The lawsuit claims that Stampede did not meet minimum volume obligations on the BridgeTex pipeline from March 2015 through 2016, breaching its contract. The BridgeTex pipeline carries around 300,000 barrels per day from Colorado City, Texas to the Gulf Coast. Stampede is a privately held midstream operator.

From mid-2014 to early 2016, oil prices dropped by more than 70 percent, prompting production cuts and leading several energy firms to declare bankruptcy. Pipelines function like toll roads, so they are generally considered to be better protected from commodity price fluctuations, but with fewer barrels to ship, pipelines have been affected by output declines.

An amended petition filed March 22 claimed that Stampede owed the plaintiffs over $311.8 million, including interest and late fees, for breaching its shipping obligations. The BridgeTex firms also filed a claim against Ballengee Interests, which guaranteed payments owed by Stampede.

According to court documents, Stampede agreed in August 2014 to ship 30,000 barrels per day of crude and condensate on BridgeTex, which is about 10 percent of the pipeline’s capacity. Court filings state that Stampede executed a Transportation Service Agreement calling for the company to ship on the pipeline for 29 quarters.

Gregory D. Jordan is an Oil and Gas lawyer in Austin. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

In the case, East Texas Copy Systems, Inc. v. Player, the Court of Appeals in Texarkana ruled that a noncompete agreement was nonbinding due to the language used in the agreement.

As part of the sale of a business, the buyer agreed to employ the seller for four years, and the seller agreed not to compete with the buyer in a certain geographic area for a two year period. The noncompete clause stated that if the seller’s employment was terminated “for any reason other than a for cause termination” within two years, then the noncompete clause would no longer be binding. The parties also signed a separate noncompete agreement with identical language regarding the agreement being nonbinding if the seller was terminated for any reason other than for cause.

The seller voluntarily resigned his employment within two years of entering into the agreement and entered into competition with the buyer.

The seller filed a lawsuit seeking a declaration that the noncompete clauses were nonbinding, and the buyer asked the court to enforce the clauses. The trial court found that the seller was not bound by the noncompete agreement. The buyer appealed, arguing that to allow the seller to voluntarily end his employment and begin competing would thwart the purpose of the agreement. The court disagreed, noting that the agreements between the parties covered other issues besides the agreement not to compete. The court held that the plain language of the clause allowed the seller to compete, because both parties agreed that the employment had terminated without cause.

The case illustrates the importance of making sure that a noncompete agreement actually protects the interests that the parties intend to protect.

Gregory D. Jordan is an Austin business attorney and business litigation lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

On January 6, class-action status was granted by U.S. District Judge Ed Kinkeade in Dallas, allowing the four individuals who brought the lawsuit to represent the interests of thousands of landowners. The judge found that there were common legal issues, that Devon Energy owed a common duty to the members of the class, and that a formula can determine the damages owed to each class member, if any.

The landowners claim that the production arm of Devon Energy sold the natural gas to an affiliate, Devon Gas Services, at a low well head price. Devon Gas Services then used its Bridgeport plant to process the gas and deduct a 17.5 percent processing fee from royalty checks, the lawsuit alleges.

The plaintiffs called the processing fee “unreasonable and lucrative” and stated that Devon calculates royalties based on the “artificial” price it received from its own affiliate rather than what it was paid by unaffiliated third parties. The lawsuit also claims that after the gas left the processing plant, Devon and its affiliates made a profit selling the residue gas to third parties, but did not pay royalty owners a share of those profits.

Gregory D. Jordan is an Oil and Gas lawyer in Austin. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

SSG Advisors, LLC and Chiron Financial LLC filed the lawsuit against Daybreak Oil and Gas Inc., claiming that Daybreak violated an agreement among the three companies. The investment firms claim they are owed approximately $1.1 million.

According to court documents, the relationship among the parties began in May 2015. The engagement agreement, which was renewed on two occasions, called for SSG and Chiron to provide investment banking services to Daybreak.

The lawsuit claims that Daybreak failed to submit payment for three months under the most recent engagement agreement, which the firms claim is still active. The lawsuit also names Platinum Partners, LP; Maximillian Resources, LLC; and Zach Weiner, a portfolio manager based in New York City, as co-defendants.

The investment firms allege that Daybreak and Weiner held discussions about restructuring the company, without informing them. The lawsuit claims that Daybreak and Maximillian sold a significant portion of Daybreak’s assets to a third party, which was allegedly a breach of the engagement agreement. According to court documents, SSG and Chiron learned of the sale by reading a press release issued by Daybreak.

Gregory D. Jordan is an Oil and Gas lawyer in Austin. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Mesa Petroleum, founded by T. Boone Pickens, filed suit against J. Cleo Thompson and three exploration and production companies based in Midland. Mesa alleging that Patriot Resources, Baytech and Delaware Basin Resources violated the terms of an investment contract.

