A $98 million verdict secured by Boyd, Powers & Williamson has been inducted into the VerdictSearch Texas Verdicts Hall of Fame.

In reaching the December 2017 verdict, a Dallas County jury found that BBVA Compass Bank and one of its executives had committed fraud during loan renewal and modification negotiations with a developer of three luxury subdivisions in northeast Tarrant County following the 2008 financial crisis.

Lead trial attorney Derrick Boyd presented evidence, including email correspondence, showing that the bank executive had been actively working to sell the properties while simultaneously promising developer David Bagwell that the bank was not selling the loans and intended to extend his loan.

A $96.2 million final judgment in the case in 2018 preserved all but one portion of the verdict and added pre- and post-verdict interest.

Read details of the case.

The current, third quarter 2019 issue of the Defense Counsel Journal (DCJ), published by the International Association of Defense Counsel (IADC), features numerous articles that highlight important trends in the law, as well as an introduction by newly elected IADC President Amy Sherry Fischer.

The quarterly DCJ spotlights the IADC’s defense bar leadership through its articles about legal development and reform issues, as well as the practice of law in general. DCJ articles are written by members of the IADC, which is a 2,500-member, invitation-only, worldwide organization that serves its members and their clients, as well as the civil justice system and the legal profession.

“The Defense Counsel Journal is a significant part of the contributions of the IADC during its history,” said Fischer, a shareholder at Foliart, Huff, Ottaway & Bottom in Oklahoma City, Okla.

DCJ editor and former IADC board member Kenneth R. Meyer added that the current DCJ edition includes “three exciting and helpful articles.” These articles cover several significant proposed changes to the Federal Rules, insurance coverage issues involving inverse condemnation and public water systems, and the impact of a recent Supreme Court decision on maritime jurisdiction over asbestos claims.

The IADC’s third-quarter 2019 DCJ is available for free and without a subscription via the IADC’s website.

Following are brief summaries of key articles included in the third-quarter 2019 issue of the DCJ:

“Federal Civil Rule Reform – An Update” by Christopher E. Appel, of counsel, and Mark A. Behrens, co-chair of the Public Policy Practice Group, both at Shook, Hardy & Bacon L.L.P. in Washington, D.C. This article outlines proposed major changes to the Federal Rules of Civil Procedure and the Federal Rules of Evidence. If implemented, these changes could prove enormously consequential for all civil defendants.

“Insurance Coverage Rules for Inverse Condemnation Actions Involving Public Water Systems” by Paul Fuller, a director of the American Association of Water Distribution & Management and an insurance professional specializing in public water systems. This article encapsulates the problems owners of public water systems face from inverse condemnation – a topic at the crossroads of insurance and land use law. The article covers the legal theory’s underlying mechanics, available protections, and emerging areas of liability. The article also examines insurer defense and indemnity obligations for those insurance policies from which such action cloaks as a potential policyholder right.

“In the Wake of Devries: Revisiting the Extension of Maritime Jurisdiction Over Asbestos Claims” by Brian J. Schneider, a shareholder at Moran Reeves Conn PC in Richmond, Va. This article explores the impact of the recent Supreme Court decision in Air & Liquid Systems Corp. v. Devries. The article examines admiralty law and its applicability to proof issues relating to equipment manufacturers’ liability for component parts.

About the International Association of Defense Counsel
The IADC is the preeminent invitation-only global legal organization for attorneys who represent corporate and insurance interests. Founded in 1920, the IADC’s members hail from six continents, 52 countries and territories, and all 50 U.S. states. The core purposes of the IADC are to enhance the development of skills, promote professionalism, and facilitate camaraderie among its members, their clients, as well as the broader civil justice community.

Senators from both parties criticized a nominee for a federal appeals court for declining to answer questions Wednesday about his work in the Trump White House and Education Department, according to an Associated Press report.

Trump has nominated Steven Menashi, an associate White House counsel, to a seat on the New York-based 2nd U.S. Circuit Court of Appeals.

