeal: 25-1374 Doc: 55 Filed: 04/01/2026 Pg: 4 of 38

B.

In 2020, Ockers sued Clear Touch in state court in South Carolina. Ockers asserted

claims for breach of contract of the reseller agreements, breach of contract accompanied

by a fraudulent act, tortious interference with prospective contractual relations, violations

of the South Carolina Trade Secrets Act, defamation, violations of the South Carolina

Unfair Trade Practices Act (“SCUTPA”), and civil conspiracy.

Clear Touch attempted to remove that action to federal court on the basis of diversity

jurisdiction. See Ockers Co. v. Clear Touch Interactive, Inc., No. 6:21-cv-776, 2021 WL

1827181, at *1 (D.S.C. May 7, 2021). However, in a conversation between attorneys in

that case, Clear Touch informed Ockers counsel Rita Bolt Barker that it also wanted the

litigation in federal court in part because Clear Touch “intend[ed] to assert multiple

intellectual property counterclaims, which would give rise to federal question jurisdiction.”

J.A. 200; J.A. 1135–37. 1

But the district court ultimately remanded the action to state court. Ockers Co., 2021

WL 1827181, at *4.

With the help of mediation on June 2, 2021, the parties agreed to settle the state-

court action. They executed a settlement agreement, which contained several important

provisions.

As relevant on appeal, the parties agreed to “release one another of any and all

claims brought or which could have been brought, known or unknown, arising out of or

1 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal. 4 USCA4 Appeal: 25-1374 Doc: 55 Filed: 04/01/2026 Pg: 5 of 38

relating to the subject matter of this lawsuit.” J.A. 216. The parties further agreed that “the

case is to be dismissed with prejudice.” Id. In a handwritten portion after this phrase, the

parties wrote that the dismissed claims “includ[ed] all possible claims and counterclaims.”

Id. Finally, Clear Touch agreed to modify the terms of its agreement with a different

reseller, Pro AV, such that Pro AV would not be able to resell Clear Touch products in

Massachusetts during the 2022 calendar year.

Two weeks later, on June 15, 2021, Clear Touch and Ockers executed a more

detailed agreement that incorporated the prior settlement agreement by reference and

spelled out the release more clearly.

First, the parties agreed to mutually release their claims. Specifically, Clear Touch

agreed in Paragraph 3(b) to

release and discharge [Ockers] and each of [its] representatives, predecessors, successors, current and former employees, agents, officers, directors, managers, principals, shareholders, assignees, attorneys, insurers, customers and end users . . . of and from any and all claims, demands, damages, debts, liabilities, accounts, reckonings, obligations, costs, expenses, liens, equitable relief, attorneys’ fees, actions and causes of action of every kind and nature whatever, arising out of or relating to the subject matter of the Litigation prior to the Effective Date of this Agreement, known and unknown.

J.A. 211.

Separately, however, the parties also agreed in Paragraph 4 to, within three business

days, “jointly file a stipulation of dismissal pursuant to South Carolina Rule of Civil

Procedure 41(a)(1) dismissing with prejudice all possible claims and counterclaims that

have or could have been brought against any Party as part of the Litigation.” Id.

5 USCA4 Appeal: 25-1374 Doc: 55 Filed: 04/01/2026 Pg: 6 of 38

Despite signing that agreement, Clear Touch later refused to sign a dismissal of all

possible counterclaims in state court. Instead, just three weeks later, Clear Touch sent a

“Notice of Infringement of Registered Trademarks” to Houser on July 6, 2021. J.A. 218.

In response, on July 16, 2021, Ockers filed a motion in the state-court action to

enforce the settlement agreement—specifically, its provision compelling Clear Touch to

agree to file a dismissal of all possible counterclaims in the state-court action.

While that motion was pending, Clear Touch filed the present lawsuit in federal

court on July 20, 2021, asserting various intellectual-property claims against Ockers,

Houser, his son, and TouchView Interactive, Inc. (collectively, the “Ockers Defendants”).

On initial review of the motion to enforce the settlement agreement, the state court

noted that it looked like “Clear Touch has got buyer’s remorse,” and “if [Clear Touch] is

now suing Ockers, and they could have brought these claims in the State Court action, then

it looks like this agreement would encompass those claims at least as it relates to Ockers.”

J.A. 1122, 1131. The state court later entered an order dismissing the state-court action

with prejudice, “including all possible claims and counterclaims that have or could have

been brought against any Party as part of this action.” J.A. 617.

C.

Clear Touch’s federal action centered primarily on the alleged infringement of their

intellectual property when the Ockers Defendants created a rival brand in TouchView. In

its complaint, Clear Touch alleged not just past infringement of Clear Touch’s marks but

“willful and intentional conduct of ongoing infringement and other Lanham Act violations,

which have caused, and continue to cause, irreparable injury to Clear Touch, Clear Touch’s

6 USCA4 Appeal: 25-1374 Doc: 55 Filed: 04/01/2026 Pg: 7 of 38

customers, and the general public and [sought] to enjoin Defendants’ future infringement.”

J.A. 298 (emphasis added).

The Ockers Defendants answered the complaint and asserted several counterclaims,

many of which it had brought earlier in the state-court action.

The Ockers Defendants then moved for judgment on the pleadings, arguing that the

prior settlement agreement’s releases and the res judicata effect of the state court’s

dismissal of “all possible counterclaims” barred Clear Touch’s claims in this suit from

going forward. The district court partially agreed.

First, it found that, at least at the pleading stage, the claims against TouchView

Interactive, Inc., were not necessarily barred by the settlement agreement, because that

agreement did not name TouchView Interactive, Inc., as a party.

Second, the district court found that many of the claims—breach of the reseller

agreement, unjust enrichment, conversion, tortious interference, and misappropriation of

trade secrets—were covered by the release language in the settlement agreement and were

therefore barred. However, it also found that the release language did not cover the

trademark and dilution claims under the Lanham Act.

Finally, it considered the argument that res judicata separately barred Clear Touch

from bringing its Lanham Act claims. But it ultimately found that the intent of the parties

was not to include such claims in their agreement and allowed them to proceed “at this

time.” J.A. 646. The district court stuck by its ruling even on reconsideration but reminded

the parties that Rule 54(b) of the Federal Rules of Civil Procedure allowed its decision to

7 USCA4 Appeal: 25-1374 Doc: 55 Filed: 04/01/2026 Pg: 8 of 38

“be revised at any time before the entry of a judgment adjudicating all the claims and all

the parties’ rights and liabilities.” J.A. 13, at Dkt. No. 47 (quoting Fed. R. Civ. P. 54(b)).

The Ockers Defendants amended their counterclaims, and Clear Touch moved for

judgment on the pleadings. The district court granted that motion in part, finding (after

reconsideration) that two of the five counterclaims were released in the settlement

agreement. What remained were three counterclaims: breach of the settlement agreement,

breach of the settlement agreement accompanied by a fraudulent act, and violation of

SCUTPA, at least “to the extent it is grounded upon alleged breaches of the Settlement

Agreement,” and not the reseller agreements. J.A. 29, at Dkt. No. 158.