The complaint alleges that Thompson and the Midland companies are liable for fraud, breach of contract, tortious interference with a contract, and breach of fiduciary duty. The defendants deny the allegations. The trial in Pecos, Texas is expected to take several weeks.

In January 2007, Thompson and Baytech signed a “participation agreement” with Mesa that committed the companies to offering Mesa an ownership stake of 15 percent in asset acquisitions over five years. According to court documents, Mesa paid $125,000 to enter into the investment agreement and $1 million to participate in an investment known as the Red Bull Prospect.

Mesa claims that the company “elected to participate” in all of the investments that were offered, but the defendants allegedly took new investment opportunities for themselves, failing to offer interests to Mesa as required by the participation agreement. The investments that Mesa claims it missed out on include royalties, revenues, leases, easements, production payments, wells and facilities. Thompson and the other companies claim that they nullified the agreement.

Gregory D. Jordan is an Oil and Gas lawyer in Austin. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

The lawsuit was filed in the U.S. District Court for the Southern District of Texas Aug. 31 by Vallourec Drilling Products USA Inc. (Vallourec) against B.J.’s Drill Stem Testing, Inc. d/b/a Drill Tech LLC (Drill Tech).

According to the lawsuit, Drill Tech purchased 60 joints of 4-inch heavyweight drill pipe and 620 joints of 4-inch drill pipe from Vallourec. The complaint alleges that the drill pipe was delivered, but Vallourec has not received the full payment of $1,282,748.40.

Vallourec claims that Drill Tech paid a deposit of $384,824.52, but failed to pay the remaining balance. According to the complaint, the parties had agreed that the pipe would be delivered “Ex-Works,” meaning that it would be considered delivered once the seller made the goods available for pickup by the buyer. Vallourec claims that it made the pipe available for pickup, but Drill Tech failed to take physical possession after delivery, and Vallourec has therefore incurred storage and other expenses. The plaintiff further alleges that it has been unable to resell the goods, despite commercially reasonable attempts.

The plaintiff is seeking payment for past-due amounts, pre- and post-judgment interest, court costs, attorney fees and other relief to which it may be entitled. A jury trial has been requested.

Gregory D. Jordan is an Austin business attorney and business litigation lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Andrew Collins filed the lawsuit in U.S. District Court for the Southern District of Texas, Houston Division, alleging that Noble Drilling violated Title VII of the Civil Rights Act.

Collins, an African American resident of Harris County, claims that he was subjected to harassment, threats, intimidation, discrimination and disparate treatment because of his race, which caused him embarrassment and emotional distress.

According to the lawsuit, Noble Drilling denied Collins the privileges, benefits, terms and conditions of employment. The complaint alleges that the company retaliated against Collins by transferring him to a less desirable offshore facility after he reported racial and sexual harassment. Noble Drilling threatened Collins with disciplinary action and wrongfully terminated his employment, the lawsuit claims.

Collins seeks back pay including lost wages and benefits, compensatory damages, attorney fees and costs, as well as other relief to which he may be entitled. A trial by jury has been demanded.

Noble Drilling, based in Sugar Land, Texas, operates about 30 drilling rigs, including 14 jackups and 16 semi-submersibles. In 2015, revenue from Shell Oil accounted from 49 percent of the company’s income. The company announced mass layoffs in January 2016.

Gregory D. Jordan is an employment lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

In the case, Shirley Adams et al. v. Murphy Exploration & Production Co.-USA, the lessors and royalty owners sued lessee Murphy for breach of contract, claiming that Murphy had failed to drill an offset well to protect two tracts of land against drainage.

Murphy was assigned oil and gas leases executed by lessors in the Eagle Ford Shale. The parties did not dispute that the leases required the lessee, if a well was completed, to drill an offset well to prevent drainage. A lower court granted Murphy’s motion for summary judgment based on evidence that a well had been drilled and Murphy’s expert’s testimony that it was an offset well.

The Fourth Court of Appeals held that in order for Murphy’s summary judgment burden to be met, Murphy had to conclusively prove that the well was an offset well as a matter of law, thus disproving the element of breach. However, the appeals court found that Murphy failed to meet that burden, as it failed to prove that the well met the commonly understood meaning of the term “offset well,” which is a well used for protection from drainage. The appeals court reversed the grant of summary judgment and remanded the case to the trial court for further proceedings.

Gregory D. Jordan is an Oil and Gas lawyer in Austin. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Rigzone.com claims to host the resumes of over 2 million workers in the oil and gas industry. Workers post their resumes for free, and recruiters pay a fee for access. David W. Kent Jr. founded Rigzone in March 2000 and later sold it to DHI Group, subsequently starting Oilpro.com, a rival site. Rigzone and DHI Group sued Kent and Oilpro in federal court on June 10.

The lawsuit alleges that Kent owned approximately 70 percent of Rigzone when he sold it to DHI Group for $51 million in August 2010, while staying on as president under a consulting agreement. DHI Group claims that Kent received over $35 million from the sale, but the firm alleges that Kent set up a backdoor entry into Rigzone’s website and took its data.

