A Missouri ruling is likely to end a contentious nine-year dispute between a local activist who claims that Husch Blackwell LLP, an AmLaw 100 firm — used the legal system to squelch his speech rights, according to Bloomberg Law.

Reporter Samson Habte explains that the court’s April 23 opinion highlights the difficulty of proving two types of tort claim — malicious prosecution and abuse of process — that disgruntled litigants could try to use to turn the tables on opposing parties and their lawyers.

The dispute started when John T. Impey ran for a school board seat  and campaigned against a $3 million bond proposal that L.J. Hart & Co. and its owner, Larry Joe Hart, underwrote. Husch Blackwell brought defamation and tortious interference lawsuit against Impey on Hart’s behalf.

The firm obtained a preliminary injunction that prohibited Impey from repeating some accusations against Hart; but when the campaign ended — and the bond initiative failed — Husch Blackwell advised Hart to drop the defamation case.

Read the Bloomberg article.

In a blog post, John McFarland of Graves, Dougherty, Hearon & Moody discusses a lawsuit over a petroleum lease dispute that led to a claim under Texas’ Anti-SLAPP statute.

He explains that a SLAPP is a “strategic lawsuit against public participation,” a suit intended to censor or intimidate critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.

The case involves the dispute over whether a petroleum company’s oil and gas lease had expired. When the property owner filed a suit for trespass, the production company filed counterclaims for breach of the lease. The property owner filed a motion to dismiss the counterclaims under the anti-SLAPP statute.

An appellate court found that the property owner had waived its right to protection under the anti-SLAPP statute because it agreed in the lease not to sue before giving prior notice and an opportunity to cure.

Read the article.

One of a court’s most frequent tasks is interpreting ambiguous contracts created by the use of ambiguous language in contracts; however, by the time a court is deciding the issue, costly litigation may have taken years, write Richard Raysman and Elliot Magruder for Holland & Knight.

In a post for the firm’s Ditigal Technology & E-Commerce Blog, they discuss a recent case in which parties to a software development and license agreement confronted this unfortunate truth, and both left unsatisfied.

In Apacheta Corp. v. Lincare, Inc., Apacheta sued for breach of contract in claiming that Lincare’s termination violated the right-to-cure provision because Lincare neither provided notice of breach nor a cure period.

Read the article.

“Pay when paid” clauses are common in the construction industry, according to Bradley Arant Boult Cummings, but courts generally disfavor conditions precedent (an event that must occur before another party’s performance is due) and will not observe their existence unless they are unambiguously laid out in the contract.

The article, published by JD Supra, states that “subcontractors and general contractors should be aware that if language in a contract clearly establishes that the prime contractor is only obligated to pay the subcontractor if the owner pays the prime contractor for that work, and the contract states that the subcontractor is taking the risk of the owner’s potential insolvency, then courts are likely to enforce the contract as written—condition precedent and all. This language establishes what is known as a pay if paid clause.”

Read the article.

Although limited liability protections normally insulate business owners from personal liability for their business’s debts, lenders routinely require a small business owner to sign a personal guaranty as a condition for a commercial loan to the business entity, points out Thomas C. Wolff, writing for Ward and Smith.

This requirement essentially circumvents the statutory protection against personal liability, he writes.

“Any potential guarantor should read a proposed guaranty agreement carefully and understand each contractual provision. Often the terms can be negotiated, even if a business entity is a startup and has limited assets and income,” writes Wolff.

In the article, he discusses continuing guaranties, unlimited and limited guaranties, joint and several liability, the obligation of contribution, guaranty of payment vs. guaranty of collection, the lender’s right to set-off, and the death of a guarantor.

Read the article.

Seyfarth Shaw has some advice for franchisor when considering their legal strategy in “no-hire” agreement class actions: franchisor employers should assess whether the joint employer risk is worth accepting in order to pursue the single-enterprise defense.”

In its Workplace Class Action Blog, the firm discusses class actions claiming that provisions contained in franchise agreements prohibiting the hiring of employees of other intrabrand franchisees without the consent of their employer violate the antitrust laws.

The authors discuss the single-enterprise defense, potential joint employer liability, and other defenses.

Read the article.

Trial attorney Alex Brauer, co-founder of the Dallas-based complex litigation boutique Bailey Brauer PLLC, has been selected to D Magazine’s 2018 Best Lawyers in Dallas listing.

