Border Wall Needs Private Property. But Some Texans Won’t Give Up Their Land Without a Fight.

Government lawyers have taken the first step in trying to seize private property using the power of eminent domain to build a border wall — a contentious step that could put a lengthy legal wrinkle into President Trump’s plans to build hundreds of miles of wall, reports The Washington Post.

Previous eminent domain attempts along the Texas border have led to more than a decade of court battles, some of which date to George W. Bush’s administration and have yet to be resolved, according to the Post‘s Katie Zezima and Mark Berman. Many landowners are vowing to fight anew.

The reporters quoted Gerald S. Dickinson, an assistant professor of law at the University of Pittsburgh, who said this newest fight will be different because the earlier effort mostly included federal government land.

“If it’s going to be a contiguous wall across the entire southwest border, you’re talking about a massive land seizure of private property,” he said.

Read the Post article.



A Quick ‘Yes’ Can Create a Binding Contract, Even If There Has Not Been Agreement on All Terms

Email marketingEven an informal email can constitute acceptance of a contractual offer, warns The In-House Advisor.

“Moreover, just a few months ago, Judge Timothy Hillman took this principle one step further by ruling, in Witt v. American Airlines, that an exchange of emails can form a binding settlement agreement, even if the parties have not agreed to all of the terms of that settlement,” explains author Shepard Davidson, a Burns Levinson partner.

The judge found that both sides had agreed to a settlement in an email exchange. When the plaintiff later tried to reopen discussions, American Airlines filed a motion to enforce settlement agreement. The court allowed the motion.

Read the article.



Why Johnson & Johnson May Not Have to Pay Its $4.7 Billion Court Verdict

While a $4.7 billion jury verdict in a talc case against Johnson & Johnson in July was eye-popping — the sixth-largest ever in a product-defect case — J&J may pay far less, or nothing, reports Bloomberg. No verdict of that size has survived appeal.

“Indeed, of the 25 largest U.S. jury awards, 23 were reversed, drastically cut or against defendants with few or no assets who couldn’t pay, according to data compiled by Bloomberg. The remaining two, including the one against J&J, are being appealed. Most such revisions are by judges overruling angry jurors or enforcing court-imposed limits on punitive damages,” writes Bloomberg’s Margaret Cronin Fisk.

But even if the award is cut or reversed, a large verdict can draw other cases.

Read the Bloomberg article.



Syngenta MDL Judge Tears Up Lawyers’ Contingency Contracts in $500 Million Fee Ruling

Reuters reports that U.S. District Judge John Lungstrum of Kansas City has set aside individual contingency fee contracts that some plaintiffs’ lawyers had in place for clients in a multidistrict litigation.

The ruling rejected the claims of Watts Guerra, a Texas firm that had signed up tens of thousands of farmers to bring individual cases in state court, accusing the agricultural giant Syngenta of peddling genetically modified seeds that produced corn China refused to import. The case led to a $1.5 billion global settlement for the U.S. farmers, according to Reuters’ Alison Frankel.

“This court has the authority and duty to determine the amount of reasonable fees paid to attorneys from the settlement fund, and because any further contingent fee payments would necessarily come from proceeds from the settlement fund, the court can and does prohibit any such additional payments,” Lungstrum wrote in the opinion.

Read the Reuters article.



Lawyer Who ‘Won’t Take No for an Answer’ is Suspended for Two Years

Former Pennsylvania state Rep. Tom Gannon has been suspended from practicing law in the state for two years due to multiple rules violations incurred while representing a client in a condominium association action, reports the Delaware County Daily Times.

Friday’s state Supreme Court order indicates Gannon persisted in filing a total 46 appeals in the state court system in a small civil dispute for a client, despite multiple denials, admonitions from the court, and even disqualification orders that should have removed him from the case entirely.

“Nevertheless, (Gannon) continued his pattern and practice of frivolous filings and appeals on behalf of Mr. King, despite the fact that doing so was in contravention of court orders,” according to the order.

Read the Daily Times article.



Lawyer Accuses Judge of ‘Robe Rage,’ Tells Opposing Counsel to ‘Certify Your Own Stupidity’

The ABA Journal reports on a Chicago lawyer who has been accused of belittling his opposing counsel during a deposition and then describing the judge’s reaction to his conduct as “robe rage.”

Charles Andrew Cohn was accused in a complaint before the hearing board of the Illinois attorney disciplinary commission.

During a deposition, the complaint says, Cohn instructed his client not to answer a question, spurring the opposing lawyer to note her disagreement. “Certify the question,” said the opposing lawyer.