Following discovery, on August 26, 2024, this case was transferred by consent to

Magistrate Judge Kevin McDonald.

The Ockers Defendants then filed two separate motions for summary judgment.

First, Ockers Defendant TouchView Interactive, Inc., filed an individual motion for

summary judgment that argued that it was a mere shell organization that existed only on

paper and, thus, that it did not actually own any trademarks or direct any activity that could

infringe on another’s intellectual property rights.

Separately, the other Ockers Defendants (Ockers and the Housers) moved for

summary judgment on the grounds that all of Clear Touch’s claims were barred by res

judicata because Clear Touch could have brought the claims as counterclaims in the state-

court action, and the state court had already dismissed all possible counterclaims in that

action.

8 USCA4 Appeal: 25-1374 Doc: 55 Filed: 04/01/2026 Pg: 9 of 38

Judge McDonald granted TouchView’s motion in full, agreeing that there was no

evidence in the record that any of the Ockers business had been transferred to TouchView

Interactive, Inc.

But he initially largely denied the other Defendants’ motion. 2 In particular, the court

found that res judicata did not bar Clear Touch from asserting its claims in this action

because the release language in the settlement agreement applied only to claims “arising

out of or relating to the subject matter of the [prior state] Litigation.” J.A. 2545.

D.

So, the parties readied themselves for trial.

Two motions in limine ahead of trial are relevant on appeal. First, the Defendants

moved to exclude former Ockers employee Paul Diiorio from testifying at trial because

Clear Touch had disclosed him as a potential witness too late. Second, Clear Touch moved

to exclude Ockers counsel Barker from testifying at trial because her dual role as counsel

and witness would confuse the jury.

The district court scheduled both jury selection and a hearing on the motions in

limine for November 25, 2024, with trial to start the following Monday.

On November 25, the jury was fully impaneled. The court then took up the motions

in limine, noting sua sponte that the motion in limine regarding Barker “necessarily touches

on the issue of res judicata, which has been raised.” J.A. 2608. The court also noted that

really “res judicata is something to be decided by the Court” and that under Rule 54(b) it

The other Defendants’ one victory was the district court granting it summary 2

judgment on trademark dilution, which the district court found failed as a matter of law. 9 USCA4 Appeal: 25-1374 Doc: 55 Filed: 04/01/2026 Pg: 10 of 38

could revise its decision on the res judicata issue with help from Barker’s testimony. J.A.

2609.

So the district court heard live testimony from Barker and other witnesses to aid in

its motions in limine rulings, as well as its consideration of the res judicata issue. After a

break, the court noted that when it made its prior summary judgment ruling on the res

judicata issue, it “didn’t have” the 30(b)(6) transcript of Clear Touch CEO Keone Trask,

in which Trask appeared to admit knowing that Ockers was using the TradeView mark

well before Clear Touch entered into the settlement agreement. J.A. 2675. The court also

stated that it wanted to resolve the “obvious res judicata matter” to avoid discovering that

the claims were barred by res judicata in the midst of a protracted trial. Id.

The next day, November 26, the district court reversed course from its earlier ruling

and granted the Ockers Defendants’ motion for summary judgment. In a written order that

followed, the court provided two explanations. First, it had more carefully read what it

called the “new evidence” of Trask’s deposition and realized that Clear Touch knew about

Ockers using the TouchView mark before signing the settlement agreement. J.A. 3118.

And second, the court had made a “clear error” of law in conflating the settlement

agreement’s release language with its dismissal language. Id.

The effect of that last-minute ruling was dramatic. Because Clear Touch no longer

had any live claims, Ockers became the plaintiff and Clear Touch the defendant, inverting

what the jury had been told during jury selection.

10 USCA4 Appeal: 25-1374 Doc: 55 Filed: 04/01/2026 Pg: 11 of 38

Clear Touch attempted to appeal the decision to the Fourth Circuit in an emergency

order, but we denied it. See Clear Touch Interactive, Inc. v. The Ockers Co., No. 24-2184

(4th Cir. Dec. 2, 2024), Dkt. No. 9. Thus, the trial moved forward.

On December 2, the district court granted Ockers’s motion to exclude Diiorio’s

testimony but denied Clear Touch’s motion to exclude Barker’s. At the close of Ockers’s

case-in-chief, Clear Touch moved for judgment as a matter of law on Ockers’s

counterclaims, but the district court rejected the motion.

Finally, after a five-day trial, the jury found Clear Touch liable for breach of contract

and breach of contract accompanied by a fraudulent act. 3 It awarded Ockers $1,347,897 in

actual damages and $1 million in punitive damages.

Thereafter, the district court denied Clear Touch’s motions for a new trial and

remittitur. Clear Touch timely appealed.

II.

Clear Touch first appeals the trial court’s summary-judgment order that found no

genuine dispute of material fact that the TouchView corporate entity was a mere shell

company and therefore could not infringe on Clear Touch’s intellectual property.

We review summary-judgment orders de novo, viewing all facts and reasonable

inferences in the light most favorable to the non-movant. United States v. 8.929 Acres of

Land in Arlington Cnty., 36 F.4th 240, 252 (4th Cir. 2022). “Summary judgment is

appropriate ‘if the movant shows that there is no genuine dispute as to any material fact

3 The jury found Clear Touch not liable for violations of SCUTPA. 11 USCA4 Appeal: 25-1374 Doc: 55 Filed: 04/01/2026 Pg: 12 of 38

and the movant is entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P

56(a)). Still, “[t]he mere existence of a scintilla of evidence in support of the [non-

movant’s] position will be insufficient; there must be evidence on which the jury could

reasonably find for the [non-movant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252

(1986).

Here, there is no dispute that Houser incorporated TouchView Interactive, Inc., in

the Commonwealth of Massachusetts in March 2020. The question is what, if anything,

that corporate entity did once it was formed.

Houser stated in deposition testimony that he created this corporation “as part of

[his] exit strategy in [his] retirement plans” so that eventually his son could take over this

part of the larger Ockers business. J.A. 1555. But those plans never came to fruition.

Instead, he stated in a declaration that TouchView Interactive, Inc., has no employees, no

payroll, no place of business, and no assets. “It has never engaged in any commercial

activity whatsoever, and has never realized any revenues, expenses, profits, or losses.” J.A.

1047. And it “has never used any of the Ockers Marks for any activity of any nature.” J.A.

1048.

In response, Clear Touch points to a few pieces of evidence that it says at least create

a dispute of fact on whether TouchView Interactive, Inc., as a corporate entity directed

some of the infringing activity. Principally, there were at least twelve reseller agreements

executed between 2020 and 2021 that indicated “TouchView Interactive” as a party to the

contract and included a signature block with the title “TouchView Interactive.” See, e.g.,

J.A. 2326. Those agreements also noted that “TOUCHVIEW is the exclusive owner of

12 USCA4 Appeal: 25-1374 Doc: 55 Filed: 04/01/2026 Pg: 13 of 38

various trademarks, service marks, trade names, logos and designs used from time to time

by TOUCHVIEW in connection with the manufacture, sale or service of the Products, and

the goodwill associated therewith.” J.A. 1421.