According to the lawsuit, Kent set up Oilpro.com, a competing website, in 2013, posting an online timer that counted down to the minute when his non-compete agreement expired on Oct. 1, 2013. DHI Group also alleges that Kent convinced the core team that operated Rigzone to join him at Oilpro.

Kent was reported to have been arrested March 30 in Texas and faces federal criminal charges of conspiracy and wire fraud for allegedly hacking into Rigzone’s website. If found guilty, he could face up to 25 years in prison.

The lawsuit alleges that Kent sought to sell Oilpro to DHI Group for $20 million. According to the lawsuit, Kent wrote to the CEO of DHI Group saying that he built Oilpro with the purpose of selling it to them, saying that it “seemed to work for all parties before.”

Gregory D. Jordan is an Oil and Gas lawyer in Austin. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

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Grynberg says he is owed even more and is considering appealing the verdict. Grynberg says his royalties compensation could have been nearly $40 million if a damages expert he hired had been permitted to testify before the jury. Grynberg, an 84-year-old resident of Denver and graduate of the Colorado School of Mines, said that he had been in the oil business since 1953. Grynberg said he suspected something wrong when he noticed that his mineral royalties from Kinder Morgan were 40 percent higher than his royalties from Exxon Mobil.

“I will not be cheated,” said Grynberg.

The lawsuit and similar lawsuits filed recently may inspire other royalty owners to take legal action. A major problem for many royalty owners is that the royalty statements they receive from production companies are often a single page, with no information on how the royalties were calculated or what costs were deducted. Some lawsuits have accused companies of deducting “post-production” costs from royalty payments.

Grynberg’s land contains large reserves of carbon dioxide gas, which is used to boost production in oil wells. The jury found that Exxon Mobil paid royalties based on less than the market value of the carbon dioxide.

Gregory D. Jordan is an Oil and Gas lawyer in Austin. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

The lawsuit was filed in state district court in Waco by the Heart of Texas Region Mental Health Mental Retardation Center (MHMR), against CoCentrix Inc., a Florida-based company. The lawsuit seeks a refund of $250,000 that the agency claims it paid the software provider, as well as triple damages available under the Texas Deceptive Trade Practices Act.

According to the lawsuit, MHMR contracted with UNI/CARE Systems Inc. to provide software for a records system. CoCentrix later assumed all obligations under the contract, which specified that support documentation, training, installation and consulting would be provided.

MHMR claims that it paid $250,000 under the contract, but the software provider was not able to provide a system that met the necessary criteria. In fact, MHMR alleges that the software system provided could not even be tested successfully. The agency claims that the contract provides for the return of the $250,000 if the system could not be properly installed.

According to the lawsuit, CoCentrix missed more than 10 deadlines for the software to be completed. MHMR states that it terminated the contract on or about September 3, 2015 and demanded a refund of the money it had paid to the defendant, but CoCentrix did not refund the money.

Gregory D. Jordan is an Austin business attorney and business litigation lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Shelia Latting, who is black, claims that her employment was terminated a year ago, and that she was replaced by two white employees who were less qualified.

The lawsuit, filed in state district court in Travis County, names Texas Agriculture Commissioner Sid Miller as a defendant, in his official capacity. Latting has been a state employee for 21 years. According to the lawsuit, shortly before Miller was sworn into office, he offered Latting the position of chief financial officer, and she accepted. Latting worked on a budget overhaul at Miller’s request, but was not promoted, and was told her job was terminated due to a “reduction of force,” the lawsuit claims.

Latting claims that two white women were hired to positions essentially the same as her former position. The lawsuit alleges that the two women had worked with an individual at the Texas Facilities Commission, and were hired shortly after that individual was appointed as an assistant commissioner at the Department of Agriculture. An internal audit last April found that the Facilities Commission had often hired employees with no competition and awarded promotions that were unsupported by evaluations. The Austin American-Statesman reported in July that the new assistant commissioner brought six former employees to the Department of Agriculture, and some of them were given quick promotions and raises.

Latting’s lawsuit seeks between $200,000 and $1 million in damages, as well as a change in policy to help prevent future discrimination.

Hyperdynamics Corp. filed suit claiming that Dana Petroleum PLC and Tullow PLC used a now-settled foreign corruption investigation under the U.S. Foreign Corrupt Practices Act to delay drilling activities long after the investigation was resolved. The lawsuit claims that the delays are putting in jeopardy the drilling of a well that a contract requires to be completed by September. According to the lawsuit, the small company could lose its concession, which is its sole asset, if the well is not completed on time.

Hyperdynamics claims that the defendants are in breach of the joint operating agreement and is acting in bad faith, because its supposed reason for failing to proceed has no foundation, as the investigation is now settled. Hyperdynamics said that it had provided its partners with new contract assurances from the government of Guinea. Previously, the partners had claimed that they were concerned that the government of Guinea could invalidate the concession.