“OK,” Cohn replied. “Then certify your own stupidity.”

Cohn doubled-down when he filed a response to the opposing lawyer’s motion to compel. He wrote that — in a hearing on the motion — the judge had himself flown into a rage in the court hearing, describing the situation as a “robe rage incident.”

Read the ABA Journal‘s article.




CBS Lawyer’s Strategy Backfired in Leadup to $9.5M Settlement of Actress’s Sexual Harassment Claim

The ABA Journal reports that CBS paid $9.5 million to settle a sexual harassment claim by Bull actress Eliza Dushku after a network lawyer released outtakes from the show in the mistaken belief that film of her cursing on the set would help the company.

The outtakes were a “gold mine” for Dushku because they captured some of the harassment, according to a draft investigation report.

Covington & Burling and Debevoise & Plimpton, law firms hired to investigate sexual misconduct allegations against the network’s then-CEO, Leslie Moonves, drafted the report. Mark Engstrom, the chief compliance officer at CBS, was identified as the lawyer who released the outtakes.

Read the ABA Journal article.



Federal Judge – Deemed ‘Unqualified’ – Becomes First in U.S. History Confirmed By Senate Tiebreaker

CBS News reports that a federal judge nominee who the American Bar Association deemed “not qualified” for the bench has become the first in U.S. history to be confirmed by the Senate with a tie-breaking vote from the vice president.

Vice President Mike Pence cast the deciding vote in favor of Jonathan Kobes after senators split 50-50 on his confirmation to the 8th Circuit Court of Appeals. Kobes is a lawyer from Sioux Falls, South Dakota.

The American Bar Association gave Kobes a “not qualified” rating, saying he had shown “neither the requisite experience nor evidence of his ability to fulfill the scholarly writing required of a United States Circuit Court Judge.”

Read the CBS News article.



Lawyer Gets License Suspended for Bullying Judge

Bloomberg Law reports that a New York lawyer had his license suspended for one year for trying to bully a judge who held his clients in contempt, and accusing another judge of “egregious” behavior for sanctioning him for filing a frivolous lawsuit.

A trial judge ordered Jonathan Steinberg to pay $28,600 in attorneys’ fees and $5,000 to the Lawyers’ Fund for Client Protection for filing a meritless suit on behalf of himself, but he didn’t pay either fine, according to Bloomberg’s Bernie Pazanowski.

When a judge in another case testified at Steinberg’s sanction hearing, rather than apologizing, Steinberg yelled at him and tried to intimidate him, Pazanowski writes.

Read the Bloomberg Law article.



Download: Top E-Discovery Case Law Rulings from 2018

Exterro has published “Top 10 E-Discovery Case Law Rulings of 2018” and made the report available on its website for downloading at no charge.

The white paper provides a quick recap of the most important and influential e-discovery case law rulings from 2018. After analyzing metrics from Exterro’s online case law library, the company compiled the 10 most popular case law rulings from this past year.

The report provides:

  • The 10 most popular case law rulings from 2018 in Exterro’s Simplified E-Discovery Case Law Library with overviews, rulings, and key takeaways
  • Expert opinions from leading e-discovery attorneys and resources to help prevent e-discovery missteps and sanctions
  • Analysis from Hon. Andrew Peck, US Magistrate Judge, S.D.N.Y. (Ret.) and Senior Counsel, DLA Piper

Download the report.




Court Warns: Disbarment for Anonymous Online Posts is Lesson for Other Lawyers

A former federal prosecutor has been disbarred for posting anonymous online comments about cases being handled by himself or by his office, according to reports from the ABA Journal and the Legal Profession Blog.

The Louisiana Supreme Court ordered the disbarment of Sal Perricone, finding he had violated ethics rules because his “caustic, extrajudicial comments about pending cases strikes at the heart of the neutral “dispassionate control which is the foundation of our system.”

“Perricone had posted more than 2,600 comments on, the website of the New Orleans Times-Picayune, between November 2007 and March 2012. Between 100 and 200 comments related to matters being prosecuted by Perricone’s office,” according to Journal reporter Debra Cassens Weiss.

Read the ABA Journal article.



Two High-Profile Law Firms File Class Action Blaming Utility Company for Deadly Camp Fire

Two law firms known for their class action practices have filed a new lawsuit that blames Pacific Gas and Electric Co. for the November fire that killed at least 88 people in Northern California and destroyed the town of Paradise, reports the ABA Journal.

The Edelson law firm and Lieff Cabraser Heimann & Bernstein filed the suit in state court in San Francisco on behalf of seven named plaintiffs. It is among several suits that accuse PG&E of negligently maintaining its equipment, writes reporter Debra Cassens Weiss.