Nevertheless, the district court found that TouchView was still due summary

judgment for a few reasons:

Specifically, there is no dispute that Ockers owns the accused Touchview Interactive marks [and] that Clear Touch was aware that Ockers was using the Touchview Interactive marks in late 2019 – before defendant Touchview was incorporated by defendant [Houser] on March 9, 2020. There is no evidence that the business has been transferred to Touchview. Moreover, despite over three years of litigation, Clear Touch has failed to present any evidence disputing defendant [Houser]’s testimony that Touchview has no assets; has never realized any revenues, expenses, profits, or losses; has never filed a tax return; and has no payroll.

J.A. 2557 (citations omitted).

Considering the full record, we agree with the district court. The evidence Clear

Touch puts forward shows, at most, that Ockers was acting through its TouchView brand

in conducting TouchView business. Even the reseller agreements never reference

TouchView Interactive, Inc., as a corporate entity—only “Touchview” or “Touchview

Interactive.” Conversely, there is no evidence in the record to dispute the facts put forward

by Ockers that The Ockers Company was the sole owner of the TouchView brand and that

Touchview Interactive, Inc., itself had no assets and no employees as a corporate entity.

Accordingly, we affirm the district court’s grant of summary judgment to

TouchView Interactive, Inc., on the claims against it.

13 USCA4 Appeal: 25-1374 Doc: 55 Filed: 04/01/2026 Pg: 14 of 38

III.

Clear Touch next appeals the district court’s res judicata ruling, which ultimately

extinguished its claims against the remaining Defendants in this case. Clear Touch attacks

this order both substantively and procedurally. That is, it argues that the district court

committed substantive error in granting summary judgment on the merits and procedural

error in reversing course on the eve of trial. We take each in turn.

The district court granted summary judgment to Ockers and the Housers because

Clear Touch’s claims were barred by the res judicata effect of a prior state-court order. As

above, we review the substance of that decision de novo.

Res judicata, or claim preclusion, applies when three elements are met: “There must

be: (1) a final judgment on the merits in a prior suit; (2) an identity of the cause of action

in both the earlier and the later suit; and (3) an identity of parties or their privies in the two

suits.” SAS Inst., Inc. v. World Programming Ltd., 874 F.3d 370, 378 (4th Cir. 2017)

(cleaned up).

However, “the traditional res-judicata inquiry is modified in cases where the earlier

action was dismissed in accordance with a release or other settlement agreement.” U.S. ex

rel. May v. Purdue Pharma L.P., 737 F.3d 908, 913 (4th Cir. 2013). In such cases, “the

principles of res judicata apply (in a somewhat modified form) to the matters specified in

the settlement agreement, rather than the original complaint.” Id. (quoting Norfolk S. Corp.

v. Chevron, U.S.A., Inc., 371 F.3d 1285, 1288 (11th Cir. 2004)). That is, “the preclusive

14 USCA4 Appeal: 25-1374 Doc: 55 Filed: 04/01/2026 Pg: 15 of 38

effect of the earlier judgment is determined by the intent of the parties” in signing the

settlement agreement. Keith v. Aldridge, 900 F.2d 736, 740 (4th Cir. 1990).

Ockers argues that the state-court order enforcing the parties’ settlement agreement

dismissed claims like the ones Clear Touch brings here with prejudice. Accordingly, the

district court correctly gave res judicata effect to that prior state-court order. We agree and

thus affirm.

The settlement agreement contained a release and a dismissal. The release language,

found in Paragraph 3(b), required Clear Touch to

release and discharge [Ockers] . . . of and from any and all . . . causes of action of every kind and nature whatever, arising out of or relating to the subject matter of the Litigation prior to the Effective Date of this Agreement, known and unknown.

J.A. 211. But that release did not cover Clear Touch’s intellectual-property claims at issue

here for two reasons. First, the alleged infringement on Clear Touch’s marks did not arise

out of the “subject matter of the Litigation” in state court. That litigation involved a dispute

over a breach of the reseller agreements between Clear Touch and Ockers and had nothing

to do with the later use of TouchView marks that Clear Touch alleged infringed on its

property rights. Second, the alleged infringement occurred, at least in part, after the

“Effective Date” of the settlement agreement because Clear Touch alleged ongoing

infringement of its marks, in addition to past infringement.

Nevertheless, the parties separately agreed in Paragraph 4 to jointly dismiss “with

prejudice all possible claims and counterclaims that have or could have been brought

15 USCA4 Appeal: 25-1374 Doc: 55 Filed: 04/01/2026 Pg: 16 of 38

against any Party as part of the Litigation.” J.A. 211. That language was broader both in

scope and in timeline than the release.

As to scope, the dismissal language sheds the requirement of the release that the

counterclaims “aris[e] out of or relat[e] to the subject matter of the Litigation.” J.A. 211.

Instead, the parties agreed to dismiss, and the state court actually dismissed, with prejudice

all possible counterclaims that could have been brought in the state-court litigation. That

squarely includes the complaint Clear Touch brings here.

In its complaint, Clear Touch alleges state law unfair-competition claims and federal

Lanham Act and intellectual-property claims. It is undisputed that state courts have

concurrent jurisdiction over such claims. See, e.g., Riley v. Dozier Internet L., PC, 371 F.

App’x 399, 405 (4th Cir. 2010) (“[S]tate courts have concurrent jurisdiction under the

Lanham Act.”). And though the original state-court litigation focused on breach of the

reseller agreements, South Carolina’s rules of civil procedure plainly allow unrelated

counterclaims like infringement to be brought even when they do not “aris[e] out of the

transaction or occurrence that is the subject matter of the opposing party’s claim.” S.C.R.

Civ. P. 13(b). The Clear Touch claims therefore fall within the scope of the dismissal

language because they could have been brought in the state-court litigation.

The dismissal language is also broader than the release in terms of the timing of the

claims it covers. The parties’ release extended only to those claims that arose “prior to the

Effective Date of th[e] Agreement.” J.A. 211. But the dismissal language contains no such

time bar.

16 USCA4 Appeal: 25-1374 Doc: 55 Filed: 04/01/2026 Pg: 17 of 38

Here, Clear Touch’s complaint alleges ongoing infringement. We have held that

each infringing act constitutes a distinct violation for purposes of accrual. Lyons P’ship,

L.P. v. Morris Costumes, Inc., 243 F.3d 789, 797 (4th Cir. 2001). But as described above,

what is dispositive here is the parties’ intent when they signed their settlement agreement,

and Clear Touch provides no reason to believe the parties intended their agreement to adopt

or reflect our case law on application of statutes of limitations to infringement claims. In

any event, while the language in the release was limited to claims arising “prior to the

Effective Date of the agreement,” the parties did not include such limiting language in the

dismissal provision. Under South Carolina law, we must give meaning to that choice. See

Schulmeyer v. State Farm Fire & Cas. Co., 579 S.E.2d 132, 134 (S.C. 2003) (“The cardinal

rule of contract interpretation is to ascertain and give legal effect to the parties’ intentions

as determined by the contract language.”).

