U.S. Supreme Court Justice Anthony M. Kennedy announced his plans to retire this summer after serving 30 years on the nation’s highest court. Widely known for his swing vote on a range of issues, Justice Kennedy will leave at the end of July.

Attorneys like Larry Vincent of Dallas-based Burns Charest, who once clerked for Justice Kennedy, provide their reactions in a post on the website of Androvett Legal Media & Marketing.

“It’s disappointing that he chose to retire at this time. I’ve always been proud of his opinions regarding individual liberty grounded in the Fifth and 14th amendments. Given what we know about the list of potential replacements already circulated by this administration, I think his legacy in those areas will be eradicated. I hope he doesn’t look back in a few years and regret his decision to leave the court at this juncture.

“I’ve spent much of my legal career, including my time here at Burns Charest, working to help people and companies recover for losses caused by negligence or the breach of a legal duty. Given the ideological shift at the court to restrict the ability of parties to use the courts to recover the amount they are due for the harm done to them, the loss of a compassionate conservative like Justice Kennedy is particularly frustrating.”

Philip Hilder, founder of Houston’s Hilder & Associates, P.C.: “Retirement of the swing justice will energize voters from all political stripes to come out this mid-term. Voters now realize the significance that a Supreme Court Justice has over their daily lives. Any nominee will need Senate confirmation and those elections this fall will be red hot battlegrounds unlike any in recent memory.”

Lara Hollingsworth, appellate lawyer and Of Counsel at Houston’s Rusty Hardin & Associates, LLP: “The court will never be the same. The era of moderate appointments has passed never to be seen again. The Merrick Garlands of the world don’t stand a chance. It’s a sad day for justice and our country.”

Chip Babcock of Jackson Walker: “Justice Kennedy will be recorded by history as one of the great justices of the United States Supreme Court. It was regular practice in close cases for entire briefs and oral arguments to be tailored just for him. He was that important. That cannot be said of many, if any, other members of the court in its history.”

A Pennsylvania appeals court rejected a request by a natural gas production company to rehear a case whose outcome could affect drillers across the country, reports WSKG.

Briggs v. Southwestern Energy Production Company involves the legal principle known as “rule of capture,” which means a property owner has the right to extract or “capture” an underground resource such as water, oil or gas, even if it flows from beneath another property owner’s land, explains reporter Susan Phillips. The case calls into question the longstanding practice as it applies to fracking, which requires subsurface rock to be deliberately broken in order to release trapped gas.

“In 2015, the Briggs family sued Southwestern Energy for trespass and conversion, arguing that the company’s fracking efforts were illegal and it should not be allowed to use wells on neighboring properties to tap gas beneath their land,” writes Phillips. “The family owns about 11 acres of land in Susquehanna County and did not lease its land for gas drilling.”

The trial court rejected their arguments, but an appellate court found that the Briggs’ arguments had legal merit.

Read the article.

Arbitration is a creature of contract, and an arbitrator’s powers are in effect defined by the parties’ arbitration agreement, points out a post on the Mintz, Levin, Cohn, Ferris, Glovsky and Popeo blog ADR: Advice From the Trenches.

“Paradoxically, although an arbitration agreement can be written (double-spaced) on one side of a cocktail napkin, in some cases it may grant greater authority to an arbitrator than a judge has,” writes Narges Kakalia.

In the post, she discusses Timegate Studios, Inc. v. Southpeak Interactive, LLC, in which the Fifth Circuit confirmed an arbitration award in which the arbitrator substantially reformed the parties’ commercial agreement by, among other things, awarding one a broad perpetual license to certain of the other’s intellectual property, despite the fact that the original agreement had granted only a more narrowly drawn ten-year license.

Read the article.

Three women have filed a federal class action lawsuit claiming that the Travis County District Attorney’s office and the Austin Police Department have violated the constitutional rights of women and discriminated based on gender in the manner in which they handle sexual assault cases.