Senators from both parties at the Senate Judiciary Committee hearing complained as Menashi refused to answer questions about his work on immigration issues, including a policy to separate migrant children from their families at the U.S.-Mexico border.

“This isn’t supposed to be a game,” Sen. John Kennedy, R-La., told Menashi.

Read the AP report.

A federal court document filed by Jones Day and local counsel Gentry Locke appeared to contain many redactions to protect grand jury information in a criminal case against their pharmaceutical client, reports the ABA Journal.

When it was discovered that the redactions could be read by cutting and pasting the blacked-out sections into a new document, U.S. Magistrate Judge Pamela Meade Sargent ordered the law firms on Wednesday to show cause why they shouldn’t be sanctioned for the error.

The client is Indivior, a U.K.-based addiction-treatment company that makes an under-the-tongue form of the opioid dependence drug Suboxone.

Read the ABA Journal article.

Politico is reporting that Sen. Ted Cruz will oppose President Donald Trump’s nominee for the 5th Circuit Court of Appeals, Halil Suleyman “Sul” Ozerden, a major setback for the embattled nomination.

The report says conservative opposition places in doubt the future of Ozerden, who is a close friend of acting White House chief of staff Mick Mulvaney, and whose nomination Mulvaney pushed over the objections of the White House Counsel’s office.

“Unlike most other Trump judicial nominees, Ozerden lacks explicit backing from conservative judicial groups like the Judicial Crisis Network,” Politico reports. “Carrie Severino, the group’s chief counsel, wrote last year that ‘we could do better than Judge Ozerden’ in Mississippi.”

Read the Politico article.

The Washington Post reports that state attorneys general  are initiating sweeping antitrust investigations against Silicon Valley’s largest companies, probing whether they undermine rivals and harm consumers.

More than 40 attorneys general are expected to announce their plan to investigate Google, delivering a rare rebuke of the search-and-advertising giant — and its efforts to maintain that dominance — from the steps of the U.S. Supreme Court, writes the Post‘s Tony Romm.

Romm explains that the states are potent actors in their own right, with the power to invoke local laws on antitrust and consumer-protection and to tap Washington’s antitrust statutes on behalf of their residents.

Read the  Post article.

When it comes to trade secrets, companies should understand that the federal government is increasingly pursuing criminal prosecution, warns Procopio partner Mindy Morton.

“Criminal prosecution of trade secrets is nothing new,” she writes in a post on the Procopio website. “Trade secrets plaintiffs should always consider whether to involve the state or federal authorities in their investigations. In the past, however, the conventional wisdom was that it was difficult to interest district attorneys or U.S. attorneys in business disputes involving trade secret theft. Now, however, the scope of the problem and the government’s renewed focus on stopping international intellectual property theft have made parallel criminal and civil investigations commonplace.”

Read the article.

Zapproved has published “The Definitive Guide to Legal Hold Best Practices,” a guide to effectively preserving information for use in litigation.

The guide can be downloaded from Zapproved’s website at no charge.

It provides clear advice on recognizing trigger events and scoping preservation efforts; recommendations for how to issue, monitor, and release legal holds; analyses of common points of preservation failure; helpful checklists; and case law examples.

Download the guide.

A legal victory for Delta Air Lines this year is unique in that it is the first time that a court has determined that a business owes no obligation of privacy to a customer because its privacy policy explicitly disclaims any type of contractual relationship between the business and its customers, writes Sunrita Sen in the Frost Brown Todd fbtTech Blog.

The case involved a breach of contract claim over the data breach suffered by the airline in 2017.

A U.S. district judge dismissed the claim, agreeing with Delta that the Airline Deregulation Act preempted the plaintiff’s breach of contract claims.

Read the article.

The company that owns a scuba dive boat that caught fire and sank off California, killing 34 people, has sought to avoid liability by invoking a 19th-century law that has shielded vessel owners from costly disasters such as the sinking of the Titanic, according to reports from Reuters and the Los Angeles Times.