Here, it is enough that this precise Clear Touch complaint, which alleges ongoing

infringement, could have been brought as a counterclaim in the state-court litigation. Cf.

JM Smith Corp. v. PC I Corp, 892 F.2d 74, 1989 WL 152411 (4th Cir. 1989) (unpublished

table decision) (affirming summary judgment in which court found settlement agreement

covered “derivative works of [a] program that existed at the time of settlement” because

the infringement was partially “the same misappropriation alleged by the plaintiff prior to

the settlement agreement”); MAS Assocs., LLC v. Venick, No. 22-cv-3195, 2023 WL

4236194, at *8 (D. Md. June 28, 2023) (finding res judicata barred infringement claims

because the “claims arise from the same transaction previously challenged, and [the

plaintiff] could have brought them during its state court case”). The parties agreed to

17 USCA4 Appeal: 25-1374 Doc: 55 Filed: 04/01/2026 Pg: 18 of 38

dismiss claims like the ones Clear Touch brings here, and we must give res judicata effect

to the state-court order dismissing them. 4

Moreover, the plain language of the settlement agreement bars the Clear Touch

complaint from moving forward. That conclusion is supported not only by the text itself,

but it is especially compelling in light of the parties’ evident intent in including this

particular dismissal clause at the time and the context in which the settlement agreement

was signed.

First, Ockers put on evidence that when the state-court litigation was filed, Clear

Touch attorneys told Ockers that they were contemplating bringing federal intellectual-

property counterclaims. Second, Ockers also put on evidence that Clear Touch had a

pattern of doing exactly what it did here: settling claims on paper and then defying that

settlement agreement by bringing intellectual-property claims weeks later. Finally,

knowing that Clear Touch was contemplating bringing intellectual-property claims and that

it had a history of skirting settlement agreements, Ockers added—in a last-minute

handwritten modification to the settlement agreement—the broad language dismissing all

possible counterclaims.

4 Indeed, Clear Touch’s complaint here challenges precisely the same “ongoing infringement” that Clear Touch already knew about at the time of the settlement agreement—and therefore could have brought as an ongoing infringement claim in the state-court action back then. Compare J.A. 298–13 (alleging ongoing infringement of four of Clear Touch’s marks in specific ways), with J.A. 218–19 (July 2021 cease-and-desist letter from Clear Touch, sent just three weeks after signing of settlement agreement, objecting to ongoing infringement of same four marks in same ways), and J.A. 133–34 (emails showing that Clear Touch executives knew of this use of the marks since at least 2020). 18 USCA4 Appeal: 25-1374 Doc: 55 Filed: 04/01/2026 Pg: 19 of 38

Although we are obligated at summary judgment to view the facts in the light most

favorable to Clear Touch, Clear Touch has put forth no evidence to meaningfully dispute

the factual account of the parties’ intent. Therefore, even viewing the record in the light

most favorable to Clear Touch, we think it clear that Ockers demanded the insertion of this

dismissal language in the agreement to broaden the settlement agreement beyond the

narrow terms of the release.

Additionally, under South Carolina law, 5 we must also give special attention to the

handwritten portion of the mediation agreement. See Hawkins v. Greenwood Dev. Corp.,

493 S.E.2d 875, 879 (S.C. Ct. App. 1997) (noting that if there is an inconsistency between

handwritten and printed portions of a contract, the handwritten provision prevails). And it

is that added language that protects Ockers from the suit Clear Touch brings here.

We also think it clear that the state court intended to dismiss this very Clear Touch

complaint when it entered its order dismissing all possible counterclaims in the state-court

litigation. Indeed, that was the whole point. When Clear Touch refused to sign a stipulation

dismissing all possible counterclaims and instead filed the present intellectual-property

5 Other jurisdictions follow the same rule. E.g., B. Elliott (Canada) Ltd. v. John T. Clark & Son of Md., Inc., 704 F.2d 1305, 1308 (4th Cir. 1983) (“According to general rules of contract interpretation, separately negotiated or added terms will prevail over the conflicting printed part of a contract.”) (citing Schapiro v. Chapin, 151 A. 44, 46 (Md. 1930)); McDaniel v. Georgia Consol. Contracting Co., 110 F. Supp. 751, 753 (S.D. Ga. 1952) (“[W]here parts of a contract are in writing and other parts are printed, the parts in writing are to be given the greater weight.” (cleaned up)), aff’d, 202 F.2d 748 (5th Cir. 1953); In re Spagnol Enters., Inc., 81 B.R. 337, 352 (W.D. Pa. 1987) (“When a contract consists of parts both handwritten and form printed, the handwritten words are to be given greater weight, as they presumably constitute the deliberate and clear intent of the contracting parties.”). 19 USCA4 Appeal: 25-1374 Doc: 55 Filed: 04/01/2026 Pg: 20 of 38

action in federal court, Ockers moved to enforce the terms of the settlement agreement.

The state court recognized it had no jurisdiction to actually dismiss Clear Touch’s federal

complaint. But it nevertheless observed that Clear Touch had filed this complaint in

apparent defiance of the settlement agreement, that it was a “fair assumption” on Ockers’s

part that the agreement covered this complaint, and ultimately that it appeared Clear Touch

was simply getting a case of “buyer’s remorse.” J.A. 1122, 1131.

Overall, therefore, the plain language of the settlement agreement and the intent of

the parties in signing it lead us to conclude that, because this exact complaint could have

been brought as a counterclaim in the prior state-court litigation, it is barred by the res

judicata effect of the state court’s order dismissing all possible counterclaims with

prejudice.

We therefore conclude that the district court was correct to conclude that Ockers

was entitled to summary judgment on the res judicata issue.

Putting the substance of the summary-judgment order aside, Clear Touch also

appeals the procedural mechanism by which the district court entered the revised summary-

judgment order: Rule 54(b). In other words, Clear Touch argues that the district court

violated its procedural rights by changing course on res judicata so late in the game, which

required the court to satisfy a more stringent standard to grant summary judgment than if

it had rendered that decision in the first instance.

20 USCA4 Appeal: 25-1374 Doc: 55 Filed: 04/01/2026 Pg: 21 of 38

After reviewing the district court’s revision under Rule 54(b) for abuse of discretion,

Carlson v. Bos. Sci. Corp., 856 F.3d 320, 325 (4th Cir. 2017), we find no abuse of discretion

here and therefore affirm.

