Pharmaceutical and medical device companies find themselves in the crosshairs for major matter “bet-the-farm” litigation, and recent research tends to suggest that such large-scale litigation is going to increase, reports litigation consulting firm DOAR in a new article published on its website.

DOAR is offering a presentation of its research and findings to corporate legal departments and the lawyers who represent them. The research is based on a national survey of attitudes toward the pharmaceutical industry that reports on consumer and juror sentiments and the ways in which their views and dispositions may impact litigation strategies.

“In order to best advise our clients as they respond to this shifting landscape, DOAR conducted empirical research designed to identify the key factors that contribute to jurors’ perceptions of product liability and defending companies, and how juror attitudes can be altered,” the company said. “What may be surprising is the vigor and specificity in feedback offered by individuals – as customers and as prospective jurors.”

Read the article.

A Dallas County jury has returned an actual damages verdict totaling more than $5.45 million in favor of local investment firms Gerritsen Beach Investments Ltd. and SSST Riviera Investments Ltd. after finding that Dallas-based Southwest Securities Inc. conspired to defraud investors and lenders out of millions of dollars between 2005 and 2010.

On Nov. 11, jurors in Judge Bonnie Lee Goldstein’s 44th Judicial District Court found that real estate developer Stephen Jemal conspired with Southwest to defraud the two Texas partnerships by misrepresenting the value of his Southwest holdings. The verdict also allows the plaintiffs to seek millions in attorneys’ fees, prejudgment interest, and costs, according to a release from the plaintiffs’ law firm.

“Mr. Jemal’s scheme relied on fake brokerage account statements that purported to show he owned tens of millions of dollars in blue chip stocks at Southwest,” says attorney Joel Reese of Dallas-based Reese Gordon Marketos LLP, who, along with partner Adam Sanderson, represented Gerritsen Beach and Riviera. “Lenders and investors, like our clients, relied on those fake statements, which were all tied to real accounts at Southwest.”

Trial evidence showed that Southwest provided easily altered brokerage statements that Jemal then used to deceive lenders and investors. Witnesses testified that Southwest assisted in the deception by lying about the value of the accounts, the firm reports.

“After five years of hard-fought litigation, our clients are pleased to finally receive justice,” says Reese. “Considering all the witness testimony and the incriminating documents, Southwest should have expected this result.”

Southwest recently was acquired by Dallas’ Hilltop Holdings Inc. and renamed as Hilltop Securities. The case is Gerritsen Beach Investments Ltd., et al. v. Southwest Securities Inc., et al., No. 10-10673.

As China’s big banks expand in the U.S., they are testing how far U.S. judges can go in demanding account records located in China, The Wall Street Journal reports.

“In a closely watched case, Kering SA’s Gucci and its other luxury brands allege that some of their most troublesome counterfeiters have accounts with Bank of China Ltd. and have issued subpoenas for information about their transactions,” report Nicole Hong and Lingling Wei.

The Bank of China has responded that turning over account records would violate Chinese law.

Read the article.

Above the Law examines a recent malpractice verdict against Andrews Kurth that carries a $200 million jolt for the Texas firm.

“The proposed order seeks an award of more than $196 million in actual damages, $20.7 million in prejudgment interest, and an additional sum, to be determined, in postjudgment interest.” David Lat reports in the blog.

The report offers a reminder to lawyers: “be careful about what you say in those internal emails. You might view them as protected by attorney-client privilege, but if your client ends up suing you, the emails could be discoverable.”

Read the article.

Contract terms and purchaser assent to those terms, conditions, intended use and warning information provided with a purchased product are known fertile ground for defending product claims, write Amy Alderfer and Sara Poster in Cozen O’Connor’s Products Liability Prevention & Defense blog.

The authors point out that consumers often turn to the internet to purchase products, particularly during the holiday season. The paper examines the enforceability of online contracts and corresponding reliance upon virtually provided product documentation.

By following the guidelines in the article, the authors write, “manufacturers and sellers can place themselves in a stronger position to successfully enforce the terms and conditions on their websites in court, and hold consumers accountable for having received, reviewed and accepted the warnings and product related information so diligently provided.”

Read the paper.

Lawyers with Dallas-based Gruber Hurst Elrod Johansen Hail Shank won a $33 million verdict in a gas transportation contract dispute and a $28 million verdict in a fraud/fiduciary breach claim in the oil patch in recent weeks.

A Minnesota federal court has entered a $32.9 million judgment on behalf of Great Lakes Gas Transmission Limited Partnership, a Houston-based interstate natural gas pipeline company, finding that an Indian conglomerate violated the company’s contract to provide natural gas transmission services. The judgment was entered on September 16 by U.S. District Judge Susan Richard Nelson, following a jury trial in Duluth.