Chosen for a third consecutive year for his commercial litigation work, Brauer represents companies and high net worth individuals involved in high-stakes business disputes, the firm said in a release.

The release said his practice spans various industries and issues including claims of fraud, breach of contract, breach of fiduciary duty, conspiracy, deceptive trade practices, trade secret theft, RICO, antitrust and violations of the Packers and Stockyards Act. He also has successfully defended against class actions and represents clients in complex tort matters, including negligence and wrongful death.

“This firm was built on the premise of providing sophisticated legal representation that results in aggressive, creative solutions. It is a description that also matches Alex’s practice,” said firm co-founder Clayton Bailey. “He is an exceptional attorney, deserving of this recognition.”

Founded in 2013, Bailey Brauer has received multiple honors for individual lawyers and the firm from BTI Consulting Group, Benchmark Litigation, U.S. News-Best Lawyers, The National Law Journal, The Best Lawyers in America and Texas Super Lawyers.

A graduate of Georgetown University Law Center, Brauer has served on several key Dallas Bar Association committees. He is a board member for the Readers 2 Leaders literacy program. He also has served on the Host Committee for the Great Investors’ Best Ideas Foundation, which benefits The Michael J. Fox Foundation for Parkinson’s Research and the Vickery Meadow Youth Development Foundation.

The Best Lawyers in Dallas list is based on a review of peer nominations conducted by D Magazine editors and a panel of the city’s most respected attorneys. The full listing appears in the publication’s May edition.

DePuy Orthopaedics and Johnson & Johnson will get a new trial after the previous one in 2016 ended with the companies having to pay $151 million in damages to five plaintiffs with alleged hip replacement injuries, reports the SE Texas Record.

The Fifth Circuit found that plaintiffs’ attorney Mark Lanier’s “deceptions furnish independent grounds for a new trial” that centered on Pinnacle artificial hips and that the trial court allowed the Houston lawyer to introduce “inflammatory character evidence.”

David Yates reports that Lanier told the Record he thought the opinion was “interesting” and that the legal reasoning upholding the various actions against Depuy and J&J are strong and important and will help all future cases.

Lanier said he thought the court misunderstood the issues of monetary representations about the doctors. He added that he plans to seek a retrial.

Read the Record‘s article.

Merck & Co.’s loss of a $200 million jury verdict for patent infringement shows that companies with internal prosecution staff need to observe strict rules for external communications, according to Bloomberg Law.

“The U.S. Court of Appeals for the Federal Circuit affirmed a district court’s judgment that Merck could not collect the award because of its ‘unclean hands’ in procuring the two patents asserted against Gilead Sciences Inc.,” writes Tony Dutra. “Under the unclean-hands doctrine, the lower court was reasonable in wiping out the entire amount because Merck’s patent attorney’s misconduct in 2004 directly affected its litigation position in 2013, the appeals court said.”

A Merck in-house lawyer listened in on a 2004 phone call during which another company divulged information on a compound being developed. The lawyer — despite being under a nondisclosure agreement — subsequently changed a Merck patent application that was in the works, narrowing the applied-for patent claims to cover what the other company disclosed, Dutra explains.

Read the Bloomberg article.

The Washington Post reports that the U.S. Court of Appeals for the Fourth Circuit ruled that Just Born Quality Confections, the firm that makes the candy known as Peeps, could not unilaterally stop enrolling new employees in a pension without paying a penalty, something it had tried to do since 2015.

Reporter Damien Paletta explains possible consequences: “The appeals court decision could have a major effect on hundreds of other companies that are trying to determine whether to continue making payments to their own multi-employer pension plans. A number of multi-employer plans have weak balance sheets, exacerbated by a wave of aging workers and new retirees. This dynamic has forced some firms to pay higher premiums to their pensions in an effort to boost solvency.”

The case arose when Just Born announced three years ago that it would no longer enroll new employees in the multi-employer pension it had participated in for decades and would instead divert money into a 401(k) plan for those workers.

Read the Post article.

DLA Piper represented Bregal Sagemount in the sale of its portfolio company Remote DBA Experts, LLC, a leading provider of remote database administration and cloud-managed services, to Madison Dearborn Partners, a Chicago-based private equity firm, the firm said in a release.