Regarding the district court’s entry of a final order, a party may move the court to

alter or amend the judgment under Rule 59(e) or for relief from the judgment under Rule

60(b). Rule 59(e) motions must be filed within 28 days and can be granted “(1) to

accommodate an intervening change in controlling law; (2) to account for new evidence

not available at trial; or (3) to correct a clear error of law or prevent manifest injustice.”

Pac. Ins. Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998). Rule 60(b)

motions must be made “within a reasonable time,” Fed. R. Civ. P. 60(c), and are granted

only when the moving party demonstrates timeliness, a meritorious defense, a lack of unfair

prejudice to the opposing party, and exceptional circumstances, Justus v. Clarke, 78 F.4th

97, 105 (4th Cir. 2023). In general, we have held, “reconsideration of a judgment after its

entry is an extraordinary remedy which should be used sparingly.” Pac. Ins. Co., 148 F.3d

at 403 (quotation omitted).

But a district court has much more flexibility in reconsidering its nonfinal orders

under Rule 54(b), as the court did here.

Rule 54(b) allows an order that “adjudicates fewer than all the claims or the rights

and liabilities of fewer than all the parties” to be “revised at any time before the entry of a

judgment adjudicating all the claims and all the parties’ rights and liabilities.” Fed. R. Civ.

P. 54(b). Accordingly, “a district court retains the power to reconsider and modify its

interlocutory judgments, including partial summary judgments, at any time prior to final

21 USCA4 Appeal: 25-1374 Doc: 55 Filed: 04/01/2026 Pg: 22 of 38

judgment when such is warranted.” Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505,

514–15 (4th Cir. 2003). Rule 54(b) thus allows district courts “broader flexibility” than

Rules 59(e) and 60(b) to revise their prior orders “as the litigation develops and new facts

or arguments come to light.” Carlson, 856 F.3d at 325. This is because “[t]he ultimate

responsibility of the federal courts, at all levels, is to reach the correct judgment under law.”

Am. Canoe Ass’n, 326 F.3d at 515.

Still, reconsideration under Rule 54(b) is “not limitless.” Carlson, 856 F.3d at 325.

Specifically, we have cabined district courts to revising their orders in three circumstances:

where there is (1) substantially different evidence discovered during litigation, (2) an

intervening change in law, or (3) clear error causing manifest injustice. Id. Though “[t]his

standard closely resembles the standard applicable to motions to reconsider final orders

pursuant to Rule 59(e),” id., the standard here is not as “strict,” Am. Canoe Ass’n, 326 F.3d

at 514. Primarily, the evidentiary standard under Rule 54(b) “departs from [the final order]

standard by accounting for potentially different evidence discovered during litigation as

opposed to the discovery of new evidence not available at trial.” U.S. Tobacco Coop. Inc.

v. Big S. Wholesale of Va., LLC, 899 F.3d 236, 257 (4th Cir. 2018) (emphasis added)

(quoting Carlson, 856 F.3d at 325).

The district court departed from its prior ruling for two permissible reasons:

substantially different evidence emerged, and its prior ruling contained a clear error of law

causing manifest injustice.

22 USCA4 Appeal: 25-1374 Doc: 55 Filed: 04/01/2026 Pg: 23 of 38

1.

As to the emergence of substantially different evidence, the district court relied on

two different forms of substantially different evidence when it revised its nonfinal

summary-judgment order.

First, when making its initial res judicata ruling, the district court “didn’t have” the

deposition of Clear Touch CEO Trask, who admitted that Clear Touch knew about Ockers

using the mark “TouchView” well before signing the settlement agreement. J.A. 2675; J.A.

3126.

Second, the district court found the res judicata issue worth “revisiting” after

hearing live motion-in-limine testimony from Ockers attorney Barker. J.A. 2675. Barker

testified that “Clear Touch said it had intellectual property counterclaims to allege in [the

state-court litigation] that would give them federal question jurisdiction.” J.A. 2625. Barker

corroborated that testimony with a contemporaneous email (seen by the court for the first

time in the motion-in-limine hearing) that Barker sent to her co-counsel in which she

relayed that Clear Touch stated it “intend[ed] to assert multiple intellectual property

counterclaims” against Ockers in the state-court litigation. J.A. 2781.

Taken together, the substantially different evidence available to the district court

was more than enough to justify revisiting the summary-judgment order decision. Both the

Trask deposition and the Barker testimony were critical to the district court’s analysis

because they shed light on the intent of the parties in crafting the handwritten portion of

the settlement agreement. If Clear Touch already knew about the TouchView brand when

it signed the settlement agreement, and if Clear Touch’s counsel explicitly contemplated

23 USCA4 Appeal: 25-1374 Doc: 55 Filed: 04/01/2026 Pg: 24 of 38

bringing intellectual-property counterclaims in state court, it follows that such

counterclaims “could have been brought” in the state-court litigation. J.A. 3126.

Especially in light of the laxer evidentiary standard for revisions to nonfinal orders

under Rule 54(b), we find no abuse of discretion in the district court revising its decision

after reviewing such substantially different evidence.

2.

Independently, the district court did not abuse its discretion in revising its summary-

judgment order because there was also clear error in the district court’s prior res judicata

ruling that caused manifest injustice to Ockers.

Initially, the district court denied Ockers’s motion for summary judgment because

Clear Touch’s intellectual-property and unfair-competition claims did “not depend upon

the parties’ relationship pursuant to the reseller agreements and d[id] not arise from or

necessarily relate to the [state-court action].” J.A. 2545–46. But, as the district court later

realized, and as we have analyzed extensively above, that was clear error because it

conflated two distinct sections of the settlement agreement: the release and the dismissal. 6

6 Our caselaw of late has begun to suggest that “clear error” under Rule 54(b) must “be so ‘dead wrong’ that it strike[s] us as wrong with the force of a five-week-old, unrefrigerated dead fish,” Chavez-Deremer v. Med. Staffing of Am., LLC, 147 F.4th 371, 414 (4th Cir. 2025) (quoting U.S. Tobacco Coop., F.3d at 258), importing this standard from the very different contexts of prior appellate decisions, TFWS, Inc. v. Franchot, 572 F.3d 186, 194 (4th Cir. 2009), and our own clear-error review of factual findings by the district court, Bellsouth Telesensor v. Info. Sys. & Networks Corp., 65 F.3d 166, 1995 WL 520978, at *5 n.6 (4th Cir. 1995) (per curiam) (unpublished table decision).

We have our doubts about the appropriateness of such a high bar in this context and the inflexibility to which it condemns district courts when they realize they have made legal

24 USCA4 Appeal: 25-1374 Doc: 55 Filed: 04/01/2026 Pg: 25 of 38

We also think it obvious that having to defend a claim at trial that was covered by a

prior settlement agreement would cause a party manifest injustice.

So, though the district court was within its rights to revise its order solely on the

grounds of substantially different evidence, it also acted within its discretion in finding that

allowing settled claims to move forward would have been clear error causing manifest

injustice.

