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Nuisance Cases Against Energy Companies in Texas, Pennsylvania and Other Areas with Significant or Developing Oil and Gas Exploration
Energy companies increasingly have been the target of nuisance suits alleging that drilling operations were a nuisance to nearby residents. But saying something is a nuisance case, as the Texas Supreme Court recently noted, “does not tell you much.” A variety of things have generated nuisance allegations against energy companies, such as bright lights on drilling rigs, vibrations from drilling, odor from condensate tanks, exhaust fumes from trucks, dust from construction, and noise from compressor stations. Some cases allege personal injury; others allege only property damage. Some claim intentional behavior; some claim negligent behavior; others only claim that the condition was out-of-place with its surroundings. Given the muddled state of nuisance law, this article first outlines the history of nuisance law to give context to the present confusion. With that historical context in mind, it then discusses modern private nuisance in Texas and Pennsylvania, with reference to other jurisdictions having significant oil and gas development—what it is, what it is not, and a host of issues surrounding recent nuisance cases.
Series LLCs - Part One: Current Status, Multi-State Issues, and Potential Uniform Limited Liability Company Protected Series Act
The Series Limited Liability Company (“Series LLC”), a variation of the traditional limited liability company (LLC), is the newest entity enterprise on the business scene today. Within this legal entity, separate “series” or “cells” can be created and established under the umbrella of a single LLC.
WHETHER UCC ARTICLE 4 IN TEXAS PREEMPTS COMMON LAW FRAUD AND BREACH OF CONTRACT CLAIMS IN THE RELATIONSHIP BETWEEN A BANK AND ITS CUSTOMER
Under Texas law, the UCC regulates a bank’s handling of deposits and collections for its customers. American Dream Team, Inc. (“ADT”) filed suit against Citizens State Bank (“Bank”) alleging that Bank had improperly charged back $30,000.00 against its account for a provisional credit extended on a counterfeit check. The trial court granted summary judgment to Bank, and ADT appealed. There are two pertinent issues in this review: (1) whether Uniform Commercial Code Article 4 (the “Code”) preempts a claim of common law fraud when looking at communication between a bank and its customer; and (2) whether the Code preempts common law rules concerning breach of contract. The Tyler Court of Appeals (the “Court”) held that: (1) if the Code is silent on an issue, common law may supplement the Code; and (2) the Code preempts common law breach of contract claims.
WHETHER AN AGREEMENT TO ARBITRATE DISPUTES IS ILLUSORY AND THUS UNENFORCEABLE WHEN ONE PARTY HAS THE POWER TO TERMINATE ITS OBLIGATION AT ANY TIME, EFFECTIVE IMMEDIATELY WITHOUT ADVANCE NOTICE OF TERMINATION
Dude, Where's My Car? How the Proposed Uniform Certificate of Title Act Addresses Conflicts Between the Texas Certificate of Title Act and the Uniform Commercial Code
Joe Consumer finds a vehicle at a dealership, makes the deal and fills out paperwork to transfer the ownership of the vehicle while paying the dealer to cover the titling expenses. The dealer promises to send the titling paperwork to the state certificate of title (“CT”) office so that the ownership of record may be transferred to Joe pursuant to the state’s CT law. Then, maybe two weeks after purchasing the car, Joe attempts to leave home for work, but instead finds his vehicle in the process of being repossessed by the dealer's bank. Joe, extremely confused and irritated, may find that, while Joe filled out the appropriate documentation needed for a CT application, the dealer did not file the documentation with the state CT office. Now, Joe must file a declaratory action and argue that a judge should declare Joe to be the proper owner under generally applicable laws including the Uniform Commercial Code (“UCC”), property and contract laws, and perhaps equitable principles, the applicable CT law, and even the Bankruptcy Code. Each of these laws is challenging in this context, and the relations between them add to the complexity. Joe may be facing a very expensive (and uneconomical) lawsuit as his only legal remedy.
Fiduciary Duties and Minority Shareholder Oppression from the Defense Perspective: Differing Approaches in Texas, Delaware, and Nevada
Suits by minority shareholders in Texas are on the rise and represent an expanding, cutting-edge area of civil litigation in this state and across the country. This article first addresses fiduciary duty requirements in Texas and Delaware, and the mechanisms available under the “Internal Affairs Doctrine” that may mandate the application of another state’s law instead of Texas’ in the context of fiduciary and shareholder litigation. There follows a discussion of Texas law on the evolving legal theory of “Minority Shareholder Oppression.” As will be seen, unlike the broad and amorphous formulation of the doctrine some Texas Courts of Appeals have adopted (absent meaningful guidance so far from the state’s supreme court), Delaware has rejected the Texas lower courts’ approach of adopting a vague and general, almost standard-less cause of action called “shareholder oppression,” in favor of a case-specific approach designed to protect minority shareholders in limited circumstances, such as squeeze-out mergers and freeze-outs. Delaware courts do this mostly through the way they interpret fiduciary and disclosure duties as well as minority shareholder appraisal rights. Finally, this paper concludes with a brief analysis of minority shareholder oppression in Nevada, a state that is seen as an increasingly attractive alternative forum for incorporation.
