The Texas Supreme Court ruled that a pipeline company could take private property by eminent domain, answering the question of whether or not the pipeline qualified as a “common carrier” under the Texas Natural Resource Code, reports Snell & Wilmer L.L.P. in its S&W Environmental & Natural Resources law blog.

In the article, Rachel M. Lynn explains that, typically, the power of eminent domain is granted to governmental entities rather than private institutions. Under Texas law, however, a common carrier has the right and power of eminent domain.

“The test utilized by the court to determine [the pipeline company’s] common carrier status was whether or not the pipeline would serve the needs of the public, not only those of the builder,” Lynn writes. “To pass this test, the court noted, the pipeline would need to provide reasonable proof of a future customer.”

Read the article.

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Fitch, Even, Tabin & Flannery LLP will present a free webinar, “Alice in Chains? Lessons Learned from Recent Federal Circuit Opinions on Patentable Subject Matter,” presented by Eric L. Broxterman and David A. Gosse.

The webinar will take place on Wednesday, Jan. 25, 2017, at 9:00 am PST / 10:00 am MST / 11:00 am CST / 12:00 noon EST.

The Federal Circuit has overruled several district court opinions finding patents invalid for lack of patentable subject matter, most recently in Enfish v. Microsoft, BASCOM v. AT&T Mobility, and McRO v. Bandai Namco Games America. This webinar will review these and other Federal Circuit opinions that have begun to define the boundaries of “abstract ideas” under the Supreme Court’s Alice test.

The event will cover the following topics and more:
• The test for patentable subject matter under Alice v. CLS Bank
• A survey of recent Federal Circuit cases
• Considerations when responding to a motion for dismissal based on Alice
• How claim construction can alter the analysis of patentable subject matter

CLE credit has been approved for California and Illinois and is pending in Nebraska. Other states may also award CLE credit upon attendee request.

Following the live event, a recording of the webinar will be available to view for one year at fitcheven.com.

Register for the webinar.

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Days before President-elect Donald Trump was to take the oath to uphold the Constitution, he followed through on a more painful obligation: coughing up $25 million to settle litigation over his defunct Trump University real estate seminar program, reports Politico.

Josh Gerstein reports that Trump University — now known as the Trump Entrepreneur Initiative — transferred the funds Tuesday night, according to two sources involved. The settlement provides enough money pay back about half of the funds paid by students for the seminars.

“Last March, Trump vowed not to settle the long-running litigation — two federal class-action fraud lawsuits and a parallel state court action brought by New York Attorney General Eric Schneiderman.” writes Gerstein. “The suits accused Trump U. of deceiving students by falsely claiming that Trump knew the instructors and that the school was an accredited university.”

Read the Politico article.

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Veteran trial lawyer Jay Old has joined the commercial litigation firm Hicks Thomas LLP, where he will represent construction, insurance, petrochemical and healthcare companies, effective Jan. 1, the firm announced in a news release.

Old’s addition will also include the opening of offices in Austin and Beaumont, further extending the geographic reach of the Houston-based firm, now in its 20th year.

Five other lawyers from his firm will joined Hicks Thomas, including labor and employment attorney Jim Henges.

Old frequently speaks at continuing education programs for lawyers. He is also a former president of the Texas Association of Defense Counsel and chaired the Construction Law Section of the State Bar of Texas.

Read more about the new hire.

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Thiru Vignarajah will join DLA Piper as partner with the firm’s litigation practice in the Baltimore office. Vignarajah most recently served as deputy attorney general for the state of Maryland.

Vignarajah’s tenure as a prosecutor began in 2009 as assistant US attorney in the District of Maryland. Beginning in 2011, he served as division chief of the Major Investigations Unit of the Baltimore City State’s Attorney’s Office. In 2015, Maryland Attorney General Brian Frosh named Vignarajah deputy attorney general; in that office, he played a leading role in significant criminal, civil rights and juvenile justice matters.

“Given his high-profile litigation and trial experience, which includes appellate and US Supreme Court work, Thiru will be a strong addition to our firm, particularly with his knowledge of white-collar, privacy and environmental matters,” said James Brogan, co-chair of DLA Piper’s US Litigation group. “He has a strong work ethic and impressive legal credentials, which will make him an asset to our global client base.”

In his government service, Vignarajah served as first chair in a number of successful high-profile prosecutions. As deputy attorney general, Vignarajah also led or supervised counsel on several notable Supreme Court, federal and state matters, including Ross v. Blake and Exxon v. Maura Healey.