The lawsuit notes that while more than 1,000 women report a sexual assault to Austin police each year, the number of cases actually taken to trial annually are in the single digits, according to a post on the website of Androvett Legal Media & Marketing.

The lawsuit alleges that Travis County DA Margaret Moore has ratified the discriminatory policies publicly, making statements that acquaintance rapes are really more “traumatic occurrences” than criminal acts.  Moore has also indicated that the testing of the backlog of thousands of rape kits in Austin is for “informational purposes” and not for prosecution, confirming her office’s intent not to seek justice for those victims.

The lawsuit also notes that the Austin Police Department’s sexual assault unit at one time had a wall with photos of victims whose claims had been “debunked” by officers as “trophies of their investigations which determined allegations by purported victims were unsubstantiated.”

Finally, the lawsuit notes that while women make up 91 percent of sexual assault victims, the only case taken to trial in 2017 involved a male victim.  In that instance, the Travis County Sheriff’s Office and the DA were aware of allegations by multiple women in previous years against the same perpetrator, but those cases were never prosecuted.

“[The] unconstitutional conduct by Defendants subjects both victims and all the women of Austin to continued risk at the hands of perpetrators who are never held accountable,” according to the complaint, filed in the U.S. District Court for the Western District of Texas. The lawsuit, which seeks class-action status, claims that the dominant culture and ongoing and historical failures by local law enforcement to pursue sexual assault cases establishes a conspiracy to violate the civil rights of an estimated 6,000 sexual assault victims, while also violating their constitutional rights for equal protection.

“It is shocking that the vast majority of women who survive sexual assault are provided so little protection or recourse, and are essentially blamed for the refusal of law enforcement to seek justice in their cases,” says Jennifer Ecklund of Thompson & Knight and lead counsel for the plaintiffs. “Women go to authorities in order to seek justice and to protect other women, but the policies and practices of law enforcement instead re-traumatize survivors while allowing their attackers to walk free.”

The case is Amy Smith, Julie Ann Nitsch and Marina Conner v. City of Austin, Travis County District Attorney Margaret Moore, Rosemary Lehmberg and Travis County, Texas.

The Dallas Morning News is reporting that Dallas-based Texas Coastal Energy Company defrauded 80 oil and gas investors out of more than $8 million, according to a lawsuit filed Tuesday by the Securities and Exchange Commission, the stock market regulator.

The SEC alleges the company, its co-founder, Jefferey Gordon, and his sales representatives misrepresented the company’s finances, exaggerated a geologist’s background and inflated the reserves and expected production of its wells in Texas and Kansas, according to reporter Jeff Mosier.

“In an offering fraud, people who seek to steal investors’ hard-earned money will often use cold calls and inflated promises to carry out their schemes,” said Shamoil T. Shipchandler, director of the SEC’s Fort Worth regional office. “Their self-serving statements are no substitute for an investor’s due diligence.”

Read the Dallas News article.

Winston Maxwell and Gauthier Vannieuwenhuyse of Hogan Lovells point out that we are living in the era of constant technological progress, and then ask the question: As smart contracts emerge, why not think about totally automated arbitration?

“Big data and e-discovery can assist counsel in document management and reduce the risk of human error during discovery,” they write for an article for Bloomberg Law.

They discuss machine learning, predictive justice, and sophisticated programs that can even analyze the behavior of specific judges and arbitrators to predict their propensity to grant or deny certain motions and claims.

“This may open arbitration to new markets, such as low value disputes, whose players were traditionally reluctant to resort to this type of resolution,” they write.

“While it is possible to envision completely robotized arbitration taking place in a not-so-distant future, that sort of arbitration would not be recognized by state institutions. If the arbitration occurs in a self-contained, self-executing framework, then its nonrecognition by state institutions may not be a major obstacle,” the authors conclude.

Read the article.