Hyperdynamics has requested an injunction from the U.S. District Court for the Southern District of Texas, requiring Tullow to begin drilling operations again. Hyperdynamics has also filed an arbitration request seeking “further damages.”

Hyperdynamics resolved the corruption investigation with a $75,000 settlement, which was seen as a victory for the company, but the allegations have continued to cause problems.

Gregory D. Jordan is an Austin Oil and Gas lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Yeti Coolers, an Austin company, accuses a Missouri company, Mammoth Coolers, of selling products that infringe on Yeti’s rights. Yeti alleges unfair competition, unjust enrichment, trade dress infringement and trade dress dilution. The company seeks money damages and the recall and destruction of the offending products.

The products at issue are similar to Yeti’s Roadie and Tundra coolers and high-end Rambler tumblers. The company reports that it has sold more than 1 million Tundra coolers, which sell for $300 to $1,400, and more than 400,000 Roadie coolers, which sell for $250. The Rambler tumblers sell for between $30 and $40.

Yeti claims in the lawsuit that Mammoth Coolers’ Titan and Discovery coolers and its Rover tumblers are confusingly similar to Yeti’s products. Yeti alleges that Mammoth is using Yeti’s trade dress or colorable imitations, which are likely to create the misleading and false impression that the allegedly infringing products are associated with or authorized by Yeti. Yeti claims that the company used its trade dress continuously and extensively, and it became famous and acquired secondary meaning, before Mammoth entered the market.

Mammoth advertises its products as less expensive than their competitors.

Yeti has requested a jury trial.

Gregory D. Jordan is an Austin business attorney and business litigation lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

The collective action lawsuit was filed in U.S. District Court for the Eastern District of Texas, Beaumont Division, by Tommy Breed, individually and for all others similarly situated. Breed alleges that his former employer, Wastewater Specialties, violated the Fair Labor Standards Act by failing to pay him overtime wages.

According to the lawsuit, Wastewater Specialities employed Breed from May 2013 until Sept. 2015. The complaint alleges that Breed and others worked more than 40 hours per week, but were not paid overtime; instead they were paid straight time for what the company called “unbillable” hours.

The lawsuit seeks damages for Breed and others in the class, including compensation for overtime worked, liquidated damages, interest and attorney’s fees and costs.

Wastewater Specialties is an environmental services company that operates in the gulf coast region, with its headquarters in Sulphur, Louisiana, and offices in Texas City and Beaumont.

Certain employees who work more than 40 hours per week are entitled to one and a half times their regular rate of pay, under the federal Fair Labor Standards Act and the Texas Payday Law. Certain executive, professional and administrative employees who make more than a certain amount per week are exempt from the overtime requirements.

Gregory D. Jordan is an employment lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

The Eleventh Court of Appeals issued its opinion Aug. 31, 2015 in the case of St. Paul Fire & Marine Insurance Company and St. Paul Surplus Lines Insurance Company, Appellants v. Petroplex Energy, Inc, Appellee, on appeal from the 142nd District Court, Midland County, Texas.

The case involved a gas well, the Quinn 1-6H Well in Reeves County, Texas, that was operated by Petroplex Energy and insured by the appellant insurance companies. The Quinn Well was intended to be operated as a partnership between Petroplex and Endeavor Energy Resources, LP, but the two companies disagreed over certain matters including blowout insurance, and a joint operating agreement was never signed. A partial assignment of the Quinn Well to Endeavor was executed, but the 80 percent interest was subsequently reassigned to Petroplex.

On Sept. 14, 2007, a buildup of gas caused the Quinn Well to blow out, and Petroplex lost control of the well. As a result, equipment owned by third parties was damaged, and Endeavor advanced blowout expenses to Petroplex. A well-control policy and commercial liability policy were held by Petroplex, but the insurance companies claimed that Petroplex did not own 100 percent of the working interest in the Quinn Well, that it was not an insured well, and Petroplex could not recover under the policies.

The appeals court affirmed the trial court’s judgment in favor of Petroplex on all issues presented.

Gregory D. Jordan is an Oil and Gas lawyer in Austin. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

The plaintiff investors claimed that their business partners gave themselves credit for financial contributions that were not actually made and excluded the investors from a lease acquisition project when the defendants learned that it would be extremely profitable.

The case is Tiburon Land and Cattle LP and Trek Resources on behalf of The Three Finger/Black Shale Prospect Partnership v. Sarah Kate Jones, as Independent Executrix of the Estate of Thomas J. Taylor, deceased, et al.

The plaintiffs presented evidence that although they shared in the first 30,000 acres of leases that the project acquired, they were excluded from a later acquisition of 16,000 acres. According to the plaintiffs, the defendants, including Abilene oil man Thomas J. Taylor, Kerwin Stephens and Chester Carroll, used a second set of accounting books to hide profits and make it appear as if they had made contributions that were not actually made by them.

The jury awarded $24 million in actual damages and $9 million in exemplary damages to one set of plaintiffs, and $28 million to another group of investors who intervened in the case.