The Texas Uniform Trade Secrets Act
This year, the Texas Legislature enacted the Texas Uniform Trade Secrets Act (“TUTSA”). On September 1, 2013, Texas will join 46 other states that are currently governed by some form of the Uniform Trade Secrets Act. TUTSA codifies and modernizes Texas law on misappropriation of trade secrets by providing a simple legislative framework for litigating trade secret cases. Among other things, TUTSA provides an unambiguous and updated definition of trade secrets, a simplified means for obtaining injunctive relief and sealing court records, and an attorneys’ fees provision for recovering fees from those parties who engage in willful and malicious activity. What follows is a section by section analysis of TUTSA.
Lifting the Veil and Finding the Pot of Gold: Piercing the Corporate Veil and Substantive Consolidation in the United States
This article presents a hypothetical case involving a publicly traded entity and its affiliated privately held entity involved in real estate development and services. The two entities are co-borrowers and bondholders have liens on both entities' assets. The article considers application of the doctrines of "piercing the corporate veil" and "substantive consolidation" of assets in this situation.
Statement on Changes to the Procedure for Good Standing Certificates Issued by the Texas Comptroller of Public Accounts
Acceleration Notices - Whether Holder of a Note Gave Proper Notice to Maker of Holder's Intent to Accelerate
Purchasing the Notes - Whether the Purchase of a Promissory Note from the Note Holder by a Third-Party Discharges the Note
The Intersection of the Dodd-Frank Act and the Foreign Corrupt Practices Act: What All Practitioners, Whistleblowers, Defendants, and Corporations Need to Know
With the enactment of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act),1 government authorities are no longer the only ones with a monetary interest in ferreting out those who violate federal laws. Specifically, section 922 of the Dodd-Frank Act provides a whistleblower program that rewards individuals who assist the Securities and Exchange Commission (SEC) in uncovering securities violations, including Foreign Corrupt Practices Act (FCPA) violations. Because the Dodd-Frank Act allows individual whistleblowers to reap significant benefits by reporting offenders and because the SEC and Department of Justice (DOJ) have increased FCPA prosecutions in recent years, global companies and their employees, especially those in the pharmaceutical and medical device industry, should understand how the Dodd-Frank Act and the FCPA intersect.
Transcending Disciplines: What Every Transactional Lawyer Should Know About Litigation
In many large law firms, transactional lawyers and litigators are divided, herded into separate groups on separate floors in separate offices. But they are often divided by more than just office location. Litigators and transactional attorneys have significantly different practices. Thus, transactional lawyers often do not have an opportunity to learn about some aspects of litigation that could prove helpful in their practices. Yet it is often the transactional attorney that has the first, and perhaps best, opportunity to take steps that protect the client’s litigation position. Accordingly, it is important that transactional attorneys familiarize themselves with certain basic litigation concepts so that they will be equipped to take advantage of these opportunities. This paper addresses certain key concepts that should prove useful to a broad range of transactional attorneys, including: litigation holds, “No Oral Modification” clauses, reliance disclaimers, and arbitration clauses.
Restoring the Balance of Class Certification Power in the Fifth Circuit: The United States Supreme Court's Opinion in Erica P. John Fund, Inc. v. Halliburton, Co.
In Oscar and Halliburton, the Fifth Circuit held that in addition to proving all of the Federal Rule of Civil Procedure (“FRCP”) 23 requirements, a putative securities class must prove loss causation by a preponderance of all admissible evidence before class certification may be granted.4 This was an exceedingly high burden and was noted as such by district courts within the Fifth Circuit, including twice by District Judge Barbara M.G. Lynn in the District Court’s Halliburton opinion.5 The Supreme Court apparently agreed with Judge Lynn that the burden was “exceedingly high” and overruled the Fifth Circuit’s decisions in Oscar and Halliburton: “[t]he question presented in this case is whether securities fraud plaintiffs must also prove loss causation in order to obtain class certification…. [w]e hold that they need not.
Bankruptcy Appeals
This paper provides a guide to the rules governing an appeal to the district court and the court of appeals. The most important issue with respect to these relatively straightforward rules is that the deadlines in bankruptcy appeals are much shorter than in ordinary federal court appeals. This paper also addresses two additional issues – the relaxed standard for finality, providing a broader range of orders subject to appeals, and the jurisdictional statute.
The Development of the Texas Non-Compete; A Tortured History
Although Texas offers tax incentives and a favorable business climate, high tech businesses may have, in the past, understandably been reluctant to relocate to Texas because of the prior anemic protection granted to businesses in the arena of non-competes. These businesses, one assumes, have no interest in training their best and brightest today, only to have them become competitors tomorrow. The development of the non-compete covenant body of law in Texas, especially within the past five years, has addressed many concerns that businesses could have with the enforcement of non-competes. The dual prongs of Sheshunoff Management Services v. Johnson3 and Marsh USA v. Cook,4 addressed fully in this article, have provided some stability to the important business and legal issue of non-compete enforcement in the state of Texas.