“This case has been resolved after more than six years of attempts by the defendants to avoid the simple principle of honoring a written contract,” says attorney David W. Elrod of Gruber Hurst Elrod Johansen Hail Shank, who represented Great Lakes throughout the litigation. “Given the issues involved and the size of this judgment, the case offers important precedents for determining an appropriate discount rate in future litigation involving long-term contracts, as well as federal court jurisdiction.”

In the other case, a Texas jury has awarded more than $60 million to two groups of oil and gas investors who were defrauded of significant profits from oil and gas production leases covering thousands of acres in West Texas. The Aug. 19 verdict includes more than $28 million awarded to Lowry Hunt of Mansfield’s L.W. Hunt Resources and Richard Raughton of Fort Worth, and is believed to be the largest ever in Fisher County and the surrounding counties.

The 3½-week trial heard in Judge Glen Harrison’s 32nd District Court included evidence that attorney Kerwin Stephens of Stephens & Myers in Graham and Abilene oilman Chester Carroll of Alpine Petroleum concocted a fraudulent scheme to cut existing partners out of an oil and gas partnership and take the profits for themselves.

Most contracts in the construction industry supply chain require the “downstream” project participant to indemnify those “upstream” against a spectrum of losses or claims relating to the project, write Shawn M. Doorhy and Patrick J. O’Connor, Jr. on the website of Faegre Baker Daniels LLP.

“Upstream participants, such as owners and general contractors, naturally seek the broadest indemnity available under the circumstances. It is not uncommon for owners and general contractors to draft broad indemnity agreements seeking protection from loss due to the indemnitee’s own direct fault,” they write. “Whether this can be successfully accomplished depends on a number of factors, including the specific language used and the law of the applicable jurisdiction.”

They add that — because indemnity agreements often are strictly construed against the party seeking indemnification — careful drafting is especially important.

Read the article.

Zapproved is offering a complimentary recap called “State of Preservation Today” from The Proceedings from the 2015 Conference on Preservation Excellence. Michael Arkfeld moderated the discussion, which included panelists Hon. Xavier Rodriguez, Ariana Tadler and Robert Owen.

Three trends shaping the e-discovery world today, the panel discussed, are big data, the cloud, and mobile.

These trends mean organizations are at greater risk than ever from an e-discovery crisis created by a preservation lapse. Teams need to be in rapid-response, even first responder mode to effectively serve the enterprise. By describing the state of the industry, panelists and audience members set the tone for the rest of the conference, approved said.

Download the recap.

A recent decision by the Patent Trial and Appeal Board (PTAB) has reduced a “covenant not to challenge” clause to mere words on paper, and fails to deter licensees from seeking a review of the licensed patent under the America Invents Act (AIA), write   Lillian Safran Shaked & Asaf Naymark in IPWatchdog.

“Covenant Not to Challenge” clauses are common in patent licenses, they write. “The clause provides that a licensee may not challenge the license in court or an administrative proceeding, and can also provide that the licensee cannot assist others in doing so.”

After discussing the case at length, the authors conclude that there is significant risk of damage to a patent licensor from a post-license IPR challenge, whether or not a “covenant no to challenge” is enforceable. “Given the costs involved and the possibility that unrelated license agreements may also be invalidated or terminated as a result of an IPR, there is need for clarification,” they write.

Read the article.

Exterro and General Counsel News are offering for complimentary download a new e-discovery case law white paper to review three must-know e-discovery cases from 2015.

The paper covers:

• How courts are applying traditional principles (e.g. reasonableness, cooperation) in an e-discovery landscape transformed by new types of technology (e.g. mobile, social media).
• Tips for preventing e-discovery mistakes made in each one of these 3 cases.
• Key takeaways that will ensure your e-discovery process is defensible and adjusts to evolving case law standards.

Download the paper.

The national trial and business law firm Rose•Walker LLP announced the addition of attorney Todd M. Starr as managing partner in the firm’s Pagosa Springs office.

The firm will conduct business in Colorado as Rose•Walker•Starr.

Starr is a trial lawyer who has tried cases in many states, including Colorado, Iowa, Nebraska, Missouri, Kansas and Arizona. For the past 15 years, he has held a variety of positions in county governments, including most recently the post of Archuleta County Attorney. In his role, Starr represented the county in numerous criminal and civil claims.

Starr resigned as county attorney on Sept. 21, but said he plans to continue representing the county on a contract basis.

“My background and skills position me rather uniquely to work with businesses and local governments during a time a great change in our area,” says Starr. “I’m looking forward to it.”