The jury found that the fiduciary breaches by Stephens constituted theft, strengthening the total verdict amount.

Gregory D. Jordan is an Oil and Gas lawyer in Austin. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Elissa Shetzer filed the lawsuit in U.S. District Court for the Eastern District of Texas against her employer, Harte-Hanks Response Management/Austin LP, which manages the call center in Texarkana, Texas. Shetzer claims that employees were not paid for time spent on tasks such as logging in to call systems and performing administrative work at the end of their shifts.

The lawsuit alleges that it took approximately 15 minutes to log into the computer system before the start of a shift, which was required in order to be able to take calls. In addition, the suit claims that employees had to spend about 10 minutes after each shift logging off and shutting down computer programs.

According to the lawsuit, if employees were on a call when their shift ended, they were paid only until the end of the phone call, even if there was additional administrative work related to the call that still needed to be completed before they could leave work. In addition, the suit alleges that workers often had to take a final customer call after their phones had automatically clocked them out.

Shetzer claims violations of the Fair Labor Standards Act and is seeking class-action status for her lawsuit. The suit seeks monetary damages, liquidated damages, interests and costs from the defendants.

Gregory D. Jordan is an employment lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Chesapeake is appealing a 2014 ruling by a San Antonio appeals court that upheld a decision by a state district court awarding at least $1 million to a Fort Worth family. The Hyder family argued that its lease with Chesapeake was heavily negotiated and specifically tailored to be “cost-free,” but Chesapeake has altered its interpretation of its obligations, attempting to deduct post-production costs.

The case is being closely watched by the oil and gas industry in Texas. The National Association of Royalty Owners-Texas and the Texas Land and Mineral Owners Association are backing the Hyders, saying that this case is one of many in which Chesapeake has sought to improperly deduct costs from royalty payments.

Observers say that the impact of the case will depend on whether the high court addresses its previous ruling in Heritage Resources v. NationsBank, which permitted the deduction of post-production costs even when contracts appear to disallow it. The Hyder lease included a provision stating that the findings in the Heritage case do not apply. The Fourth Court of Appeals in San Antonio agreed that the contract provision served to modify the general rule set forth in the Heritage case.

Gregory D. Jordan is an Oil and Gas lawyer in Austin. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

The state high court’s 5-4 decision in Chesapeake Exploration, LLC v. Hyder clarifies when post-production costs may be exempted from overriding royalty interests. The court stated that generally, an overriding royalty on production of gas and oil is not burdened by production costs, but must carry a share of post-production costs, unless there is an agreement that states otherwise. The court stated that the only question to be decided in the lawsuit was whether there was an agreement allocating post-production costs, and the court concluded that there was.

The Texas Supreme Court agreed with San Antonio’s Fourth Court of Appeals, which in turn had sided with a court in Tarrant County, Texas, which awarded the Hyder family about $1 million.

In the Hyder case, the state high court revisited its 1996 ruling in Heritage Resources Inc. v. NationsBank. Before Hyder, the default rule had been that royalty interests were subject to post-production costs, which may include taxes and expenses for transportation and treatment. While case law recognized that post-production costs could be allocated by agreement, the court’s ruling in Heritage Resources made it difficult in practice. The “default rule” that post-production costs may be charged to royalty owners has now been significantly weakened.

Gregory D. Jordan is an Oil and Gas lawyer in Austin. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

In Phillips v. Carlton Energy Group, LLC, Carlton sued entrepreneur Gene Phillips and other entities, alleging tortious interference with the company’s attempt to invest in an unproven methane exploration project in Bulgaria. Carlton sought the lost “market value” of its interest in the venture, and an expert witness testified that the fair market value of the investment ranged from $12.54 million to $11.305 billion, under three different models of damages. The jury found for Carlton and awarded actual damages of $66.5 million and exemplary damages of $8.5 million.

The First District Court of Appeals in Houston upheld the jury’s award on appeal. However, the Texas Supreme Court unanimously reversed the damages award, ruling that there was no evidence that the amount was based on objective facts from which the amount of lost profits could be determined. The court stated that while the requirement of “reasonable certainty” clearly applies when the damages sought are the lost profits themselves, it had not previously made clear that the standard also applies when lost profits are used instead to ascertain the market value of property. However, the court ruled that the reasonable certainty standard “clearly must” apply in such a case as well.

Gregory D. Jordan is an Austin business attorney and business litigation lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Bradford Thompson brought a complaint in the U.S. District Court for the Southern District of Texas, Houston Division, against Total Petrochemicals and Refining USA Inc. The lawsuit, filed on May 6, claimed violation of the Family and Medical Leave Act (FMLA) in 2014 and 2015.

The lawsuit alleged that Thompson has been employed by Total Petrochemicals for more than 19 years and required extensive medical leave in 2014 due to two separate instances of surgery and hospitalization. Thompson claimed that his need for FMLA leave was clearly communicated to his employer. He first suffered a ruptured appendix and later had complications following cataract surgery.