Here, on the eve of a trial that he inherited from a colleague, Judge McDonald

discovered that upon further review of the evidence, Clear Touch’s intellectual-property

claims were barred by res judicata based on the parties’ prior agreement to dismiss all

possible counterclaims in the state-court action. He contemplated allowing Clear Touch’s

claims to move forward anyway. After all, a jury had already been impaneled, and the

parties had prepared for months for a particular kind of trial.

But rather than allow his mistake to metastasize, he decided, instead, to recognize

the error and rule as a matter of law that Clear Touch’s claims were, in fact, barred by res

judicata. This path, he noted, was not perfect. But it would prevent the parties from

“get[ting] to the end of a trial and [having the] obvious res judicata matter be presented in

the course of a lengthy trial and you-all having done this only to have your claims

dismissed. I just think it’s fair to both sides that I deal with this upfront.” J.A. 2675.

errors. Still, in this case, we are satisfied that the original district court opinion was not only wrong but “dead wrong”—because it rendered an entire section of the settlement agreement superfluous. 25 USCA4 Appeal: 25-1374 Doc: 55 Filed: 04/01/2026 Pg: 26 of 38

Far from being an abuse of discretion, Judge McDonald’s decision was laudable and

led to the most efficient use of judicial resources.

We therefore affirm the summary-judgment order that barred Clear Touch’s claims.

IV.

Clear Touch also appeals two motions in limine relating to the exclusion and

inclusion of certain witnesses at trial.

This Court reviews a district court’s decision to exclude or include a particular

witness at trial for abuse of discretion. United States v. Johnson, 617 F.3d 286, 292 (4th

Cir. 2010).

Clear Touch first appeals the district court’s decision to exclude its witness, Paul

Diiorio, whom the district court found had been untimely disclosed to Defendants.

“A party that fails to provide [witness] disclosures unfairly inhibits its opponent’s

ability to properly prepare, unnecessarily prolongs litigation, and undermines the district

court’s management of the case.” Saudi v. Northrop Grumman Corp., 427 F.3d 271, 278

(4th Cir. 2005). Therefore, Rule 37(c)(1) of the Federal Rules of Civil Procedure requires

witness exclusion for untimely disclosure, even rebuttal witnesses, “unless the violation is

substantially justified or harmless.” Nelson-Salabes, Inc. v. Morningside Dev., LLC, 284

F.3d 505, 512 n.10 (4th Cir. 2002).

District courts retain “broad discretion” to determine whether an untimely

disclosure is substantially justified or harmless. Benjamin v. Sparks, 986 F.3d 332, 343 (4th

Cir. 2021). When exercising this discretion, district courts may consider the surprise to the

26 USCA4 Appeal: 25-1374 Doc: 55 Filed: 04/01/2026 Pg: 27 of 38

opposing party, the ability to cure that surprise, the disruption to the trial, the importance

of the evidence, and the explanation for nondisclosure. S. States Rack & Fixture, Inc. v.

Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003). The party requesting untimely

disclosure has the burden of demonstrating that these factors support allowing the witness

to testify. Wilkins v. Montgomery, 751 F.3d 214, 222 (4th Cir. 2014).

Here, the parties finished discovery on July 1, 2024, and were preparing for trial in

early December. Nearly three months after the discovery deadline, Clear Touch served a

supplement to its Rule 26(a)(1) disclosure and named Diiorio as a witness for the first time.

In the motions-in-limine hearing, the district court warned Clear Touch it was “pretty firm

on . . . meeting the deadlines,” J.A. 3049, and eventually granted the motion to exclude

Diiorio. The court noted that the late disclosure meant that Clear Touch had “deprived

Ockers of the opportunity to depose [Diiorio], learn his expected testimony, prepare to

cross-examine him, and present its case to account for his expected testimony.” J.A. 4166.

We find no abuse of discretion in that decision.

As a former Ockers employee, Diiorio did have some value to Clear Touch as a

witness: He apparently would have served as a rebuttal witness to Ockers’s damages

witness. But his late disclosure came as a surprise to Ockers, which was robbed of the

opportunity to depose him and to properly prepare for cross-examining him at trial.

Balancing those interests, the district court acted within its discretion in determining that

there was no practical way to cure such a prejudice in time for trial.

27 USCA4 Appeal: 25-1374 Doc: 55 Filed: 04/01/2026 Pg: 28 of 38

Clear Touch also argues that the district court erred in denying its motion in limine

to exclude Rita Bolt Barker from testifying at trial. Again, this decision is reviewed for

abuse of discretion.

Ockers offered Barker, an attorney at the firm representing Ockers, as a fact witness

to testify to two critical parts of Ockers’s counterclaims. First, she would (and did) testify

that Clear Touch contemplated bringing intellectual-property counterclaims in the state-

court action that could mirror the very claims Clear Touch impermissibly brought in this

action. Such testimony was relevant to determining whether the claims Clear Touch

eventually brought in this action were possible counterclaims to the state-court action and

thus barred by the settlement agreement.

Second, Barker would (and did) testify that Clear Touch had engaged in a pattern

of filing lawsuits barred by settlement agreements in the past. That testimony was relevant

in particular to Ockers’s SCUTPA claim, which required Ockers to show that Clear

Touch’s “unlawful trade practice is capable of repetition,” which it could prove “by

showing that . . . the same kind of actions occurred in the past, thus making it likely the

action will continue absent some deterrence.” J.A. 4005 (jury instructions).

Still, Clear Touch argued that Barker’s dual role as attorney and fact witness would

be unfairly prejudicial to Clear Touch and confusing for the jury, citing South Carolina’s

Rules of Professional Conduct, which state that “[a] lawyer shall not act as advocate at a

trial in which the lawyer is likely to be a necessary witness,” absent some exceptions.

S.C.R.P.C. 3.7(a).

28 USCA4 Appeal: 25-1374 Doc: 55 Filed: 04/01/2026 Pg: 29 of 38

While generally a concern, we have advised that the solution for such a conflict is

for the attorney in question to withdraw from representation and testify only as a fact

witness. See United States v. Freitekh, 114 F.4th 292, 313 (4th Cir. 2024). That is because

“acting solely as a witness significantly reduces possible confusion of the roles of advocate

and witness and hostility between parties.” Brown v. Daniel, 180 F.R.D. 298, 301 (D.S.C.

1998) (applying South Carolina law and refusing to disqualify entire firm if necessary

witness withdrew as trial counsel). That is precisely what occurred here: Rather than

advocate for her client from counsel table, Barker withdrew from representation ahead of

trial and acted solely as a fact witness.

Therefore, we find no abuse of discretion in the district court’s decision to allow

Barker to testify at trial.

Finally, Clear Touch appeals the district court’s denial of its motions for judgment

as a matter of law and for a new trial. We affirm.

At the close of Ockers’ case-in-chief, Clear Touch moved for judgment as a matter

of law, arguing that Ockers had not presented sufficient evidence to support its claim for

breach of contract accompanied by a fraudulent act.