The DLA Piper team was led by Joe Alexander (Miami), the firm’s Southeast US managing partner and co-chair of US Private Equity, and included partners Daniel Rollman, Jamie Konn (both Atlanta), Omari Sealy (Miami), Julia Kovacs, Jennifer Kashatus (both Washington, DC), William Bartow (Philadelphia), Nathaniel McKitterick (Silicon Valley) and Drew Young (New York).

Morrison & Foerster announced the results of “Legal Risks to Consumer Products Companies in 2018,” a survey of senior in-house legal counsel at consumer products companies. Morrison & Foerster commissioned the survey to gain and share insights into consumer products companies and their key legal concerns, perceptions of emerging risks, and expectations for 2018.

The report includes the following findings:
• The most important drivers of change for consumer products companies in 2018 will be the economy (78%), government regulatory change (71%), and technological advancements (59%).
• 69% of respondents said that litigation was their biggest concern, followed closely by protection of brand equity (60%) and privacy and data security (56%).
• Approximately two out of five legal departments expect their litigation costs to increase in 2018. Estimated cost increases ranged from 5% to 11% or more.
• Approximately one in three legal matters in 2017 were considered high risk or complex, with one out of five in-house counsel expecting more high-risk lawsuits in 2018.
• Survey respondents expect that product liability (45%), data privacy (44%), and regulatory/compliance (42%) will give rise to the most new case activity.

“Consumer products companies have always faced unique legal challenges, but in-house counsel are now under more pressure than ever to protect their brand and keep their consumers’ trust,” said Erin Bosman, chair of Morrison & Foerster’s Product Liability and Counseling Practice. “Our survey revealed that, while reputation and litigation threats continue to grow, advancing technology ¬ like the Internet of Things ¬ has created an even more complex legal landscape that will force companies to anticipate and plan for previously unknown risks.”

“Our survey results show that the ever-changing regulatory environment is also top-of-mind for consumer products companies,” stated Julie Park, a partner in the Product Liability and Counseling Practice. “While the current federal government is unlikely to add regulations, state and local governments are taking a different approach and could implement changes on everything from climate change and nutrition to privacy and labor laws.”

Morrison & Foerster’s “Legal Risks to Consumer Products Companies in 2018” survey of consumer products companies was conducted in late 2017 by telephone, primarily by market research company YouGov. The survey incorporates responses from senior in-house counsel at more than 60 consumer products companies in the United States with revenues ranging from $250 million to $1 billion. Companies participating in the survey represent a range of consumer products, including electronics, foods and beverages, household products, apparel, cosmetics, and office products.

Read the report.

An Atlanta jury found Claud “Tex” McIver guilty of felony murder on Monday in the fatal shooting of his wife, Diane McIver, while they were riding in an SUV in 2016.

McIver is a former Fisher & Phillips partner.

The Atlanta Journal-Constitution reports: “Known as ‘The Fixer’ because of his ability to grease the wheels of bureaucracy and get things done, McIver appeared stunned as he was handcuffed by a Fulton County sheriff’s deputy and led from the courtroom following the verdict. McIver had lived a mostly charmed existence until the evening of September 25, 2016, when he shot his wife Diane in the back as they were being driven near Piedmont Park. He claimed it was an accident. Jurors didn’t buy it.”

The sentence carries a mandatory life sentence for the 75-year-old defendant.

“It’s unclear whether the jurors who leaned toward involuntary manslaughter knew they were accepting a deal that would likely send McIver away until death,” the Journal-Constitution reports in another article.

Read the Journal-Constitution article.

Bloomberg Law reports that the U.S. Supreme Court upheld an administrative review system that has helped Google Inc., Apple Inc. and other companies invalidate hundreds of issued patents.

The 7-2 court found that a U.S. Patent and Trademark Office review board that critics call a patent “death squad” wasn’t unconstitutionally wielding powers that belong to the courts.

Reporters Greg Stohr and Susan Decker provide background: “Silicon Valley companies have used the system as a less-expensive way to ward off demands for royalties, particularly from patent owners derided as “trolls” because they don’t use their patents to make products. Drugmakers and independent inventors complain that it unfairly upends what they thought were established property rights.”

Read the Bloomberg article.

Microsoft has named a new general counsel, reviving a position that was left vacant about two years ago when the former GC left to join music streaming company Spotify in 2016, reports The Seattle Times.