According to his lawsuit, Thompson did not exceed his allotted FMLA leave. After returning to work in March 2015, Thompson claimed that he was put on notice for unsatisfactory work performance and was given a negative work assessment, most of which he was not allowed to see.

Thompson claims that after he argued that he was being criticized on a pretext and that his employer was retaliating against him, he was denied a raise. Thompson claims loss of wages and benefits, emotional distress and damage to future employment prospects. The lawsuit seeks declaratory relief, back and front pay, other damages and attorney’s fees and costs.

Gregory D. Jordan is an employment lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Aetna claims that North Cypress designed an out-of-network strategy that charged unnecessarily high fees to Aetna, and that it improperly offered ownership interests in the hospital in exchange for patient referrals.

The lawsuit argues that the action by North Cypress constitutes tortious interference (intentional, damaging interference in a business relationship) with in-network agreements between Aetna and the hospital’s physician-owners. The company further argues that the hospital’s actions violate the federal Racketeer Influenced and Corrupt Organizations Act (RICO) and the Participating Facility Agreement between the hospital and MultiPlan, Inc., an affiliate of Aetna.

According to the lawsuit, North Cypress has also violated Texas statutes regarding unapproved billing practices, unprofessional conduct and inappropriate payment for referrals.

Allegedly, North Cypress’ out-of-network strategy included charging grossly excessive fees, providing illegal kickbacks to doctors for referrals, waiving the financial responsibility of Aetna members, upcoding and improperly using non-specific billing codes, and simply overcharging. According to the suit, these practices resulted in Aetna being overcharged by up to $120 million.

The lawsuit was filed in U.S. District Court for the Southern District of Texas, Houston Division.

Gregory D. Jordan is an Austin business attorney and business litigation lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Linda J. Donnie is suing Central United Life, claiming employment discrimination. Donnie filed the lawsuit in the Houston Division of the Southern District of Texas on October 27.

The lawsuit claims that Donnie was hired as associate manager of the underwriting department of Central United Life. She had 14 years of prior experience. According to the complaint, positions under Donnie were eliminated, leaving her solely responsible for the department. The complaint alleges that after a younger white woman was hired as chief operations officer, Donnie, an African-American, began to have her decisions questioned and overriden. Donnie claims that she was presented in a bad light to the corporation and to customers.

The lawsuit states that after Donnie filed a grievance, she was required to participate in an “improvement plan” and experienced a hostile work environment. She was ultimately dismissed for stated grounds based on an underwriting decision she had made a year earlier. The lawsuit claims age discrimination, racial discrimination, retaliation and harassment. Donnie is seeking damages, front and back pay, reinstatement and an injunction against further discrimination.

Gregory D. Jordan is a business lawyer and business litigation attorney in Austin, TX. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

The jury verdict was accepted by the U.S. District Court for the Southern District of Texas, while allowing W&T to file any post-verdict motions.

Apache Corp., an independent oil and gas exploration and production company, has operations in Canada and Egypt, in addition to the United States. W&T Offshore has operations in approximately 66 offshore fields in the Gulf of Mexico. W&T also has onshore operations in the Permian Basin of West Texas, but a substantial majority of the company’s operations are offshore.

W&T filed the lawsuit against Apache, also based in Houston, in 2011, claiming that the energy company breached a processing contract and recorded inaccurate figures regarding how much processed oil was owed to W&T.

Apache has now filed a countersuit claiming $31.5 million in damages. Apache representatives stated that W&T breached the joint operating agreement by failing to pay its assigned share of 49 percent of costs associated with plugging and abandoning three Gulf of Mexico offshore wells.

An Apache spokesman said that W&T refused to comply with “clear contractual obligations,” leading Apache to file the countersuit.

Gregory D. Jordan is an Austin business attorney and business litigation lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

In 2014, the U.S. Department of Labor opened new offices in Austin and Temple in 2014 to handle an increased number of complaints the agency is receiving, as well as the increased litigation.

Lawsuits and complaints have been filed over a variety of issues. In one example, employers have required workers to show up to work at a particular time, but did not start the pay clock until later. Other cases involve employers who have refused to pay when employees work overtime without obtaining pre-approval.

Many of the lawsuits are filed under the Fair Labor Standards Act (FLSA), the 1938 law that created the 40-hour workweek and established overtime pay and the minimum wage.

Legal experts say that a number of factors have contributed to the increase in litigation, including that workers have become more knowledgeable about the law. There has also been growth in small businesses that may not be aware of the law’s requirements. In addition, the statute provides for legal fees, making it relatively easy for workers to obtain legal representation than for other types of cases.

In December 2014, the U.S. Supreme Court ruled on a case involving workers’ pay. In a unanimous decision, the court held that a temp agency did not have to pay Amazon warehouse workers for the time they spent in a security screening checkpoint as they exited their workplace.