A divided panel of the Texas Court of Appeals in Houston has held that the 2014-2015 drop in oil prices is not a force majeure for purposes of general force majeure contractual protection, reports Liskow & Lewis in its Energy Law Blog.

Jackie E. Hickman explains that the court addressed a dispute between ConocoPhillips Company and TEC Olmos over a farmout agreement that required Olmos to commence drilling by a specified date.

“During the interval between execution of the agreement and commencement of drilling, however, changes in the global supply and demand of oil caused the price of oil to drop significantly. As a result, Olmos was unable to secure financing for drilling and informed ConocoPhillips that it would be unable to meet its drilling obligations. ConocoPhillips filed suit against Olmos and the guarantor of the contract, Terrace Energy Company, for breach of the farmout agreement. The lawsuit sought $500,000 in liquidated damages,” Hickman writes.

Olmos invoked the force majeure clause of the farmout agreement to excuse its inability to perform, but the court agreed with ConocoPhillips.

Read the article.

Image by Mike Mozart

Target Corp.’s $17 million class settlement to resolve consumer claims over a 2013 data breach passed Eighth Circuit scrutiny on its second trip to the appeals court, reports Bloomberg Law.

The court rejected an objector’s challenge that the named plaintiffs weren’t adequate representatives for the whole class because they received compensation while others didn’t, according to reporter Perry Cooper.

He explained:

“All class members had the ability to register for credit monitoring, and all of the compromised payment cards undoubtedly were canceled and replaced by the issuing banks,” Judge Bobby E. Shepherd wrote for the U.S. Court of Appeals for the Eighth Circuit.

“Any risk of future harm is therefore entirely speculative,” the court said.

Read the Bloomberg Law article.

Dallas attorney Walter Thomas Finley was indicted after police said he stole $365,000 from a client, according to Dallas-Fort Worth NBC affiliate KXAS.

“The indictment came weeks after the FBI seized money from the lawyer in a separate case, according to forfeiture.gov, a government website that posts seizure notices,” writes reporter Scott Gordon.

Finley, 70, is charged with felony theft in a case involving the trust fund of an East Texas woman. The woman’s family gave Finley $416,000 in late 2012 to set up the fund and make quarterly payments to her, but he stopped after a year, according to a Highland Park police report and court records.

Read the KXAS article.

A lawsuit accusing the U.S. Department of Veterans Affairs of failing to pay overtime to nurse practitioners and physician assistants since December of 2006 has been certified as a class action, according to a web post by Androvett Legal Media & Marketing. The certification is listed as an opt-in class, opening the door for more plaintiffs.

Class representatives Stephanie Mercier, Audricia Brooks, Deborah Plageman, Jennifer Allred and Michele Gavin brought the lawsuit on behalf of nurse practitioners and physician assistants from VA facilities across the country. Attorneys estimate as many as 10,000 VA employees nationwide ultimately could be represented in the class action.

According to the lawsuit, nurse practitioners and physician assistants were required to process electronic and computer patient records after work hours using VA facility computers, laptops and sometimes their own personal home computers without compensation. The work is vital to the treatment of patients and is considered mandatory by VA supervisors.

Provost Umphrey attorneys Michael Hamilton of the firm’s Nashville office and Guy Fisher in the Beaumont, Texas, office are among the attorneys working on the lawsuit along with counsel David Cook and Clement Tsao of Cincinnati’s Cook & Logothetis, LLC, Douglas Richards of Lexington, Kentucky and Robert Stropp of Mooney Green, P.C. in Washington, D.C.

“These are medical professionals who are taking care of our veterans,” said Hamilton. “If we aren’t paying them properly, what sort of statement does that make about the importance of caring for those who watched over us and our rights?”

“Ultimately, it’s about patient care,” said Cook. “We need to do our utmost for those who have put on the uniform and defended our rights. And, we can start by properly paying the medical professionals who care for them when they need it.”

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President Donald Trump’s long-time lawyer Michael Cohen has been telling pals he expects to be arrested soon, according to new reports Tuesday.