“Thiru is well-known and respected in the regional legal community and beyond, and his reputation will enhance the profile and capabilities of our Baltimore office,” said Brett Ingerman, DLA Piper’s office managing partner in Baltimore. “He’s a top-notch first-chair trial lawyer with a remarkable set of legal credentials.”

Vignarajah received his J.D., magna cum laude, from Harvard Law School, his M.A. in Medical Law and Ethics from King’s College London, and his B.A. from Yale University. He was president of the Harvard Law Review and served as law clerk to Judge Guido Calabresi and Supreme Court Justice Stephen Breyer.

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Zapproved has published the proceedings catalog from the 2016 PREX, the premier conference for in-house e-discovery professionals. The catalog is available for free downloading.

The volume includes reflections shared by participants and faculty about the ongoing challenge of sustainably managing and preserving data to meet e-discovery demands.

It includes a recap of the fireside chat with Hon. Shira Scheindlin led by attorney and professor Maura Grossman; roadmaps for creating the perfect preservation notice and plan; strategies for improving e-discovery process and compliance; and predictions about the future of legal software and its impact on e-discovery. The content also covers the panel review where six judges summed up 10 cases and their key “takeaways” from each one in an hour.

Download the PREX catalog.

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A federal judge has dismissed claims brought by a South Carolina insurance company against Texas-based insurance agency Highpoint Risk Services and its owner, Charles David Wood Jr. , according to a report published by Androvett Legal Media & Marketing.

That lawsuit sought more than $40 million in damages for an alleged shortfall in reinsurance collateral and claims relating to the issuance of various workers’ compensation policies. Last week, Senior U.S. District Judge Cameron McGowan Currie ruled that Companion Property and Casualty Insurance Co. was contractually barred from recovering any alleged shortfall from Wood, the report says.

In dismissing other claims against Highpoint and Wood for alleged breach of fiduciary duty and alleged violations of the South Carolina Unfair Trade Practices Act, the court found that “there is no evidence Highpoint (or Wood) owed or breached” a fiduciary duty to Companion in connection with the issuance of Companion’s workers’ compensation policies.

“The court has dismissed the core of the case brought by Companion,” said Michael Gardner, name partner at Dallas-based law firm Gardner Haas and counsel for Wood and the defendant companies. “An insurer cannot avoid the terms of its own policies and can’t complain when its agreements are given their clear and natural effect.”

Companion, purchased by Enstar Group in 2015, now operates as Sussex Insurance Company and remains headquartered in Columbia, S.C.

Photo by Brian Solis

Mark Zuckerberg, chief executive of Facebook, testified Tuesday in a trial that could cost his company $2 billion if a federal jury in Dallas finds that a company bought by Facebook stole technology that eventually went into a virtual reality headset.

A New York Times report on the trial says the “dispute started more than two and a half years ago when ZeniMax Media sued Oculus just months after Facebook announced that it would acquire the start-up. ZeniMax accused Oculus of stealing important elements of the technology that went into the creation of the headset, eventually including Facebook among the parties it was suing.”

Reporters Nick Wingfield and Mike Issac write that this case defied predictions by reaching a jury trial.

ZeniMax’s case is based on the idea that one of its former employeesshared ZeniMax virtual reality technology with a founder of Oculus, during the company’s early days, technology for which ZeniMax was never compensated, according to the report.

Read the NYT article.

The Rules of Evidence protects communication between attorneys and clients from being revealed to the other side during a dispute. It’s a basic concept found in federal and state rules of evidence throughout the country. It often comes into play when an employee or former employee alleges harassment or other wrongdoing, according to a report published by Lynch Service Company.

Harassment accusations are often a surprise. The company needs to figure out what really happened, and time is almost always an issue. It’s understandable that leaders want to start asking questions and investigating the situation.

If this happens in your organization, make sure your team resists the urge to jump into an investigation without an appropriate plan or your company could lose its attorney-client privilege. In many cases, the company accused of wrongdoing is unpleasantly surprised to learn that they will be forced to give the other side access to many of the internal communications the company assumed would be kept private. The human resources team and managers must navigate early investigations carefully and make sure the proper individuals are conducting them.

Read the article.

A federal judge has dismissed claims brought by a South Carolina insurance company against Texas-based insurance agency Highpoint Risk Services and its owner, Charles David Wood, Jr.