Gregory D. Jordan is an employment lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Tesha Faith Garganta filed the lawsuit against the Spring Independent School District on February 6 in the U.S. District Court for the Southern District of Texas, Houston Division. Five staff members were also named as defendants: Jeremy Hubbard, dean of instruction; Dean McKeithen, human resources director; Julie Allen, Title IX coordinator; Lenny Hardoin, principal; and Ralph H. Draper, superintendent.

The lawsuit alleges that on November 5, 2013, while Garganta was employed at Edwin M. Wells Middle School as a secretary and bookkeeper, she asked Hubbard to show her where supplies were kept in a room. The complaint alleges that Hubbard followed her into the room, closed the door and made remarks of a sexual nature. The lawsuit also alleges that further incidents took place in December 2013.

According to the complaint, Garganta’s work performance and health were affected by the discrimination and harassment, and no corrective action was taken by the school district. Garganta is seeking damages for lost wages, physical and emotional distress, impairment of earning capacity, medical expenses, punitive damages and attorney’s fees and costs.

Gregory D. Jordan is an employment lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Shireika Whitmore filed suit against HSMTX/LibertyLLC, which does business as Liberty Healthcare Center, in the Beaumont Division of the Eastern District of Texas, citing race discrimination.

According to the complaint, Whitmore began working as a respiratory therapist at Liberty Healthcare’s nursing facility in Liberty, Texas in June 2013. Whitmore alleged that the working environment was heavily charged with racial discrimination and that she was subjected to intolerably abusive actions because of her race.

Whitmore alleges that the director of nursing, a white woman, accused Whitmore, a black woman, of yelling at a white employee. According to the complaint, the director would only take statements from white employees regarding the incident, and black employees who witnessed the incident and wished to give statements were not permitted to do so. Following an investigation initiated by the director, Whitmore’s employment was terminated, the suit states.

Whitmore claims that the director of nursing told her that there was no way for her to save her job as part of the investigation, effectively targeting her for her employment to be terminated.

The lawsuit requests damages for back pay, front pay, pain and suffering, economic losses, exemplary damages, attorney’s fees and costs, along with other relief. A jury trial is requested.

Gregory D. Jordan is an employment lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Citgo Petroleum Corporation filed the lawsuit against Daibes Oil and Fred A. Daibes in the Southern District of Texas, Houston Division, on October 14.

The lawsuit alleges that Citgo and Daibes Oil entered into a marketer-franchise agreement whereby Daibes would purchase motor fuel from Citgo for resale under the Citgo brand name to consumers and retailers. According to the complaint, they entered into the agreement on February 16, 2012.

Also according to the complaint, Daibes Oil has failed to pay more than $359,000 for fuel purchases made in January. Citgo also alleges that in 2013, Fred Daibes signed a guaranty for the agreement, and that he has failed to comply with its terms.

Citgo also alleges that it provided branding materials on the condition that Citgo would be reimbursed if the service stations debranded within a 60-month amortization period, and that Daibes Oil failed to reimburse Citgo under the contract. Citgo also alleges trademark infringement, claiming that Daibes Oil has sold non-branded motor fuel under Citgo’s name.

Citgo is seeking damages, interest, attorney’s fees and costs.

Gregory D. Jordan is an Austin business attorney and business litigation lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

David Yurman Enterprises filed the lawsuit against Sam’s Club on September 4 in the Southern District of Texas, Houston Division.

According to the complaint, Yurman sells its jewelry at boutiques located across the United States and through authorized retailers. Yurman claims that its jewelry is well-known by consumers and the industry for its quality and uniqueness of design.

The complaint alleges that Sam’s Club recently began selling Yurman’s jewelry at discounted prices in stores located in Harris, Fort Bend and Montgomery counties. However, Yurman claims that Sam’s Club was not approved to carry the jewelry and is not an authorized retailer. Yurman claims that the conduct by Sam’s Club has caused confusion and disappointment among consumers by creating the false impression that the warehouse club is an authorized retailer. According to the lawsuit, unlike authorized retailers, Sam’s Club is not able to offer certain services to consumers.

The lawsuit states that Sam’s Club is making prominent use of the Yurman trademark, packaging and placards, including a purported Yurman certificate of authenticity.

The lawsuit alleges false designation, trademark infringement, tortious interference with contract and unfair competition. Yurman seeks a court order prohibiting Sam’s Club from using Yurman’s trademark, and from acquiring and reselling its jewelry. The lawsuit also seeks unspecified damages, attorney’s fees, costs and other relief.

Gregory D. Jordan is an Austin business attorney and business litigation lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

State attorneys and federal prosecutors have demanded that Chesapeake produce documents, give testimony and provide information relating to the alleged underpayments. Separately, the company has revealed that it has been subpoenaed regarding possible violations of anti-trust laws. In Michigan and Pennsylvania, Chesapeake faces racketeering charges.