CNBC reports that a Vanity Fair article also quoted an ex-White House official saying that “Trump should be super worried about Michael Cohen” deciding to cooperate with federal prosecutors against the president.

“If anyone can blow up Trump, it’s him,” the source told Vanity Fair about Cohen, who is under criminal investigation by federal prosecutors in New York City.

Federal Judge Kimba Wood had given attorneys for Cohen and Trump until Monday to raise any objections they had to a special master’s findings on whether seized documents were privileged. She later rejected their request to be allowed to file their objections under seal.

Read the CNBC article.

Reuters is reporting that a couple whose nine relatives were among the 26 people fatally shot in a Texas church massacre in November has sued the U.S. government for $50 million, saying its “institutional failures” played a part in the murders.

The lawsuit in federal court claims the U.S. Air Force acted negligently when it failed to report the criminal record of gunman Devin Kelley to a U.S. database, which could have prevented him from legally purchasing an assault rifle used in the killings, reports Jim Forsyth.

He writes that legal experts have said the Air Force would not be able to claim federal immunity in the case, but cautioned any lawsuits faced a prolonged battle.

Read the Reuters article.

A federal judge has certified a class action lawsuit involving nurse practitioners and physician assistants accusing the U.S. Department of Veterans Affairs of failing to pay overtime since 2006, according to a post on the site of Androvett Legal Media and Marketing.

Judge Elaine D. Kaplan of the U.S. Court of Federal Claims granted certification in an action brought by class representatives Stephanie Mercier, Audricia Brooks, Deborah Plageman, Jennifer Allred and Michele Gavin on behalf of nurse practitioners and physicians assistants at 85 different facilities across the country.

Provost Umphrey attorneys Michael Hamilton of the firm’s Nashville office and Guy Fisher in the Beaumont, Texas, office are among the attorneys working on the lawsuit along with counsel David Cook and Clement Tsao of Cincinnati’s Cook & Logothetis, LLC, Douglas Richards of Lexington, Kentucky and Robert Stropp of Washington DC’s Mooney Green, P.C.

“These health care professionals dedicate their time for the well-being of our veterans, and by law, are entitled to overtime when they are required to work beyond their work schedules,” said Hamilton. “We believe this lawsuit to be critical for veteran patient safety and health. To expect these employees to work extended hours without overtime pay is wrong. With the class certification, we can now proceed onto the next step in this lawsuit.”

The lawsuit seeks compensation for employees who worked overtime processing electronic and computer patient records using VA facility computers, VA laptops and sometimes personal computers, work that is critical to the medical treatment of patients. Nurse practitioners and physician assistants say the work is considered mandatory. Those who failed to complete the assignments were subject to disciplinary measures for poor time management.

“I’m grateful that the judge agreed with us and certified the lawsuit as a class action,” said Cook. “It is wrong for any employer to expect people to work for free.”

Hamilton and Cook estimate that as many 10,000 VA employees could be represented in the class action lawsuit, according to the Androvett post.

The case is Stephanie Mercier, Audricia Brooks, Deborah Plageman, Jennifer Allred, Michele Gavin v. The United States of America, No. 1:12-cv-00920 in the U.S. Court of Federal Claims.

The Fifth Circuit has affirmed an order compelling arbitration, despite the fact that the parties seeking to compel arbitration were not signatories to the relevant arbitration agreement, according to a post on Carlton Fields’ Reinsurance Post.

Jason Brost explained that the case involved a real estate sale contract that contained an arbitration agreement under which the parties agreed to arbitrate any disputes “in accordance with the Comprehensive Arbitration Rules and Procedures administered by J●A●M●S/Endispute.”

The plaintiff claimed that the defendants in the case induced the buyer to enter into the 1998 agreement based on the false premise that he would get a properly constructed home. The defendants, who were non-signatories to the agreement, moved that the arbitration clause be enforced.

The appellate court found for the defendants.

