Experience

Securities Fraud Litigation

• Obtained dismissal of securities fraud claims against medical device manufacturer relating to FDA non-approval of device for particular uses; dismissal affirmed on appeal.
• Obtained dismissal of securities fraud claims against national electrical subcontractor relating to financial restatement; dismissal affirmed on appeal.
• Obtained dismissal of securities fraud claims against software company alleging false accounting statements (revenue recognition).
• Defended former CEO of energy services company in multiple securities fraud class actions relating to company’s restatements of tax accounting disclosures; case settled after fact discovery at no cost to client.
• Obtained dismissal of securities fraud class action against telecommunication company and its senior officers premised on underlying RICO claims; case settled after appeal.
• Defended former CEO of renewable energy company in securities fraud class action alleging false statements concerning renewable product and plant construction; case settled at no cost to client.
• Defended home healthcare provider and its current and former officers in securities fraud class action relating to Medicare reimbursement and other issues; representation began after motion to dismiss was denied; case settled favorably for client.
• Defended former President of technology company in securities fraud litigation relating to backdated stock options; case was settled at no cost to client who was vindicated in separate arbitration.
• Defending former CEO of international mining company in securities fraud litigation alleging accounting improprieties relating to impairment of multi-billion-dollar asset.

M&A Litigation

• Defended leading refining, marketing, and midstream company against M&A litigation filed in Texas and Delaware challenging $23 billion merger with another refiner; cases resolved by payment of confidential mootness fee after supplemental disclosures.
• Obtained voluntary dismissal of M&A litigation in Delaware challenging $15 billion merger of midstream companies; request for mootness fee withdrawn.
• Obtained voluntary dismissal of M&A litigation filed in Texas state and federal courts challenging $2 billion acquisition of petrochemical company.
• Defended shareholder lawsuits filed in Texas and Wyoming against company and its directors challenging $7 billion merger of two refining companies; case resolved with disclosure-only settlement.
• Defended outside directors of target company in Texas and Delaware cases challenging $7.3 billion merger of offshore drilling companies.
• Defended investment firm against breach of fiduciary duty claims brought by shareholder and former CFO; was brought into the case after the trial court struck the investment firm’s counterclaims and affirmative defenses; argued and won appeals before the South Carolina Court of Appeals and the South Carolina Supreme Court.
• Defended target of $43.1 billion hostile takeover in Illinois federal court litigation; after three-month court battle that uncovered facts supporting client’s claims, the Canadian government prohibited the transaction under Canada’s foreign investment laws.
• Part of team that won three-week bench trial in busted deal litigation; the Delaware Chancery Court ruled in favor of the target company on liability claims; the parties settled before damages trial for $1 billion.

Shareholder Derivative Litigation

• Obtained dismissal of shareholder derivative claims against board of directors of national electrical subcontractor relating to financial restatement.
• Obtained dismissal of shareholder derivative litigation against directors on special committee based on alleged breaches of fiduciary duty relating to FCPA issues.
• Obtained dismissal of shareholder derivative litigation against outside directors on special committee investigating alleged fiduciary breaches relating to FCPA issues in Kazakhstan and Nigeria.
• Obtained dismissal of shareholder derivative claims against directors of international telecommunications infrastructure company alleging breach of fiduciary duties in connection with stock option grants. Appellate ruling made new law limiting discovery in Texas derivative actions involving Delaware corporations.
• Obtained dismissal of shareholder derivative claims against former CEO of energy services company in long-running litigation relating to alleged FCPA violations; after lengthy appellate process, plaintiff voluntarily dismissed entire case with prejudice when defendants threated to file additional motion to dismiss.
• Currently defending national specialty retailer in shareholder derivative litigation relating to loan loss reserves.

Internal Investigations

• Investigating, on behalf of a Fortune 50 exploration and production company board, shareholder demands relating to production and reserve estimates.

• Investigating, on behalf of small cap exploration and production company SLC, allegations made by shareholder in derivative action and shareholder demands relating to issuance of convertible securities to finance acquisition and operations and resulting dilution of common stock.

• Investigated, on behalf of audit committee of a Fortune 500 company based in the Pacific Northwest, alleged accounting improprieties and tone at the top by analyzing accounting records and interviewing officers and employees in more than a dozen locations.

• Investigated, on behalf of the demand review committee of a national retail company, alleged self-dealing and duty of care violations.

• Investigated, on behalf of an upstream energy company, alleged misstatements concerning assets and employees.

• Investigated, on behalf of the audit committee of an energy services company, allegations relating to conflict-of-interest transactions with vendors and related disclosures.

• Investigated, on behalf of the demand review committee of a Canadian energy company, alleged misstatements concerning marketing.