In 2014, Highpoint filed a lawsuit against Companion Property and Casualty Insurance Co. in Texas seeking reimbursement for more than $30 million in workers’ compensation claims payments, according to an article published by Androvett Legal Media and Marketing. Companion filed a countersuit in South Carolina against Highpoint and other companies owned by Wood. That lawsuit sought more than $40 million in damages for an alleged shortfall in reinsurance collateral and claims relating to the issuance of various workers’ compensation policies. Companion, purchased by Enstar Group Ltd. (NASDAQ: ESGR) in 2015, now operates as Sussex Insurance Company and remains headquartered in Columbia, S.C.

On Jan. 10, Senior U.S. District Judge Cameron McGowan Currie ruled that Companion was contractually barred from recovering any alleged shortfall from Wood. In dismissing other claims against Highpoint and Wood for alleged breach of fiduciary duty and alleged violations of the South Carolina Unfair Trade Practices Act, the court found that “there is no evidence Highpoint (or Wood) owed or breached” a fiduciary duty to Companion in connection with the issuance of Companion’s workers’ compensation policies.   

“The court has dismissed the core of the case brought by Companion,” said Eric Haas, name partner at Dallas-based law firm Gardner Haas and counsel for Wood and the defendant companies. “An insurer cannot avoid the terms of its own policies and can’t complain when its agreements are given their clear and natural effect. We look forward to successfully pursuing Highpoint’s claims against Companion at trial in the Texas action.”

The case is Companion Property and Casualty Insurance Company v. Charles David Wood Jr. et al., Case No. 3:14-cv-03719, in the U.S. District Court for the District of South Carolina.

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Reuters is reporting that Japan’s Takata Corp is expected to plead guilty to criminal wrongdoing as Friday as part of a $1 billion settlement with the U.S. Justice Department over its handling of air bag ruptures linked to 16 deaths worldwide, sources said.

David Shepardson writes that the settlement includes a $25 million criminal fine and $125 million in victim compensation. He added that his sources told him the settlement also will include  $850 million to compensate automakers who have suffered losses from massive recalls.

“The company is poised to plead guilty to wire fraud, or providing false test data to U.S. regulators, according to the sources, who were not authorized to discuss the settlement publicly,” according to the report.

Read the Reuters article.

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BTI Consulting Group’s 2017 ranking of U.S. law firms that corporate lawyers never want to face in court includes Dallas’ Bailey Brauer PLLC based on the firm’s successful work in high-stakes litigation across the nation.

In a news release, the firm, founded in 2013 by former big firm lawyers Clayton Bailey and Alex Brauer, said it has successfully represented major corporations, family-owned businesses and high-net-worth individuals in a variety of business disputes by relying on years of expertise trying and appealing cases and negotiating favorable settlements.

“It’s a point of pride to be on this impressive list,” says Bailey, who is widely recognized for his work in state and federal trials and appeals. “General counsel call on Bailey Brauer because we provide the experience and quality they expect while keeping a close eye on the bottom line.”

Read more about the award.

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A New York Supreme Court judge on Tuesday agreed to dismiss a defamation suit brought by political strategist  Cheryl Jacobus against Donald Trump, reports The Hollywood Reporter.

The suit was based on a Trump tweet, in which he said that Jacobus had “begged” him for a job and went “hostile” when she was turned down. He also called her a “major loser” with “zero credibility.”

New York judge Barbara Jaffe granted Trump’s motion to dismiss.

She found that a reasonable reader would recognize Trump’s schoolyard type squabble as rendering statements of opinion, writes Eriq Gardner.

Read the Hollywood Reporter article.

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CloudNine will present a webinar covering  key terms, rules, duties and case law needed to meet the challenging discovery obligations that attorneys will face in 2017, the company reports.

The event will be Wednesday, Jan. 25, 2017, at 1 p.m. EST.

Presenters will be Doug Austin, Vice President of Operations and Professional Services for CloudNine; and Karen DeSouza, CloudNine’s Director of Review Services, In-House Counsel, and a Professional Services Consultant.

The webinar will cover:

+ Key Terms
+ Phases of the EDRM
+ Rules Regarding Electronically Stored Information (ESI)
+ Competency Ethical Duties of Attorneys Regarding eDiscovery
+ Top Ten Important Cases in the Evolution of eDiscovery Best Practices
+ Useful Resources for eDiscovery Continued Education

Register for the webinar.