“Judgment as a matter of law is proper when, without weighing the credibility of

the evidence, there can be but one reasonable conclusion as to the proper judgment,” and

such judgments are reviewed by this Court de novo. U.S. ex rel. DRC, Inc. v. Custer Battles,

LLC, 562 F.3d 295, 305 (4th Cir. 2009) (quoting Chaudhry v. Gallerizzo, 174 F.3d 394,

29 USCA4 Appeal: 25-1374 Doc: 55 Filed: 04/01/2026 Pg: 30 of 38

405 (4th Cir. 1999)). A reviewing court need only determine “whether there was a legally

sufficient evidentiary basis for a reasonable jury to render the verdict that it did.” Sardis v.

Overhead Door Corp., 10 F.4th 268, 279 (4th Cir. 2021) (cleaned up).

Under South Carolina law, a plaintiff alleging breach of contract accompanied by a

fraudulent act must show “(1) breach of contract, (2) fraudulent intent relating to the

breach, and (3) a fraudulent act accompanying the breach.” Edens v. Goodyear Tire &

Rubber Co., 858 F.2d 198, 202 (4th Cir. 1988) (citing Floyd v. Country Squire Mobile

Homes, Inc., 336 S.E.2d 502, 503 (S.C. Ct. App. 1985)). Breach of contract, in turn,

requires “the existence of the contract, its breach, and the damages caused by such breach.”

S. Glass & Plastics Co. v. Kemper, 732 S.E.2d 205, 209 (S.C. Ct. App. 2012).

Clear Touch argues that Ockers failed to present evidence sufficient to show a

fraudulent act and damages. We disagree.

As to the fraudulent act, Ockers first put on evidence at trial that Clear Touch signed

the settlement agreement with no intent to abide by its terms. That evidence included a

letter Clear Touch sent to Ockers just weeks after signing the agreement, as well as

evidence that Clear Touch refused to agree to the stipulated dismissal after signing the

agreement. Separately, Ockers also put on evidence that Clear Touch had falsely

represented to customers in Massachusetts that Pro AV was still an authorized reseller in

that state in 2022, despite the parties agreeing in the settlement agreement to suspend sales

through Pro AV that year. Together, these were legally sufficient to show that Clear Touch

had engaged in a fraudulent act that accompanied the breach.

30 USCA4 Appeal: 25-1374 Doc: 55 Filed: 04/01/2026 Pg: 31 of 38

As to damages, Ockers offered expert testimony regarding the amount of sales

Ockers lost to competitors in Massachusetts due to Clear Touch’s failure to end its reseller

agreement with Pro AV. Clear Touch argues that the expert’s estimate of $1,863,478 was

inflated. But the jury returned a verdict of actual damages substantially lower than that

estimate: $1,347,897. Additionally, the lost sales were not the only damages the jury

considered. Ockers also put on evidence from its CEO, Houser, that the breach caused

Ockers substantial damages to reputation and attorney’s fees in litigating the breach.

Ockers’s evidence was more than sufficient to support the jury’s actual damages

calculation.

Accordingly, the district court did not err in denying the motion for judgment as a

matter of law.

After the jury returned its verdict, Clear Touch moved for a new trial, which the

district court denied. Clear Touch appeals that denial, primarily on the grounds that the

court’s late res judicata ruling “irreparably prejudiced Clear Touch and denied it a fair

trial.” Opening Br. at 43.

We review a denial of a motion for a new trial under a “deferential abuse-of-

discretion standard, reversing the court’s judgment only in ‘exceptional circumstances.’”

Hicks v. Ferreyra, 64 F.4th 156, 171 (4th Cir. 2023) (quoting Minter v. Wells Fargo Bank,

N.A., 762 F.3d 339, 346 (4th Cir. 2014)). “A district court may grant a new trial only if the

verdict: (1) is against the clear weight of the evidence; (2) is based upon false evidence; or

(3) will result in a miscarriage of justice.” U.S. Equal Emp. Opportunity Comm’n v. Consol

31 USCA4 Appeal: 25-1374 Doc: 55 Filed: 04/01/2026 Pg: 32 of 38

Energy, Inc., 860 F.3d 131, 145 (4th Cir. 2017). Overall, “the crucial inquiry is whether an

error occurred in the conduct of the trial that was so grievous as to have rendered the trial

unfair.” Hicks v. Anne Arundel County, 110 F.4th 653, 658 (4th Cir. 2024) (quotation

omitted).

Clear Touch’s argument for a new trial hinges entirely on the district court’s res

judicata ruling. Prior to the court’s revised ruling, the jury was told that Clear Touch was

the plaintiff in this case and Ockers the defendant. When the jury returned, they were

informed that the sides had swapped and that the court had dismissed Clear Touch’s claims.

Clear Touch now argues (1) that the timing of the res judicata decision stripped it of the

ability to prepare for trial, (2) that the ruling tainted the jury’s impartiality, (3) that the

prejudice it caused Clear Touch was not adequately cured by the court’s limiting

instructions, and (4) that the court erred in failing to impanel a new jury.

As we have already noted, we believe that the district court ruled correctly on the

merits of the res judicata claim. That is, Clear Touch’s claims were barred by the settlement

agreement, and the district court properly granted summary judgment to Ockers, setting

the trial up only for Ockers’ counterclaims. And while, unquestionably, the late ruling

caused some prejudice to Clear Touch in the preparation of its defense at trial, when

evaluating the trial as a whole, we do not believe that the court abused its discretion in

conducting the trial.

First, Clear Touch has waived any argument that it should have been given more

time to prepare or an entirely new jury—because it never asked for such relief below. See

Hicks v. Ferreyra, 965 F.3d 302, 310 (4th Cir. 2020) (“[T]his court does not consider issues

32 USCA4 Appeal: 25-1374 Doc: 55 Filed: 04/01/2026 Pg: 33 of 38

raised for the first time on appeal, absent exceptional circumstances.” (cleaned up)). In fact,

when the court was discussing the impact of this decision on the timing of trial, the court

opted to give the parties an additional day to prepare (moving trial from Monday to

Tuesday), a proposal which Clear Touch’s attorney accepted by responding, “I don’t

believe there would be any prejudice to anyone if we looked at a Tuesday start date.” J.A.

3043; see United States v. Herrera, 23 F.3d 74, 75 (4th Cir. 1994) (noting that an appellant

“cannot complain of error which he himself has invited” (quoting Shields v. United States,

273 U.S. 583, 586 (1927)).

Second, to the extent the late ruling caused any prejudice by influencing the jury,

who had initially been told Clear Touch was the plaintiff in this case, the district court did

not abuse its discretion in mitigating that prejudice with a curative instruction. Once the

jury returned the following week, the district court addressed the obvious changed

circumstances directly. After noting that the sides had switched and that he had dismissed

Clear Touch’s claims since the jury last entered the courtroom, Judge McDonald instructed

the jury that

these legal rulings made by me should not influence your consideration of this case. I am called upon to make legal rulings, and that sometimes touches on the evidence. But you should not let the fact that I ruled one way or another on these issues or claims to have an effect on your ability to be fair and impartial, and to decide the case solely on the facts as you find them to be from the testimony and evidence presented in this trial, coupled with the law as I will instruct you.