• Investigated, on behalf of the SLC of an energy services company, alleged breaches of fiduciary duty relating to FCPA issues in Nigeria and Kazakhstan.

• Investigated, on behalf of the audit committee of an energy services provider, alleged FCPA violations in connection with certain transactions in Mexico.

• Investigated, on behalf of the audit committee of a transportation-related company, alleged accounting violations (revenue issues).

• Investigated, on behalf of the audit committee of telecom company in Texas, alleged covenant violations.

Commercial and Bankruptcy Litigation

• Vindicated former president of technology company who was wrongly accused of backdating stock options and made the scapegoat for the company’s problems. Case was arbitrated over three weeks and former president received a multi-million-dollar award.
• Successfully prosecuted the three-week AAA arbitration of a dispute over the ownership and operation of an international gas and power trading and marketing company; arbitration panel awarded ownership rights to major energy client and rejected opponent’s $1.3 billion damages claim.
• Secured $6.2 million award in two-week JAMS arbitration for computer software company of dispute involving breach of contract and breach of duty of good faith and fair dealing.
• Represented bond insurer challenging compliance with terms of bonds for Houston professional sports stadiums; hired after two prior firms failed to identify potential argument to increase bond security; case settled after appeal when initial dismissal on sovereign immunity grounds was reversed.
• Represented group of bondholders challenging certain pre-bankruptcy transactions that transferred assets to separate entities in preliminary injunction hearing and trial on expedited schedule with all discovery completed in 3-4 months.
• Obtained summary judgment for company alleged to have breached indenture contract by failing to make timely SEC filings while internal investigation was pending.
• Obtained summary judgment on multi-million-dollar claims filed by former employee against majority shareholder of an oil technology company alleging breach of contract, fraud, and alter ego liability.
• Defended investment bank accused of conspiracy and aiding abetting scheme to deprive plaintiff of oil and gas royalties; after extensive discovery, the case settled at no cost to the client.
• Defended a Fortune 500 turbine manufacturer in a white-collar criminal action alleging government contract fraud arising out of $100 million construction contract.
• Represented upstream energy company in proceedings to obtain injunction against company involved in offshore drilling operations; case resolved by agreement to provide all relief requested by client.
• Represented energy services company in injunctive action to prevent shareholder of acquired company from dissipating stock proceeds from sale until post-acquisition proceedings were completed.
• Represented multiple Chapter 11 filers in evidentiary hearings challenging interim relief and confirmation of plan of reorganization.
• Represented former CEO of renewable energy company in adversary action alleging fraud and breach of fiduciary duty claims; case settled at no cost to client.

Securities and Derivative Litigation

Stock Drop Class Actions

• Obtained dismissal of SEC Rule 10b-5 and Section 11 class actions at motion to dismiss stage filed against numerous companies and their officers and directors, including Block- buster, a hospice care network, a mobile phone service provider and a Big Four accounting firm; also obtained dismissal of related ERISA class actions, state court actions and derivative actions;
• Defended an Oklahoma oil and gas company and its officers and directors in Section 11 class action and related claims filed by creditor trustee; case settled on satisfactory terms;
• Obtained dismissal of 10b-5 and Section 11 claims against Blockbuster and certain of its officers and directors arising from Blockbuster’s split-off from Viacom, Inc.; also obtained dismissal of related state law claims asserted in the class action suit filed in the Delaware Chancery Court and related ERISA stock drop class action;
• Obtained dismissal of 10b-5 claims against hospice care provider after market capitalization dropped $300 million (as well as dismissal of companion state and federal court derivative actions);
• Obtained dismissal of 10b-5 and Section 11 claims against mobile phone service provider after drop in subscribers and revenues (as well as dismissal of companion state and federal court derivative actions);
• Obtained dismissal of 10b-5 claims against Big Four accounting firm arising from its client’s restatement of earnings;
• Obtained dismissal of 10b-5 claims against Blockbuster after drop in revenues and loss of $2 billion in market capitalization (as well as dismissal of companion state court derivative action);
• Represented Heelys, Inc. in a securities class action, derivative actions and individual shareholder lawsuits arising from drop in stock price after IPO; cases were settled to the client’s satisfaction;
• Defeated class certification in securities fraud action asserted against a Big Four accounting firm based on the plaintiffs’ inability to demonstrate a fraud-on-the-market classwide presumption of reliance;