“Accidents that occur on land with a similar death toll could lead to more than $100 million in damages, lawyers said,” Reuters reports. “But on the water, maritime law applies, and any lawsuits will run up against the statute invoked late on Thursday by Truth Aquatics, which allows the owner of a vessel and its insurer to escape or severely limit its liability in certain cases.”

Owners of the boat have cited an 1851 statute in asking a judge to eliminate their financial liability or lower it to an amount equal to the post-fire value of the boat, or $0. The owner of the Titanic, which sank in 1912, limited its liability in lawsuits in the United States to $92,000, which was the value of the lifeboats that survived the accident.

Read the Reuters article.

A New Jersey judge struck a BigLaw attorney’s closing argument for Johnson & Johnson on Wednesday in a case alleging asbestos in the company’s talcum powder caused mesothelioma in the plaintiffs’ stomach linings, reports the ABA Journal.

Judge Ana Viscomi of New Brunswick struck from the record the entire argument made by Diane Sullivan, a litigation partner with Weil, Gotshal & Manges.

According to reports, Sullivan told jurors that experts for the plaintiffs didn’t draw a connection between talcum powder and mesothelioma until they were hired by the plaintiffs. “When you don’t have evidence, sometimes you have to create it,” Sullivan said.

Viscomi said the closing argument was “replete with conduct this court has already warned you about.”

Read the ABA Journal article.

A recent ruling illustrates how courts will typically enforce a valid forum selection clause, absent a compelling showing of prejudice to the party opposing a lawsuit in the agreed-to forum, according to a post by Murtha Cullina’s Family Business Perspectives blog.

Michael P. Connolly explains that “while substantive disputes under an agreement may still arise, a forum selection clause at least may provide a measure of certainty from the outset as to the location of any future legal action. Without such a clause, a party to an agreement may be forced to litigate in a distant, inconvenient or otherwise unwanted location, which may ultimately increase the expense, disruption and risk in connection with any future lawsuit.”

Read the article.

Connie Lewis Lensing has joined Bradley Arant Boult Cummings LLP’s Nashville office as counsel in the Litigation Practice Group.

After almost 30 years of service, Lensing recently departed FedEx Express, the world’s largest express transportation company, as its senior vice president responsible for all U.S. litigation as well as leading the Environmental, Risk Management and Compliance groups within the legal department.

In a release, the firm said Lensing has experience handling litigation defense and prevention, as well as domestic employment matters. At FedEx Express, she built and led a team of more than 200 professionals. She pioneered the “in-housing” of litigation and trial responsibility for corporate legal departments and is a nationally recognized corporate legal innovator. Her FedEx Express responsibilities included all U.S. and U.S. Virgin Islands litigation, including employment, commercial, benefits, class actions, wage and hour, antitrust, government actions, and Equal Employment Opportunity Commission charges. Ms. Lensing was responsible for FedEx offices in Memphis, Tenn., and Orange County, Calif.

Lensing currently serves as vice chair of the Board of Directors and as chair of the Executive Committee of the U.S. Chamber of Commerce’s Institute for Legal Reform, which is the Chamber’s primary policy advocacy body. She also serves as a member of the Board of Directors and Executive Committee and as secretary treasurer of Lawyers for Civil Justice. In addition, she is a member of the Board of Directors and Executive Committee of the National Civil Rights Museum. Along with numerous other Bradley attorneys, Lensing is a member of the International Association of Defense Counsel (IADC), the preeminent invitation-only global legal organization for attorneys who represent corporate and insurance interests. For the IADC, she also previously served on the Board of Directors as corporate vice president, and as Dean of the IADC’s Corporate Counsel College.

A Fellow of the both the Memphis and Tennessee bar foundations and a former board member of the Memphis Bar Foundation, Lensing is a past member of the Tennessee Trial Court Vacancy Commission and a past president of the Leo Bearman, Sr. American Inn of Court. She is a past board member for the Campbell Clinic Foundation, which is devoted to community healthcare, research, and education. Additionally, she has served on the FedEx Officers’ Diversity Board and as a vice president and board member of the International Association of Women in Aviation.