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A federal judge whacked $10 million from the fee request of a class-action firm that negotiated a $335 million settlement of mortgage-backed securities claims against Bank of America, saying it was based on the work of short-term “associates” who appeared to function as contract attorneys, reports Forbes.

In his order, U.S. District Judge William Pauley awarded $41.3 million in fees and $1.4 million in expenses for their work on the case, or about 12% of the sum they negotiated for their clients.

The 26 Barrack associates, 16 of whom were labeled “temporary associates hired exclusively on the BOA case, “represented 40% of the billable hours and $10.8 million in fees at $362.50 an hour — well above the prevailing rate for contract attorneys of less than $50 an hour,” writes Forbes’ Daniel Fisher.

Read the Forbes article.

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John M. Newman of the Cecil C. Humphreys School of Law at the University of Memphis has compiled a guide to drafting for dispute resolution, covering mandatory-arbitration provisions, class waivers, choice of law, choice of venue, exculpatory and liquidated-damages clauses, fee and cost allocations, and more.

He writes that some defendant-friendly U.S. Supreme Court decisions, critical coverage in the popular press, and efforts by federal agencies to stymie the private sector’s increasingly widespread use of contractual dispute-resolution provisions have made the topic particularly timely.

“In light of the growing importance of dispute-resolution provisions, this guide seeks to concisely identify and explore, from a transactional perspective, the relevant questions, considerations, and law relating to these powerful tools,” Newman writes. “It also provides illustrative examples of well-drafted provisions, often drawn from real-world legal instruments. The target audience includes practitioners, scholars, businesspersons, and other analysts seeking to learn and apply best practices when planning and drafting for dispute resolution.”

Read the article.

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Eric Holder

Image by U.S. Dept. of Agriculture

Democratic leaders of the California Legislature announced Wednesday that they had hired Eric H. Holder Jr., who was attorney general under President Obama, to represent them in any legal fights against President-elect Donald J. Trump, reports The New York Times.

“The decision by the Legislature to retain Mr. Holder, who is now a prominent Washington lawyer, is the latest sign of the ideological battle that may play out over the next four years between this predominantly Democratic state and Washington,” writes Adam Nagourney. “Hillary Clinton, the Democratic candidate for president, defeated Mr. Trump by more than four million votes [in California].”

The report says Kevin de León, Democratic leader of the Senate, said he expected California to challenge Washington on issues including the environment, immigration and criminal justice.

Read the NYT article.

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Johnson & Johnson won a ruling cutting almost in half a $1.04 billion jury award to patients who accused the company of hiding defects in its Pinnacle artificial hips that had to be surgically removed, reports Insurance Journal.

The jury’s finding that officials of J&J and its DePuy unit failed to properly warn doctors and patients about the artificial hips’ flaws is intact. But U.S. District Judge Ed Kinkeade in Dallas found the panel’s punitive-damage awards to six patients were excessive and should be reduced, according to court filings.

“J&J still faces almost 9,000 lawsuits accusing the company of illegally marketing the flawed metal-on-metal hips. J&J stopped selling the devices in 2013 after the U.S. Food and Drug Administration toughened artificial-hip regulations,” according to reporter Jef Feeley.

Read the Insurance Journal article.

The Hill is reporting that President-elect Donald Trump will not settle a lawsuit against celebrity chef Geoffrey Zakarian, a lawyer for the Trump Organization told a judge Tuesday.

Trump’s breach of contract alleges the celebrity chef backed out of plans to open a new restaurant in Trump International Hotel in Washington, D.C.

Zakarian’s withdrawal from the deal followed Trump’s claims that Mexican immigrants included criminals and rapists, reports Max Greenwood

Lawyers for the Trump Organization and for Zakarian’s company told the judge that the two parties had reached an impasse.

Read The Hill article.

Gardere Wynne Sewell LLP successfully represented Matrix Petroleum Holdings LLC in a breach of contract suit against Talisman Energy USA Inc. A Texas appeals court decided against lifting an injunction that barred Talisman from proposing to drill mutually owned oil and gas wells on an Eagle Ford shale ranch.

In a release, the firm said the Fourth Court of Appeals ruled that Talisman’s actions threatened injury to real property. While Matrix is a minority stakeholder of the mineral leases, the companies had agreed to jointly develop interests.

The Gardere team was led by partners Alexander C. Chae and Mike Seely.

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