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The Supreme Court Resolves Circuit Court Split Related to Class Action Suits In Campbell-Ewald Co. v. Gomez
Tuesday, February 9, 2016
In Campbell-Ewald Co. v. Gomez, the Supreme Court recently decided a previous split between the Federal Circuit Courts. Specifically, the Court considered the issue whether a case is moot and beyond the judicial power of Article III of the Constitution when the representative plaintiff in a class action receives an offer of complete relief via an Offer of Judgment. In an opinion by Justice Ginsburg issued on January 20, 2016, the Supreme Court held 6–3 that an Offer of Judgment under Federal Rule of Civil Procedure 68 does not moot a plaintiff's claim. In order to fully appreciate the Supreme Court’s decision and the issue that divided the Federal Courts of Appeals, it is worth examining the prior case law addressing this

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Litigation Update: 5th Circuit Adopts Presumption Favoring Federal Jurisdiction in CAFA Cases.
Friday, January 22, 2016
On January 7, 2016, the Fifth Circuit adopted a presumption in favor of retaining federal jurisdiction in class actions removed under the Class Action Fairness Act ("CAFA"). The decision is good news for class action defendants. It places the burden of proving CAFA exceptions squarely on plaintiffs, narrowing CAFA's already limited exceptions, and making it more likely that class actions will remain in federal court. Look for the plaintiff's bar to respond with pleadings explicitly tailored to remain within the CAFA exceptions. CAFA makes federal jurisdiction mandatory over certain large, high-dollar class action lawsuits, with limited exceptions. See 28 U.S.C.A. § 1332(d). The local controversy exception divests federal

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Subrogation Alert: Texas Supreme Court Permits Loss of Use Damages in Total Destruction Case
Monday, January 11, 2016
Texas is no longer out of step with the majority trend in other jurisdictions permitting loss of use damages in cases involving totally destroyed property. In addition to recovering the fair market value of destroyed property, the owner or subrogated insurer should now be able to recover loss of use damages, including damages for lost profits. The Texas Supreme Court issued the opinion in J&D Towing, LLC v. American Alternative Insurance Corporation on January 8, 2016. The opinion of the court is available online. The question presented was simple – in addition to recovering the fair market value of the truck immediately before the accident, may J&D recover loss-of-use damages, such as lost profits? The plaintiff,

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Tom Ciarlone to present at Texas Lawyers Energy Summit
Monday, November 30, 2015
Director Tom Ciarlone will present at the Texas Lawyers' Energy Summit on Wednesday, December 2nd at the Magnolia Hotel in downtown Houston, Texas. Tom will be presenting on Hot Topics in Energy Litigation: Defusing Oil-and-Gas Class Actions (Before They Start); Recent Trends and Developments in Mineral Deed Construction Cases. Click HERE for more information.

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Tom Ciarlone Weighs In on the Recent Marathon Oil Court Victory
Wednesday, October 14, 2015
Tom Ciarlone, Director in KRCL's Houston office, weights in on the recent Marathon Oil court victory in a Houston Business Journal Article.

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Litigation Update: Employee Background Checks: Duties And Limitations On The Employer
Tuesday, September 29, 2015
Conducting background checks is both a necessary and risky venture that employers take on when hiring and retaining employees. Employers are increasingly finding themselves in litigation challenging the use of background checks as part of the screening process when hiring new employees. In light of this litigation trend coupled with recent local and state restrictions on the content and scope of background checks, in order to avoid litigation, employers need to be aware of their rights, duties and limitations with respect to conducting background checks. The Basics Of Background Checks When conducting background checks on prospective employees, employers must keep in mind the position for which prospective employees are applying in

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BJ Jones to speak at Greater Dallas Chapter of CLM’s October Educational & Networking event
Wednesday, September 23, 2015
Senior Attorney BJ Jones is set to speak at Greater Dallas Chapter of CLM’s October Educational & Networking event. The panel presentation will cover recent trends in construction defect claims and litigation, including the interplay when claims are asserted concurrently against both the general contractor for construction defect claims and design professionals for architects and engineers claims. The presentation will discuss how claims are impacted and settlements are negotiated when construction defect and A&E claims intersect. Joining BJ on the panel are Sharif Azim, Senior Underwriter for Allied World Assurance Company, Ltd., Joseph Mira, Attorney at Slates Harwell, LLP, and Gregory Ziegler, Attorney at Macdonald

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Subrogation Alert: New Texas Statute Affecting Condominium Construction Defect Claims
Thursday, September 10, 2015
Before filing a lawsuit or initiating an arbitration proceeding pertaining to a construction defect, a condominium association in Texas with eight or more units must now comply with the newly added Section 82.119 to Chapter 82 of the Texas Property Code. This is in addition to compliance with the Texas Residential Construction Liability Act (RCLA) and any preconditions included in the condominium association’s declarations. Section 82.119 requires affected associations to have a licensed professional engineer inspect the units and common elements in question and prepare a written report that (1) identifies the specific units or common elements, (2) describes the present physical condition of the units or common elements, and (3)

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Litigation Update: Loss-of-Use Damages in the Event of a Total Loss
Monday, August 31, 2015
On September 22, 2015, the Texas Supreme Court will hear oral argument in the case J&D Towing, LLC v. American Alternative Insurance Corporation, and the ruling could potentially have drastic effects upon how insurers handle and value property damage claims that involve a total loss. For years, the rule in Texas has been that when a person's property is damaged but repairable, he can recover damages for both the cost of repairs and the loss-of-use of the property. If that property is totally destroyed, however, loss-of-use damages may not be recovered. Instead, the only recoverable damage is the fair market value of the property destroyed. The petitioner in this case, armed with a recent decision from the Fort Worth Court of Appeals in

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Derivative Shareholder Litigation Involving Closely Held Corporations:
Thursday, July 30, 2015
The Texas Supreme Court’s recent decision in Sneed v. Webre strengthened the rights of shareholders of closely held corporations to challenge irresponsible or self-serving corporate management. Sneed v. Webre, No. 12–0045, 2015 WL 3451653 (Tex. May 29, 2015). Many small businesses in Texas operate as closely held corporations, i.e., the company has less than thirty-five shareholders and is not publicly traded. Tex. Bus. Orgs. Code § 21.563 (2015). The Court’s opinion reinforced the legislature’s prerogative to provide shareholders of closely held corporations easier access to judicial relief in derivative actions. It ultimately held (1) shareholders of closely held corporations could bypass the board of

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