33 USCA4 Appeal: 25-1374 Doc: 55 Filed: 04/01/2026 Pg: 34 of 38

J.A. 3180. “[I]t is well settled that a trial court has broad discretion in framing its

instructions to a jury.” Volvo Trademark Holding Aktiebolaget v. Clark Mach. Co., 510

F.3d 474, 484 (4th Cir. 2007).

Here, the court addressed the last-minute reversal of parties head on and asked the

jury not to allow that fact to taint their view of the case. While no instruction could perfectly

cure all prejudice, “[w]e presume that a jury follows a curative instruction” absent strong

evidence otherwise. Consol Energy, 860 F.3d at 146. Accordingly, we hold that such an

instruction adequately guarded against the risk that the ruling would taint the jury’s

understanding of the law and the facts in this case.

We affirm the denial of the motion for a new trial.

VI.

For the foregoing reasons, the district court’s judgment is affirmed.

AFFIRMED

34 USCA4 Appeal: 25-1374 Doc: 55 Filed: 04/01/2026 Pg: 35 of 38

RUSHING, Circuit Judge, concurring in part and dissenting in part:

I agree with the majority that the district court properly granted summary judgment

to TouchView Interactive, Inc. on all claims. I also agree that the district court did not

abuse its discretion in ruling on the two motions in limine, and that we should affirm the

district court’s denial of Clear Touch’s motions for judgment as a matter of law and a new

trial. Regarding the res judicata ruling discussed in Part III of the majority opinion,

however, I would reverse in part.

As an initial matter, the district court may have abused its discretion in reconsidering

its initial summary judgment ruling at all. The evidence the majority cites as justifying

reconsideration is not “‘substantially different’” from the evidence that was before the

district court at summary judgment. Carlson v. Bos. Sci. Corp., 856 F.3d 320, 325 (4th

Cir. 2017) (quoting Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 515 (4th Cir.

2003)). Right before the district court’s reconsideration order, Ockers attorney Barker

testified that, during the state-court litigation, “Clear Touch said it had intellectual property

counterclaims to allege in that [litigation].” J.A. 2625. An email exhibit corroborated her

testimony. However, a declaration from Barker, submitted at summary judgment, said the

exact same thing. See J.A. 1135–1136 ¶ 4 (“During that conversation, one of Clear Touch’s

attorneys stated that . . . Clear Touch had federal intellectual property counterclaims that it

wished to pursue against Ockers.”). Defendants also submitted for the first time right

before the district court’s reconsideration order an excerpt from Clear Touch CEO Trask’s

deposition, in which Trask admitted that Clear Touch knew before the settlement

agreement was signed that Ockers was using the TouchView mark. See J.A. 3126. But,

35 USCA4 Appeal: 25-1374 Doc: 55 Filed: 04/01/2026 Pg: 36 of 38

again, a declaration from Ockers owner Houser—submitted at summary judgment with an

email attached as an exhibit—showed the exact same thing. See J.A. 1047 ¶ 5 (“Clear

Touch . . . was aware that Ockers was using the [TouchView] Marks then, which Clear

Touch admitted in its deposition and in the emails attached hereto as Exhibit A . . . .”); ECF

No. 141-2 at 8 (reproduced at J.A. 133) (email from Clear Touch employee to Trask stating,

“[a]t MassCue in Nov last year [i.e., November 2019] they [Ockers] had TouchView on

display in their booth”). 1 The “substantially different evidence” rationale thus fails. And

though I agree with the majority that the district court’s initial summary judgment ruling

was at least partially incorrect, it was not “so ‘dead wrong’ that it ‘strike[s] [me] as wrong

with the force of a five-week-old, unrefrigerated dead fish.’” Chavez-Deremer v. Med.

Staffing of Am., LLC, 147 F.4th 371, 414 (4th Cir. 2025) (quoting U.S. Tobacco Coop. Inc.

v. Big S. Wholesale of Va., LLC, 899 F.3d 236, 258 (4th Cir. 2018)).

That said, “‘[t]he ultimate responsibility of the federal courts, at all levels, is to reach

the correct judgment under the law.’” Nadendla v. WakeMed, 24 F.4th 299, 304 (4th Cir.

2022) (quoting Am. Canoe, 326 F.3d at 515–516). The district court could have granted

judgment as a matter of law on Clear Touch’s settlement-barred claims during or after trial,

reaching the same result in a less efficient manner. So any procedural error on this front

appears harmless.

1 Indeed, based on Houser’s declaration and the attached exhibit, the district court found in its initial summary judgment order that “there is no dispute that Clear Touch was aware that Ockers was using the Touchview Interactive marks in late 2019.” J.A. 2557. 36 USCA4 Appeal: 25-1374 Doc: 55 Filed: 04/01/2026 Pg: 37 of 38

On the merits of whether the settlement agreement actually barred all of Clear

Touch’s claims, I would reverse as to one small sliver: Clear Touch’s trademark-

infringement claims based on infringing conduct occurring after the date of the settlement

agreement. 2 The majority is correct that the release provision in the settlement agreement

contains temporal language that the dismissal provision does not: “‘prior to the Effective

Date of th[e] Agreement.’” Maj. Op. 16 (quoting J.A. 211). But the dismissal provision

contains language that accomplishes the same thing as that temporal language—it

dismisses “all possible claims and counterclaims that have or could have been brought” in

the state-court litigation. J.A. 211. Clear Touch’s claims based on acts occurring after the

settlement agreement obviously could not have been brought as part of the settled litigation.

See Lyons P’ship, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 797 (4th Cir. 2001)

(explaining that each infringing act “should be considered separately under an infringement

analysis”). The district court therefore erred in granting summary judgment to Defendants

on those claims.

The parties could have written the settlement agreement to say that Clear Touch was

dismissing all infringement claims that it “has or hereafter may have.” See, e.g., Chaparral

Commc’ns v. Boman Indus., Inc., 873 F.2d 1452 (Table), 1989 WL 36842, at *2 (Fed. Cir.

1989) (finding continuing trademark violations released based on agreement releasing

claims that a party “now has or hereafter may have”). But that’s not what the settlement

2 Clear Touch’s opening brief argues only that “[t]he settlement agreement did not bar post-settlement infringement claims.” Opening Br. 41 (emphasis added and italics removed). Clear Touch does not meaningfully extend that argument to other claims. 37 USCA4 Appeal: 25-1374 Doc: 55 Filed: 04/01/2026 Pg: 38 of 38

agreement says. Instead, it turns on whether claims “could have been brought” in the state-

court litigation. J.A. 211. Because at least some of Clear Touch’s claims could not have

been brought in that litigation, I would reverse the district court’s grant of summary

judgment in part.