“Todd has done an incredible job for Archuleta County,” says Michael Whiting, Chairman of the Board of County Commissioners. “This is a great opportunity for him professionally and for the community because it will reduce the overall cost of legal services to taxpayers.”

Starr previously served as Dolores County Attorney on a contract basis while in private practice. While leading the Cortez, Colorado-based Starr Law Firm, he represented a wide range of clients in commercial litigation, and was elected to two terms on the Executive Committee of the Colorado Bar Association. He earned his undergraduate degree in business from Graceland University and his law degree from the Creighton University School of Law. He also earned an LL.M degree in banking law from Boston University and worked in the banking industry for several years.

“We are very pleased that Todd has agreed to join our firm and offer his diverse litigation experience and knowledge of the governmental process to our clients,” says Rose•Walker founder Martin E. Rose.

A Houston federal jury has returned a verdict in favor of National Oilwell Varco, L.P., (NYSE: NOV), finding no wrongdoing in an employment discrimination lawsuit filed by eight African Americans who sought $120 million in damages.

Houston-based NOV, an oilfield equipment supplier, argued that these employees were not treated differently because of their race. The jury heard 12 days of testimony in the trial before Judge Lee H. Rosenthal in the U.S. District Court for the Southern District of Texas.

The plaintiffs were represented by high-profile civil rights lawyer Angela M. Alioto of San Francisco’s Law Offices of Mayor Joseph L. Alioto and Angela Alioto in their claims of racial discrimination, hostile work environment and retaliation.

Read more about the case.

Clients need to understand that they must communicate fully with their lawyers if they want to receive the best possible legal advice, writes Francis Drelling in a new article. He says lawyers need to better understand what a client might “hold back” so that they can take steps, early on, to solve the problem.

He starts with the problem of clients withholding important information, possibly in an attempt to “sell” their case to the lawyer.

“Lawyers need to understand that they should make their point, their recommendations, and then listen to their clients,” he writes in the second point.

Other points include when to stop talking, hiding motives from the lawyer, and following the client’s directions.

Read the article.

David J. Beck of Houston is being honored by the Texas Association of Civil Trial and Appellate Specialists (TACTAS) with the Lifetime of Excellence in Advocacy Award.

The award recognizes a local attorney who has, throughout their legal career, been an example of excellence in trial and appellate work. The Board of TACTAS nominates attorneys who they feel have consistently been examples of skill, zeal and professionalism, and the nominees are then voted on by the membership.

Beck’s firm, Beck Redden LLP, said in a release that he is consistently recognized as one of the country’s best trial lawyers and has been named in Best Lawyers in America 1985‐2016. “This recognition has grown from the consistent results he has achieved for his clients in his 50 years of practice. From the smallest disputes to the billion dollar cases, David understands the importance of each case to his client, and he approaches each with the same intensity and integrity that has served him – and his clients – so well for so long,” the release said.

Beck will receive the award during a ceremony held at the Four Seasons Hotel on Nov. 18, 2015.

TACTAS was established in 1986 to promote the availability, accessibility and quality of the services of civil trial and appellate lawyers to the public. TACTAS provides service to the public interest and advances the standards of the legal profession in the area of civil trial and appellate practices. TACTAS members include only attorneys and judges who have obtained board certification in Civil Appellate Law, Civil Trial Law, or Personal Injury Trial Law. Through its years of professional service, TACTAS has promoted high standards in professionalism, established principles and networking resources, and has provided integrity and strength for its members (www.tactas.org).

Beck Redden is a litigation firm that handles a wide range of disputes including commercial, oil and gas, product liability, antitrust, securities, environmental, insurance coverage, legal and accounting malpractice, white collar crimes, patent and other intellectual property cases.

The latest of a line of recent cases in which the U.S. Supreme Court has weighed the enforceability of class action waivers in arbitration agreements was before the court on Oct. 6, 2015, when the court heard oral argument in DirecTV, Inc. v. Imburgia, et al., No. 14-462, reports James A. McKenna of Jackson Lewis.

“These decisions almost uniformly have favored arbitration, and many employers have adopted and successfully utilized arbitration agreements containing class action waivers,” he explains.

DirecTV’s customers signed agreements requiring claims relating to the agreement or to the company’s service to be decided by binding arbitration on an individual basis. “Arbitration on a class basis was specifically prohibited. At the time Amy Imburgia signed the agreement, the controlling California law was the “Discover Bank rule” announced by the California Supreme Court in 2005. Under the Discover Bank rule, almost all consumer arbitration agreements containing class action waivers were deemed unconconscionable and, therefore, unenforceable,” according to the article.