Master Limited Partnership Securities Litigation

• Represented conflicts committee of pipeline MLP in lawsuit challenging acquisition of MLP by its general partner; case settled on satisfactory terms that allowed merger to close and settlement was upheld on appeal after objections were filed;
• Obtained dismissal of claims asserted in Delaware against a publicly traded general partner of a gas and crude oil processing and transportation MLP and certain of its directors regarding its sale of certain assets to the MLP and the subsequent merger of the general partner with the MLP;
• In a separate Delaware litigation, defeated a motion to expedite proceedings seeking to enjoin the MLP’s acquisition of its general partner; merger closed after plaintiffs voluntarily dismissed their claims;
• On behalf of the conflicts and governance committee of a publicly traded MLP, defeated a motion to expedite Texas litigation seeking to enjoin the MLP’s $2.5 billion acquisition by its majority unitholder; merger closed and plaintiffs subsequently withdrew their claims;

Merger Challenge Litigation

• Represented a subsea pipeline company and its officers and directors in Texas and Louisiana state and federal courts challenging the company’s acquisition for $1 billion; case settled on satisfactory terms that allowed the merger to close;

SEC Enforcement Actions

• Represented numerous individuals in various insider trading and accounting fraud SEC investigations, many of which were terminated with no action taken against the clients;

Shareholder Disputes

• Defended private equity fund and related entities in shareholder oppression lawsuit related to acquisition and management of bank; after significant pre-trial motion practice and prior to commencement of depositions, plaintiffs voluntarily dismissed all claims;
• Defended individual investment professional against RICO, fraud, and breach of fiduciary duty claims concerning real estate investment in two-week jury trial; jury ruled in favor of client on RICO and fiduciary duty claims and apportioned client only 1% liability on remaining claim;
• Obtained significant settlement for two individuals who were wrongfully denied partnership interest in company they co-founded to develop LNG export terminals;

Energy Litigation and Arbitration

• Represented midstream company in joint venture dispute regarding construction and operation of cogeneration facility; case settled satisfactorily to client;
• Obtained jury verdict for offshore drilling company in lawsuit to recover unpaid joint interest billings; verdict upheld on appeal;
• On behalf of a Canadian crude oil trading company, prevailed in a New York arbitration to recover payments due for two cargoes of Canadian mixed sweet crude oil that the client sold to another trading company; panel ruled that cargoes met contractual specifications and awarded damages and attorneys’ fees of $3.8 million to the client;
• Represented an energy trading and marketing firm in a price re-opener dispute under a long-term gas supply contract with an electrical cooperative in an American Arbitration Association proceeding; shortly before the hearing, the dispute was settled with a favorable price adjustment for the client;
• Represented a chemical pipeline manufacturer in bankruptcy proceedings in which the debtor/lessor sought to recharacterize a pipeline lease agreement as an unsecured sale of pipeline; case settled favorably for the client;
• On behalf of private equity fund portfolio company, prevailed in a Canadian arbitration to recover the disputed amount of purchase price paid for natural gas storage facilities; arbitrator found that the gas remaining in the facility was cushion gas (not working gas) for which the client should have been required to pay an additional purchase price amount and awarded the client $17.7 million; respondent’s appeal of the award was denied by the Court of Queen’s Bench of Alberta; and
• In a Canadian arbitration, obtained a liability finding in favor of a gas and power trading and marketing company against a major oil producer for wrongful termination of a gas supply contract,
• With damages exceeding $80 million to be determined in a second phase of the bifurcated arbitration; the case settled favorably after a hearing on damages.

Other Commercial Litigation

• Vulcan Golf, LLC v. Google, Inc., et al., 254 F.R.D. 521 (N.D. Ill. 2008), 552 F. Supp.2d 752 (N.D. Ill. 2008), and 2008 WL 2959951, (N.D. Ill. July 31, 2008).
• Thompson v. Jiffy Lube International, Inc., 250 F.R.D 607 (D. Kan. 2008) and 505 F. Supp.2d 907 (D. Kan. 2007).
• Stephani Bayhylle v. Jiffy Lube International, Inc., 146 P.3d 856 (Okla. App. 2006).
• Krispy Kreme Doughnuts Corp. v. Lone Star Doughnuts Ltd., 2006 WL 561520 (Tex. App. – Houston [14th Dist.] 2006).
• Cerberus Partners, L. P. v. Gadsby & Hannah, 728 A.2d 1057 (R.I. 1999).
• Cerberus Partners, L. P. v. Gadsby & Hannah, 976 F. Supp. 119 (D.R.I. 1997).
• Boltex Manufacturing Company, L.P. v. Galperti, Inc., 2019 WL 2569922 (S.D. Tex. June 21, 2019), aff’d 2020 WL 5506404 (5th Cir. Sept. 11, 2020)
• Patterson v. Five Point Capital Midstream Funds I and I, L.P., 2020 WL 7213348 (Tex. App. – Houston [1st Dist.] Dec. 8, 2020).