Read the article.

Above the Law reports that a judge has characterized a $60,000 fee request from Latham & Watkins to be “astonishing” and “aggressive beyond any convention.”

The firm, representing the defendant in two cases brought by a Harvard professor who sued an employee of his investment fund for allegedly recording conversations, won the case on the merits. So now Latham is attempting to recover legal fees, reports editor Kathryn Rubino.

Massachusetts Superior Court Judge Mitchell H. Kaplan criticized Latham for charging such a high fee “to file a brief that a first-year law student could write.”

Read the Above the Law article.

The Washington Times is reporting that the Supreme Court over the next month is poised to upend the way the country picks representatives to Congress, decide whether the First Amendment protects people who refuse to do business with same-sex couples and rule on whether President Trump’s tweets can be used in court to derail his agenda.

Reporter Alex Swoyer sees the case for some blockbuster rulings that will signal to lower courts how they should treat the unorthodox Trump.

“The biggest test comes on the president’s travel ban. His opponents have begged the justices to hold Mr. Trump’s campaign-era tweets against him, saying his comments about Muslims taint the travel policy he announced once he took office,” writes Swoyer.

Read the Washington Times article.

A group of 28 subcontractors at a Valero refinery in Texas City are suing the company and their employer, alleging that they suffered injuries and post-traumatic stress from an explosion at the plant less than two months ago, reports the San Antonio Business Journal.

The employees of  Beaumont-based Richard Industrial Group Inc. filed the lawsuit against their employer and Valero Refining Texas LP, a subsidiary of San Antonio-based refining company Valero Energy Corp.. Richard Industrial Group provides subcontracting work at Valero’s Texas City refinery, according to reporter Sergio Chapa.

“The workers are seeking damages based on claims that they suffered orthopedic injuries and hearing loss from the accident and are dealing with post-traumatic stress disorder,” writes Chapa.

Read the Business Journal article.

Lawyers with Texas-based firm Deans & Lyons have filed a wrongful death lawsuit in Denton County against The Float Spot, alleging the company’s negligence led to the drowning death of a 71-year-old woman in one of its aquatic sensory deprivation tanks.

In a release, the firm said Gloria Fanning died April 7, having spent eight days on life support following her first visit to the spa, located in Flower Mound, Texas. Advertised as the “world’s first tranquility studio,” The Float Spot encloses customers in sensory deprivation tanks filled with highly salinated water that increases a person’s buoyancy. The company touts myriad health benefits, while downplaying any potential risks from the enclosed floatation tanks, the firm said.

The release continues:

As a first-time customer, Ms. Fanning was given a brief orientation then left alone in the tank. According to the lawsuit, she later was discovered in a state of “distress” by an employee who initially called the business owner for guidance rather than calling 911 for assistance. Once paramedics finally arrived, they found Ms. Fanning unresponsive. She never regained consciousness.

“Gloria was promised an experience that was beneficial and completely safe. The company’s own website claims that accidental drowning is not possible, which is patently untrue and contradicts reports of others across the country who have died in a similar fashion,” said the Fanning family’s attorney, Michael Lyons, co-founder of Deans & Lyons.

“This is a rapidly expanding industry that lacks any of the regulation necessary to ensure that customers are kept safe inside these aquatic sensory deprivation tanks. It is too late for Gloria, but this has to change.”

The lawsuit, filed May 31, is Greta S. Anthony and David Porter v. Fc Acqua, LLC, dba The Float Spot and Raymond J. Thoma, Cause No. 18-4802-367 in Denton County District Court.

A Texas appellate court has affirmed an $11 million verdict against the Choctaw Nation of Oklahoma, upholding a May 2016 jury verdict that the Choctaw Casino bore responsibility for a deadly 2013 crash of a charter bus carrying elderly North Texas residents to the Choctaw Casino in Durant, Okla.