Read the article.

An article in Kane Russell Coleman & Logan’s new Energy Law Today blog reports on a case before the 5th U.S. Circuit Court of Appeals that raises the question: “When will an anti-indemnity statute bar an often well-crafted legal indemnity term in a master-service agreement?”.

The case is Tetra Techs., Inc. v. Continental Ins. Co., No. 15-30446.

“In Tetra, the commercial fight was between Tetra, which sought to enforce an indemnity clause against its subcontractor, Vertex Services.  Continental, Vertex’s insurer, tried to block any indemnity payment, relying, in large part, on the LOAIA,” writes Andrea (A.J.) Johnson.

“The district court held that the decommissioning of a platform in a salvage operation did not come under the LOAIA, and, thus, Tetra’s claim for indemnity was enforceable. In opposition, appellant Continental contends that the trial court too restrictively interpreted the [Louisiana Oilfield Anti-Indemnity Act].”

Read the article.

The Consumer Financial Protection Bureau (CFPB) announced that it is exploring a rulemaking to eliminate the use of certain arbitration agreements in consumer contracts that block consumers from participating in class-action lawsuits, report Bill Mayberry and Jodie Herrmann Lawson of McGuireWoods. They write that, if the new rule is enacted, it will impact companies that fall within the CFPB’s broad interpretation of businesses that provide financial products and services for consumer purposes.

“The announcement comes on the heels of the CFPB’s publication of a three-year study on arbitration that concluded that consumers generally are better served through litigation. According to CFPB Director Richard Cordray, arbitration clauses amount to ‘a free pass to sidestep the court and avoid accountability for wrongdoing,” they write.

The article is on the firm’s Subject to Inquiry blog.

Read the article.

A 7th U.S. Circuit Court of Appeals ruling in Northbound Group, Inc. v. Norvax, Inc. indicates that courts will not add parties to a contract after the contract has been negotiated, writes Stephen M. Proctor, a principal in Masuda Funai Eifert & Mitchell Ltd.

The article, published on Lexology.com, describes the case: “Norvax agreed to acquire the assets of Northbound and, for this purpose, formed an acquisition vehicle called Leadbot LLC. The result was an asset purchase agreement executed in February 2009 by and between Northbound and Leadbot LLC. Norvax was not a party to the asset purchase agreement. Northbound was to be paid through an “earn-out” calculated as a percentage of the monthly net revenue of Leadbot LLC.”

Northbound later sued Norvax and Leadbot, claiming a breach of contract.

“Once a contract is negotiated, a party will likely be unsuccessful in persuading a court to rewrite the contract or to add provisions that may not have been considered, are erroneous or, in hindsight, seem unfair,” Proctor writes.

Read the article.

A West Texas jury has awarded more than $43 million to a group of oil and gas investors after finding that their business partners had breached fiduciary duties by crediting themselves for financial contributions they never made and by excluding the investors from a lease acquisition project after it became apparent that the project would be tremendously successful.

Dallas attorneys Frank L. Branson, Eric T. Stahl and Debbie Branson of The Law Offices of Frank L. Branson represented one of the investor groups, consisting of Dallas-based Tiburon Land and Cattle LP and Trek Resources Inc. on behalf of the Three Finger/Black Shale Prospect Partnership. The Fisher County trial was heard in 32nd District Court in Roby.

“In Fisher County a deal is a deal,” said Branson in a report on the firm’s website. “It was very clear to the jurors that the defendants did not honor their word and took opportunities that did not belong to them, and that’s a very serious matter in West Texas.”

Read the article.

A federal district court in New York recently held that a creditor could not be held liable for aggressively protecting its own interests when the plain language of the relevant documents permitted the actions taken by the creditor, according to a legal update from Dechert‘s Business Restructuring and Reorganization Group.

Lehman Brothers Holdings Inc. v. JPMorgan Chase Bank, N.A., No. 11-cv-7670 (RJS) (S.D.N.Y. Sept. 30, 2015) arose out of an adversary proceeding initiated by Lehman Brothers Holdings Inc. and its affiliated against JPM, the update reports.

“The Debtors advanced multiple causes of action and theories against JPM, alleging that JPM improperly and unfairly appropriated value from the Debtors (thus harming their creditors) in the months leading up to LBHI’s bankruptcy filing by allegedly strong-arming the Debtors into providing it with additional collateral and protections,” it continues. “The Court, however, entered summary judgment against LBHI on nearly all counts because it found that the written contracts between JPM and LBHI expressly permitted JPM’s purportedly inequitable actions.”

Read the article.