The suit alleges negligence, inverse condemnation, trespass, private nuisance, premises liability, negligent interference with prospective economic advantage, violations of the California Public Utilities Code, and violations of the California Health & Safety Code, according to the Journal report.

Read the ABA Journal article.



Arbitrators’ Award Boosts Asbestos Settlement to $178.5 Million for Workers

More than 2,000 refinery and chemical workers and their families in Southeast Texas will be awarded another $140 million for asbestos exposure thanks to an arbitration award and settlement of a nearly 30-year-old legal case, according to a release from one of the firms involved, Provost Umphrey, L.L.P.

The award, from a three-judge arbitration panel, comes in addition to a previously agreed-upon $38 million settlement in the case, Cimino v. Raymark Industries, which began in 1990. Altogether, a bankruptcy trust will pay $178 million to resolve the claims of the workers and their families.

The panel’s decision brings an end to one of the longest-running civil litigations in history, according to the release. The 2,288 plaintiffs were originally diagnosed with an asbestos-related disease, including mesothelioma, between 1985 and 1987. When the cases were tried as a class action in 1990, the plaintiffs prevailed and the court entered judgments totaling more than $1.3 billion.

But after 10 years of motions, transfers and appeals, the 5th Circuit Court of Appeals found against the plaintiffs, reversed the judgments and sent the cases back to the trial court. The remaining defendant, Pittsburgh Corning Corporation (PCC), subsequently filed for bankruptcy and the Cimino plaintiffs were forced to wait another 16 years before having the opportunity to file bankruptcy claims and litigate their right to compensation from the PCC Asbestos Trust.

Between 1989-1990, the Cimino litigation involved:

2,354 depositions
1,400 independent medical exams
133 days of trial
271 expert witnesses
292 fact witnesses
6,176 exhibits
373 court orders
58 lawyers

Ultimately, the case produced four published opinions.

“While we are proud of successfully resolving this historic litigation, it is devastating to think that PCC’s unwillingness to treat our clients fairly means less than 3 percent of the original asbestos plaintiffs are alive today to receive this compensation,” said Bryan Blevins of Beaumont-based Provost Umphrey, L.L.P., who represented the firm’s clients in the case. “But what matters is they and their families are going to receive it, finally. That says something about their desire to see that justice was done.”

Representing the plaintiffs with Blevins were Glen Morgan of Reaud, Morgan & Quinn L.L.P. and Joseph Rice of Motley Rice, LLC.

Arguing before the arbitration panel were Blevins, Rice and New York University Law Professor Arthur Miller.



Judge Tosses Sexual Assault Suit Against Lawyer in Battle Between Personal Injury Titans

The ABA Journal is reporting that a Michigan judge has dismissed a sexual misconduct suit against a Southfield lawyer in what appears to be an ongoing battle between rivals.

The judge dismissed the sexual assault suit against lawyer Michael Morse after finding that his accuser had lied when she was questioned in a deposition about a possible financial motive for the suit.

The Journal‘s report describes the defendant and the lawyer opposing him:

“Morse has built his practice with daytime television commercials that are ‘as ubiquitous as soap operas,’ according to the Detroit News. His mother appears in some of the ads, and he comes across as a likable lawyer. [The accuser’s lawyer, Geoffrey] Fieger, on the other hand, ‘has handled a bevy of prominent cases,’ including that of assisted-suicide advocate Dr. Jack Kevorkian. He doesn’t seem to care what people think, and he is full of ‘bombastic bravado,’ according to the Detroit News.

Read the ABA Journal article.



Texas High Court Invokes the Discovery Rule

The Texas Supreme Court has held that the discovery rule delayed the running of the statute of limitations on behalf of the holder of a recorded right of first refusal to purchase mineral interests, reports the Energy & the Law blog of Gray Reed & McGraw.

Gray Reed partner Charles Sartain explains: “The trustees sued the Tregellases for buying the minerals without allowing the Trust to exercise its ROFR, contending that a contract was formed when they sued more than four years after the Tregellases’ purchase; the suit was their acceptance of the right to purchase the minerals, they said.”

The appellate court held that the trust suffered an injury when the minerals were sold, but the discovery rule delayed limitations.

Read the article.




South Carolina Family Settles Lawsuit Over Fire-Related Workplace Death

The family of a man who died from severe burns he suffered in 2015 while working at a paper plant in North Charleston has settled the wrongful death suit filed in his case after jury selection in the U.S. District Court in South Carolina.