A release from the lead trial counsel describes the ruling:

On Tuesday (May 29), a three-judge panel from the Court of Appeals for the Fifth District of Texas at Dallas rejected 14 separate arguments by Choctaw’s legal team seeking to reverse the jury’s findings. The appellate ruling found that Choctaw was vicariously liable for the negligence of the charter bus company, the bus driver and for a tour guide who had arranged the April 2013 casino trip. According to testimony, the crash occurred when the bus driver lost control of the bus on the northbound lanes of State Highway 161 in Irving as he was arguing with the tour organizer.

Trial lawyers from The Law Offices of Frank L. Branson were lead trial counsel in this case and represented the estate and family members of 82-year-old Alice Stanley, the lead plaintiff. Attorneys Frank L. Branson and Chip Brooker of The Law Offices of Frank L. Branson successfully argued that the Choctaw Nation of Oklahoma had a contractual relationship with the tour organizer and the charter bus operator and the tour, Cardinal Coach Lines. The jury awarded $4.9 million to Ms. Stanley’s estate and $6 million to the estate of 69-year-old Paula Hahn, who was represented by separate legal counsel.

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A jury in California delivered a $25.75 million verdict against the maker of Johnson’s Baby Powder for the deadly asbestos-caused cancer a woman developed after years of using the product, according to a post on the website of Androvett Legal Media & Marketing.

The post continues:

The verdict by jurors in Los Angeles Superior Court before Judge Gloria White-Brown includes $21.75 million in compensatory damages and $4 million in punitive damages. Jurors found that Johnson & Johnson was negligent and failed to warn consumers, and that its iconic Johnson’s Baby Powder contained manufacturing and design defects because of the presence of asbestos.

Joanne Anderson, 66, of Williams, Oregon, filed suit following her diagnosis with pleural mesothelioma. A cancer in the lining of the lungs, pleural mesothelioma is caused by asbestos exposure. She used Johnson’s Baby Powder on her children when they were younger and, as an avid bowler, regularly used the product on her hands and shoes for years. All told, experts estimate she used the product more than 10,000 times.

“It was our great honor to represent Joanne and Gary Anderson in this battle against Johnson & Johnson,” said trial attorney David Greenstone of Simon Greenstone Panatier, who was one of the attorneys who tried the case. “We are extremely pleased that our clients have found a measure of justice, although nothing can truly compensate them for what they have lost. Our clients are hopeful that this verdict can further bring light to this unbelievable example of corporate misconduct. Johnson’s Baby Powder has contained asbestos for decades. People need to know about this.”

The jury found Johnson & Johnson liable for two-thirds of the verdict amount. The remaining percentage of fault was spread among other exposures that Joanne had as a bystander to automotive work her husband occasionally performed. Medical testimony in the case indicated that all of her exposures to asbestos contributed to cause her mesothelioma.

“In 1969, a Johnson & Johnson’s company doctor told them that if they didn’t get control of the mineral contaminants in their baby powder that they would end up in litigation years later,” said trial attorney Chris Panatier, who also represented the family at trial. “Instead of pulling the powder from the market or going with a safer alternative such as corn starch, they engaged in a multi-decade campaign wherein they hid testing data from the FDA, altered reports to make them more favorable and lied to consumers. This jury saw Johnson & Johnson documents that were never given to the public or the FDA.”

Also assisting in the case was Simon Greenstone Panatier attorney Conor Nideffer.

The verdict is the third cosmetic talc case tied to asbestos that Simon Greenstone Panatier has won on behalf of its clients. In 2015, a California jury awarded mesothelioma sufferer Judith Winkel $13 million in her case against Colgate-Palmolive, based on her exposure to asbestos in its Cashmere Bouquet powder. The following year, a jury awarded $18 million to Philip Depoian in a mesothelioma case against talc supplier Whittaker Clark & Daniels.

Anderson’s case is Joanne Anderson and Gary Anderson v. Borg-Warner Corporation et al., No. BC 666513 in Los Angeles Superior Court.