The new GC will be Dev Stahlkopf, most recently the deputy general counsel in the company’s HR legal team. She will report to Microsoft President Brad Smith, who also serves as chief legal officer. Smith’s responsibilities are not changing, the company said.

Reporter Rachel Lerman writes that Stahlkopf will focus on aligning the company’s legal teams and implementing new projects, the company said. The legal teams in Redmond will report to her.

Read the Seattle Times article.

Last week, the Democratic National Committee filed a lawsuit against the Russian Federation and the General Staff of the Armed Forces of the Russian Federation for a “brazen attack on American Democracy” in the 2016 presidential election.

The lawsuit accuses Russian intelligence of hacking into the DNC’s computer system and stealing information to use to its advantage, including interfering in the 2016 presidential election. WikiLeaks, Donald Trump Jr., and the Trump campaign are also named as defendants.

In a post on the website of Androvett Legal Media & Marketing, Dallas attorney David Coale of Lynn Pinker Cox & Hurst says the lawsuit has a lot of interesting points, but doesn’t think it will survive long-term judicial scrutiny.

“It’s flashy, but it’s hard to imagine it going very far. Civil cases are often stayed while criminal investigations are ongoing – like Mueller’s – and the damages are not obvious. But the lawsuit does force everyone to keep the DNC in the loop while everything else unfolds.”

Veteran Dallas attorney Rogge Dunn has established a new firm, the Rogge Dunn Group, PC.

In a release, the new firm said Dunn has experience representing executives, companies and brokers in business litigation, employment disputes and claims involving the Financial Industry Regulatory Authority (FINRA).

Joining Dunn at the firm are partners Gregory Clift, Bryan Collins, Josh Iacuone and Brian Shaw, and attorneys David Gross and John Lynch. All were previously with the firm of Clouse Dunn in Dallas.

“The timing was right to make this move, and my colleagues and I are excited about the opportunity to showcase our expertise, flexibility, and innovative approaches to resolving contentious disputes, both in the courtroom and at the bargaining table,” says Dunn. “We have a team of lawyers with big firm talent without the bureaucratic constraints.”

Dunn is certified in both Civil Trial Law and Labor and Employment Law by the Texas Board of Legal Specialization, and has been repeatedly honored among the state’s top litigators by his peers and a wide range of legal publications. He has been recognized on multiple occasions as one of the top 100 attorneys in Texas on the Texas Super Lawyers list, and has been repeatedly selected to D Magazine’s Best Lawyers in Dallas list.

The firm said Dunn has litigated claims on behalf of a number of high net worth individuals and Fortune 500 executives, as well as professional athletes, coaches, judges and corporate general counsel. While several of these cases have garnered national and international attention, Dunn has successfully resolved numerous other matters on a confidential basis.

Dunn earned his law degree with honors from The University of Texas School of Law, where he was a member of the Law Review and the school’s Board of Advocates. He received his undergraduate degree with honors from Southern Methodist University, and currently serves on the Associate Board of SMU’s Cox School of Business, as a member of the SMU Digital Accelerator Advisory Board, and as an adjunct professor of the school’s MBA program.

Barnes & Thornburg LLP has added David Kelly as a partner in the Intellectual Property Department in the firm’s Atlanta office. He joins from Hunton & Williams LLP, where he chaired that firm’s Life Sciences practice.

In a release, the firm said Kelly is a patent litigator who represents clients on a variety of intellectual property matters in the life sciences and technology industries, including medical device, pharmaceutical and molecular diagnostic, as well as synthetic biology and biotech companies. Kelly’s experience extends to managing IP due diligence and international patent prosecution dockets and acting as trial, appellate and inter partes review counsel in front of the U.S. Patent and Trademark Office and federal district courts.

“We’re excited to add David to our IP bench in Atlanta,” said Stuart Johnson, managing partner of the firm’s Atlanta office. “Our region’s tech ecosytem is one of the fastest growing in the U.S., which makes David’s medical and tech-focused legal practice directly applicable to the strategic opportunities we see in our region and elsewhere.”

On the trial side, Kelly has been lead trial lawyer on numerous cases involving patent infringement, trade secret misappropriation, and false advertising. He has deep knowledge and experience at every stage of litigation, including transferring cases to different venues, dismissing claims, obtaining summary judgement of patent validity and invalidity, obtaining sanctions against competitors, and winning appeals for both patent owners and accused infringers.