Ms. Lensing is a recipient of the University of Memphis Alumni Association’s 2019 Pillars of Excellence Award. Her other past awards include the University of Arkansas 2016 Citation of Distinguished Alumni, the Women’s Law Student Association’s 2016 Gayle Pettus Pontz Award for Outstanding Woman in Law, and the Minority Counsel Association’s Employer of Choice Award. In addition, she is a five-time recipient of FedEx’s most prestigious award, the Five Star, including the CEO award, and was named to the Memphis Business Journal’s 2013 Memphis Super Women in Business.

Lensing received her J.D. from the University of Arkansas School of Law and her Bachelor of Arts from the University of Arkansas.

Miller & Chevalier Chartered announced that Paul A. Leder, former director of the Office of International Affairs (OIA) at the United States Securities and Exchange Commission (SEC), joined the firm as an of counsel in the Litigation Department.

In a release, the firm said Leder Leder led the SEC’s international enforcement and regulatory program, where he worked with senior government officials in the U.S. and throughout the world. He collaborated with foreign regulators, particularly those in Latin America, in cross-border investigations, and provided policy advice to foreign governments and organizations regarding compliance with the FCPA and other anti-bribery laws. Leder also represented the SEC in international organizations, including the International Organization of Securities Commissions (IOSCO) and the Financial Stability Board.

Prior to his latest role at the SEC, Leder was a partner at Richards Kibbe & Orbe LLP where he represented clients in government investigations and advised on laws and regulations associated with international regulatory issues. Before that, Leder spent more than a decade at the SEC, starting as a trial lawyer in the Division of Enforcement in 1987, joining the Trial Unit soon after the SEC received penalty authority and co-counseling the SEC’s first jury trial. When the OIA was established two years later, Leder joined the leadership team, first serving as assistant director and later as deputy director. From 1997 to 1999, he served as senior adviser for international issues to SEC Chairman Arthur Levitt.

Leder began his legal career as a trial lawyer at the Public Defender Service (PDS) for the District of Columbia where he tried more than 25 jury trials. He is the seventh former PDS lawyer at Miller & Chevalier, including Litigation Department Chair Andrew Wise.

Leder earned his J.D., cum laude, from the University of Michigan Law School, and his B.A., magna cum laude, from the University of Michigan. He is currently a Senior Fellow in the Milken Global Market Development Practice.

The judgment in the Oklahoma opioid litigation, if upheld, could yield a huge return on investment for the private lawyers hired by Oklahoma’s Republican Attorney General Mike Hunter, reports Legal Newsline.

“Under their 2017 contract with the state, those lawyers — Whitten Burrage, Nix Patterson and Glenn Coffee & Associates — get 25% of any award up to $100 million with that percentage falling to 15% of anything over $500 million,” writes Legal Newsline’s Daniel Fisher.

And more big bucks could be in the pipeline: “They stand to earn $90 million in fees from this verdict, on top of $59 million of the $260 million Purdue Pharma settlement and another $21 million from an $85 million Teva settlement in June.”

Read the Legal Newsline article.

The families of three American war veterans who died at a railroad crossing in Midland, Texas, in 2012 are asking the U.S. Supreme Court to review their legal case, arguing it could impact safety at many of the nation’s 250,000 railroad crossings.

The veterans – Army Sgt. Maj. Lawrence Boivin, Marine Chief Warrant Officer 3 Gary Stouffer and Army Sgt. Maj. William Lubbers – were three of the four who died when a Union Pacific train rammed a parade float carrying wounded war heroes. The veterans’ families sued Union Pacific, but a Texas court granted summary judgment for the railroad, and the 11th Court of Appeals in Eastland affirmed. Earlier this year, the Texas Supreme Court declined to hear the case.

“We believe the Texas courts have made significant errors of nationwide importance and we’re asking the U.S. Supreme Court to correct them before there’s another needless tragedy elsewhere,” said attorney Doug Alexander of Alexander Dubose & Jefferson in Austin, who represents the plaintiffs.