Energy Litigation

• Lead counsel in dozens of oil and gas cases in the upstream and downstream segments, including ownership disputes, royalty disputes, alleged breaches of implied covenants, subsurface trespass issues, preferential rights and AMI disputes, and antitrust and qui tam cases.
• Lead counsel for power generators in disputes over renewable energy projects ranging from disputes with landowners to claims arising from power interruptions during significant weather events.

Intellectual Property Litigation

• Lead counsel in patent infringement cases in the upstream and downstream segments of the energy sector, including competitor cases and cross border litigation involving numerous jurisdictions.
• Lead counsel in patent infringement cases in the telecommunications and wireless technology sector, including dozens of cases for network providers, semiconductor manufacturers, device designers and implementers.
• Lead counsel in patent infringement cases in the financial services sector, including cases involving fintech such as portfolio balancing, remote wallets and payments, encryption, and Check21 technology.
• Lead counsel in trade secrets and breach of confidentiality and non-compete/non-solicitation cases in energy, manufacturing, and medical device industries.
• Lead counsel in copyright cases, including pirated software under the DMCA, process management software, and architectural copyright.

Securities and Financial Litigation

• Lead counsel in numerous financial industry disputes, including complex lender liability cases, RICO cases, securities and commodities cases, and breach of fiduciary duty cases.
• Lead counsel in numerous ERISA class actions and individual cases in various industries, arising from activities including pension plan spin offs, and involving claims for breaches of fiduciary duty, mismanagement, misrepresentation, and statutory violations.

Appellate Work

• Argued landmark cases on appeal in state and federal courts involving issues including punitive damages, automotive products liability, subsurface trespass and groundwater issues, ERISA preemption, oil and gas implied covenants, patent infringement, and authority of the ITC to exclude downstream products of non-parties under Section 337 of the Tariff Act (argued for certain network providers and handset manufacturer.

ITC Power Limited

• Kyocera Wireless Corp. v. Int’! Trade Comm’n, 545 F.3d 1340 (Fed. Cir. 2008) (landmark decision significantly limiting ITC’s ability to exclude downstream products upon finding of patent infringement) (argued for Cingular Wireless, T-Mobile and BlackBerry)

Patent Damages Clarified

• Summit 6 LLC v. Research In Motion Corp. et al., case number 3:11-cv-00367 in the U.S. District Court for the Northern District of Texas (co-counsel for Samsung) (responsible for inter alia damages portion of patent infringement case at trial and post-trial), affirmed, 802 F.3d 1283 (Fed. Cir. 2015) (affirming in face of strong opposition and constitutional challenge, that a lump-sum payment can compensate for both past and future infringement (through the patent’s life), potentially precluding future royalty claims.)

Subsurface Trespass and Consent Burden Established

• FPL Farming Ltd. v. Environmental Processing Systems, L.C., 305 S.W.3d 739 (Tex App. — Beaumont 2009), (affirming trial court decision for defendant) (retained by plaintiff FPL as counsel for further appeals)); reversed and remanded, 351 S.W. 3d 306 (Tex. 2011), holding that the mere possession of a TCEQ permit does not provide immunity from civil liability; on remand, Court of Appeals held that deep subsurface wastewater migration can constitute an actionable trespass because FPL had an economic interest in protecting its deep subsurface aquifer from EPS’ disposal wastewater, FPL Farming Ltd. v. Envtl Processing Sys LC., 383 S.W. 3d 274 (Tex App. — Beaumont 2012). The Court of Appeals further held that the trial court erred in placing the burden on FPL to prove that EPS entered onto FPL’s property without consent. Id. at 284. The Texas Supreme Court granted Environmental Processing System’s petition for review, and after second argument of the case in the Court abrogated a long line of Texas cases, holding that the burden to prove lack of consent in a trespass case rested with the plaintiff, party claiming trespass, 57 S.W.3d 414 (Tex. 2015), because plaintiff had submitted case to jury under existing law, Texas Supreme Court reversed and rendered judgment for EPS, FPL’s motion for rehearing seeking remand in interest of justice due to change in law was denied.

Clarifying Economic Loss Rule

• Equistar v. Dresser Rand 240 S.W.3d 864 (Tex. 2010), reversed and remanded Court of Appeals decision, clarifying Texas law on preserving error for the economic loss rule and the statute of limitations under Texas law.

Rule of Capture: Horizontal Drilling and Royalties

• Browning Oil Co. v. Luecke, 38 S.W.3d 625 (Tex. App. 2000), establishing how royalties are allocated from commingled production and the impact of lease anti-dilution clauses, holding that royalties should be based on the productive length of the wellbore within a tract, not the entire well, and that anti-dilution clauses must be strictly followed, potentially invalidating pooled units if breached and providing guidance in horizontal drilling, impacting how operators form units and compensate royalty owners.