“David is a talented IP litigator and counselor to his clients,” said Julia Gard, chair of Barnes & Thornburg’s Intellectual Property Department. “His tactful ability and experience in successfully litigating high-stakes, multi-million dollar patent infringement cases will be a great advantage to our national practice visibility. His wide-ranging knowledge and impressive skillset in court will be a great benefit to our clients.”

Kelly received his J.D. from the University of California-Davis, and a double B.S. from the University of Georgia. He also completed two years of graduate coursework in microbiology and immunology at the University of North Carolina at Chapel Hill, where he worked in a well-known virology laboratory studying Epstein-Barr virus.

After opening an office in Seattle late last year, Buchalter announces that Jeffrey G. Frank has joined the firm as managing shareholder of the new office, and Bradley P. Thoreson, and Doug Prince have both joined as shareholders. All join from Foster Pepper where they were partners. Sherman Helenese joined the Seattle office in November of last year. He was previously with Garvey, Schubert & Barer. Mitchell J. Olejko, a Shareholder in Buchalter’s Health Care Practice Group, now practices out of both the San Francisco and Seattle offices.

“The decision to open an office in Seattle was a natural one as the city’s technology, financial services, real estate, and construction industries are all thriving. We are thrilled to welcome Jeff, Brad, Doug, and Sherman to the firm,” said Adam J. Bass, President and Chief Executive Officer of Buchalter. “We anticipate and look forward to further increasing our presence in Seattle in the near future.”

Frank has practiced in the areas of commercial, construction, and real estate litigation for more than 30 years. Frank is currently a Board Member of the Foundation for Washington State Courts King County Bar Foundation and serves on the Board of Trustees and as an Officer of the King County Bar Foundation. He earned his J.D. from Seattle University School of Law.

“Buchalter is very well-established in the California market, and I’m excited for the opportunity to expand the Firm’s footprint to Seattle as we counsel businesses in the State of Washington on increasingly complex corporate, finance, and real estate matters,” said Frank. “In addition to the opportunity to lead Buchalter’s expansion outside the States of California and Arizona, I was drawn to Buchalter because of its focus on client service.”

Thoreson concentrates his practice on complex commercial litigation representing both plaintiffs and defendants in a wide variety of contractual business and real estate disputes. During his 30 years of practice, Thoreson has successfully tried more than 40 cases to verdict, both in state and federal courts. Active in community philanthropy, Thoreson currently serves on the Board of Trustees of Seattle Pacific University and the Board of Governors for the Washington Athletic Club, where he is also a member of the 101 Club. In addition, he recently completed a two-year term as Board Chair of the Corporate Board of Directors for the Boys & Girls Clubs of King County. Thoreson earned his undergraduate degree from Seattle Pacific University, where he played basketball, and received his J.D. from Seattle University School of Law.

“Given the depth and breadth of Buchalter’s expertise in the areas where I practice, joining Buchalter presents an incredible opportunity for me and my clients. As a result, I could not be more pleased to help launch Buchalter into this market. For me, my practice and my clients, the firm and its culture is the perfect fit,” said Thoreson.

Prince has over 35 years of experience in asset based lending. He is admitted to practice in both Washington and Oregon. Prince is a current Board Member of Impact Capital and Mary’s Place and serves on the executive committee of both boards. He earned his J.D. from Stanford University Law School.

Helenese’s practice focuses on complex intellectual property and technology transactions, privacy and data security. He represents clients ranging from emerging growth to public corporations in the technology, retail, advertising, transportation, consumer products, and professional services industries. Helenese earned his J.D. from the University of Utah, SJ Quinney College of Law, his M.B.A. from Seattle Pacific University, his M.A. from the University of Southern Maine, and his B.A. from Colby College.

Hillary Frommer of New York City has recently been appointed co-chair of the New York County Lawyers Association’s Estates, Trusts and Surrogate’s Court Practice Committee. Her three-year term begins on July 1, 2018.

Frommer is counsel with the firm’s Trusts and Estates department. She focuses her practice in litigation, and handles all types of matters in the New York Surrogate’s Court, and matters in the New York Supreme Court involving estates. Hillary earned her J.D. from Chicago-Kent College of Law, with honors, and her B.A. from Cornell University.

In a release, the firm said the New York County Lawyers Association is one of the largest, most influential bar associations in the country. It has pioneered some of the most far-reaching and tangible reforms in American jurisprudence and public policy.