According to Alexander, the most critical error involves the amount of warning time that elapsed before the Union Pacific train entered the Garfield Street crossing, where the crash occurred. Based on a federally mandated agreement between the railroad and the Texas Department of Transportation, the warning time was supposed to have been set at 30 seconds.

Union Pacific actually set the timer higher – to 35 seconds – which compensated for a defect in the track’s warning-system circuitry and allowed the system to give 30 seconds warning, as it was supposed to, plaintiffs claim in filings.

According to a release from the plaintiffs’ law firm, eight months before the crash, Union Pacific reduced the warning time by 10 seconds, without getting written approval from the Texas DOT or the City of Midland, as it had agreed to do. Coupled with the circuitry defect, the float the veterans were riding on received only 20.4 seconds of warning, almost 10 seconds less than mandated.

Union Pacific argued the warning still exceeded the 20-second minimum that a Federal Railway Administration (FRA) regulation requires and the Texas courts agreed.

But the plaintiffs argue the 20-second amount is a baseline minimum, not intended to replace the requirements of the agreement, but rather enforce them. They point to one of the FRA’s own bulletins, which says some crossings require at least 35 seconds of warning time or even more.

“If this decision is allowed to stand, then Texas courts have effectively nullified the federally mandated agreements for warning times at crossings all over the country,” Mr. Alexander said. “We don’t believe that’s what Congress intended and we certainly don’t believe it is safe.”

Supporters of the veterans’ families have been signing an online petition (https://www.change.org/p/union-pacific-justice-for-all-veterans-killed-by-union-pacific-train) asking Union Pacific to take care of the veterans’ families.

The case is Catherine Stouffer et al. v. Union Pacific Railroad Co., in the Supreme Court of the United States.

Law firm Dentons Europe LLP won Delaware court approval to have a former client’s $92 million arbitration award seized so that it can be paid for its legal services, reports Bloomberg Law.

The firm sued its former client, Customs and Tax Consultancy LLC (CTC), after CTC allegedly failed to pay for legal fees accrued in its arbitration victory against the Democratic Republic of the Congo.

The court sided with Dentons’ effort to get paid for its legal fees by having the court authorize arbitration award broker ClaimTrading Ltd. to seize the award and market it on behalf of CTC, explains Bloomberg’s Leslie A. Pappas.

Read the Bloomberg Law article.

A court recently ordered the seller of a car wash property in New Jersey to fully remediate previously undiscovered environmental contamination at the property in accordance with its contractual obligations, according to a post in the Riker Danzig Environmental Law Blog.

Jaan M. Hause explains in the post that “the seller could have more carefully crafted the language of the rider to limit its remediation obligations. Unfortunately for seller, the language in the rider obligating seller to remediate was extremely broad, and thus exposed seller to additional, costly liabilities that it did not intend to assume.”

Read the article.

Breaking with eight other circuits, the Seventh Circuit ruled Wednesday that the Federal Trade Commission lacks authority to seek restitution from companies that defraud consumers, and vacated a $5 million judgment against a credit-monitoring company, reports Courthouse News Service.

The case involves a lower court’s imposition of $5 million in restitution from the target of an FTC action. Regulators said Michael Brown and his company, Credit Bureau Center, offered consumers “free” credit reports and then automatically enrolled them in a $29.94 monthly membership to a credit-monitoring service without notice.

Section 13(b) of the Federal Trade Commission Act authorizes the FTC to seek restraining orders and injunctions, but not specifically restitution, writes Courthouse News’ Lorraine Bailey.

Read the Courthouse News Service article.

The U.S. Chamber of Commerce and other business and employer groups have just submitted amicus briefs calling on the 9th Circuit to reconsider decisions that, in the views of these amici, eviscerate mandatory arbitration provisions, writes Alison Frankel in a Reuters report.

The briefs come in the wake of the 9th Circuit’s June 28 rulings in which plaintiffs claimed they couldn’t be forced into arbitration because they sought injunctions against corporate defendants.

The court found that because California’s policy of allowing consumers to pursue public injunctions does not specifically obstruct arbitration, it’s not precluded by the Federal Arbitration Act.

Read the Reuters article.