Terms of the settlement, filed in U.S. District Court Judge David C. Norton’s court, are confidential.

According to a release from the firms representing the plaintiffs, Brian Allen, 43, of Summerville, was on a lift at the plant performing welding work above several tanks of solution. The tanks should have contained non-flammable sodium hydrosulfide used in paper manufacturing. However, later analysis by the plaintiffs’ experts would show one or more of the tanks actually contained gasoline, which ignited and severely burned Allen. He suffered for eight months before succumbing to his injuries.

Allen’s family filed suit against the companies that supplied the sodium hydrosulfide and the companies that transported it. The paper manufacturer was not a defendant in the case.

“An intense three-year litigation battle can be very difficult emotionally for a family which has already experienced a traumatic workplace injury and death,”  said James E. Payne,  partner at Provost Umphrey, who represented Kristie Allen, Allen’s widow. “This resolution will allow Kristie and the rest of the family to put the litigation behind them and try to focus on the positive memories of Brian as best as they can.”

The case required the taking of over 40 depositions and the production of over 45,000 pages of documents. There were more than 200 exhibits.

“Kristie Allen and the Allen family suffered a great loss,” said Provost Umphrey attorney Matthew Matheny, who also represented Mrs. Allen. “We are very pleased that the settlement will financially serve Mrs. Allen and her family for many years to come. After a long and contentious litigation, a degree of justice has been served.”

“To my knowledge, this was the largest post-jury selection settlement of a plaintiff’s wrongful death and survival action in the U.S. District Court for the District of South Carolina in recent memory. I was honored to serve as lead local counsel on behalf of the Allen family,” said Motley Rice LLC lawyer Marlon Kimpson who along with attorney W. Taylor Lacy also represented Mrs. Allen.



Lenovo $8.3M Spyware Class Action Settlement Gets Initial OK

Lenovo Group Ltd. can move ahead with an $8.3 million settlement to end a class action that its ad software exposed customer laptops to performance, privacy, and security problems, reports Bloomberg Law.

The federal court’s initial approval of the settlement comes four months after Lenovo and the consumer class filed with the court to end the spyware action. The SuperFish software, which Lenovo began installing in 2014, could access customer Social Security numbers, financial data, and sensitive heath information, the court said.

“Lenovo is set to pay $7.3 million to the settlement fund, and SuperFish will kick in another $1 million from a prior deal with consumers over the spyware issue,” according to Bloomberg’s Daniel R. Stoller.

Read the Bloomberg Law article.



Houston Appellate Lawyer J. Stephen Barrick Named Partner at Hicks Thomas

Texas-based litigation boutique Hicks Thomas LLP announced that Houston appellate specialist and trial lawyer J. Stephen Barrick has been named a partner in the firm.

Barrick concentrates his practice on civil appeals in state and federal courts. The substantive area of his appellate practice includes contracts, oil and gas, intellectual property, insurance coverage, and catastrophic personal injuries. He has been listed as in the Texas Super Lawyers rating guide every year since 2012, is board certified in civil appellate law, and serves as the firm’s lead appellate lawyer.

He is Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization.

Read more about the announcement.




PG&E’s Legal Exposure to Liability for Fires Could Cost Customers – Or Lead to Bankruptcy

If Pacific Gas and Electric Company is found liable for the devastating California fires now burning, the company’s customers could be on the hook to pay the bill, or even lead to a PG&E bankruptcy, according to The New York Times.

“Many fires in recent years have been caused by downed power lines serving California’s utilities. State officials have determined that electrical equipment owned by PG&E, including power lines and poles, was responsible for at least 17 of 21 major fires in Northern California last fall. In eight of those cases, they referred the findings to prosecutors over possible violations of state law,” write Times reporters Ivan Penn and Peter Eavis.

Some victims of the latest fires have sued PG&E, alleging negligence and health and safety code violations by the utility company.

Read the NY Times article.



Attorney’s Eye-Popping $460,000 in Earnings to Defend Indigent Clients Prompting Changes

A Texas county is adding more controls after fees to an attorney representing indigent clients this past fiscal year topped $460,000 — more than double the amount of any other court-appointed lawyer in Collin County, reports The Dallas Morning News.

Attorney Marc Fratter, 46, also earned significantly more than anyone on the county payroll, including the district judges who approved his pay sheets, according to reporter Valerie Wigglesworth.

“Fratter said he put in long hours — billing as much as 100 hours a week at times — with his one-man firm handling the workload of as many as six attorneys. He pointed to judges’ signatures on all of his pay sheets. “I’m not hiding anything,” he said.

Read the Dallas News article.