The federal and state investigations come as Chesapeake continues to face a number of civil lawsuits from landowners. Dozens of landowners in Texas and Oklahoma have sued Chesapeake, claiming that the company used accounting tricks to avoid paying them the full royalty payments they were due for allowing Chesapeake to drill for oil and gas under their land. 

The lawsuits allege that Chesapeake engaged in sham transactions with affiliated companies in order to manipulate natural gas prices, calculated royalties based on below-market prices, and deducted post-production costs from royalty payments, even when lease agreements prohibited such deductions.

In Michigan, Chesapeake is facing a criminal anti-trust complaint over alleged collusion with Encana Corp. to rig bids for drilling leases in the Collingswood shale region of the state. Also in Michigan, the company faces racketeering charges for allegedly offering large bonuses to landowners in order to lock up mineral leases in the region, then backing out of the leases once the competition had been shut out.

Chesapeake is still recovering after the ouster of CEO Aubrey McClendon, who was the subject of a federal investigation over alleged financial misdeeds.

Gregory D. Jordan is an Austin business attorney and business litigation lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

If you’ve ever played Blackjack, you know that there are certain “rules” that you’re supposed to follow. If the dealer is showing a card on top of a 6 or less (we assume the dealer has a 10 underneath), because the dealer needs to “draw” a card until it has 17, it is likely that it will  go over 21 and “bust” i.e. the players will win.  So, the rules that players generally follow are : (a) don’t hit (take a card) if the dealer is showing a top card of 6 or under, (b) double down if you have a 10 or 11 and the dealer has something less than a 10 or face card on top, (c) always split aces, and (d) never split tens (it’s likely a winning hand).

The theory goes that if everyone at the table plays by “the rules” then the odds are better that the players will win.  If there’s a player at the table that is doing abnormal things, like splitting tens, or hitting (taking a card) when the dealer is showing 6 or lower, then that player will mess up the odds at the table, and the table will lose more often.  Heaven forbid you have 2 players like that, and the table can kiss its chips goodbye at warp speed.

How does Blackjack have anything to do with aircraft transactions?  Simple. In an aircraft transaction, you typically have the following players at the table: (i) buyer, (ii) buyer’s broker, (iii) buyer’s counsel, (iv) seller, (v) seller’s broker, (vi) seller’s counsel and (vii) the aircraft.  Interestingly, a blackjack table holds 6 to 8 players, but that would be too easy.  The issue is that if any of the 6 aircraft “players” are inexperienced or behave oddly, then the transaction takes on less than normal process, with much time and energy being devoted to education, discussion and posturing.  This can add significant time and expense to an aircraft transaction.

So if you or one of your teammates is thinking about “splitting tens,” and the other players are telling you not to (or looking at you funny) then maybe it’s time to admit that you need help from an experienced player, or perhaps leave the table until you do.  Otherwise, your chips will be gone, and so will the deal that you desperately wanted to close.

Alicia Thornhill filed the lawsuit October 9 in the Houston Division of the Southern District of Texas. She claims that her employer prevented her from advancing during her eight years of employment, despite less-qualified male employees being promoted to higher positions.

Thornhill claims in the lawsuit that she was hired in May 2005 and is the only woman working in the company’s IT server department. She claims that male employees who were unqualified and inexperienced or who had committed work infractions were promoted ahead of her, even though she had a positive work history.

Thornhill also claims that she has been repeatedly denied the opportunity to receive training that would allow her to advance in her employment. According to the lawsuit, the company granted requests by male employees in the IT department to receive training in various locations across the country, but Thornhill’s requests were not approved or denied outright.

The lawsuit also alleges that Thornhill was held to a different standard of discipline than her male colleagues, who were spared the discipline expected of her.

Thornhill has requested a jury trial.

Gregory D. Jordan is an employment lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

The lawsuit was filed on September 9 against Clean Harbors Industrial Services, Signature Industrial Services, Brock Services, American Guarantee and Liability Insurance Co., Zurich American Insurance Co., and Lexington Insurance Co., in Jefferson County District Court.

According to the complaint, a fire started in the refinery on April 17, 2013, after an attempt to service a unit that removes sulfur from hydrocarbon feeds. The suit states that ExxonMobil hired Clean Harbors to clean the exchangers and remove all hydrocarbons from the system, then hired Signature to remove bolts from the system after the cleaning.

The lawsuit states that Clean Harbors declared the clean to be complete, but approximately 30-60 gallons of hydrocarbon were still present in the system. The hydrocarbon was released from the channel head flange when Signature removed bolts from the unit. The suit alleges that Signature used a cutting wrench rather than an impact wrench, and the flame from the torch ignited the hydrocarbons, causing the fire.

ExxonMobil said that employees of Brock Services were injured in the fire, and ExxonMobil was forced to pay them workers’ compensation benefits. Lawsuits have also been filed against ExxonMobil by injured workers. According to the Beaumont Fire Department, 12 workers were injured in the fire, with three of them sustaining severe burns.

In its suit, ExxonMobil alleges breach of contract and negligence, and it seeks actual damages plus 18 percent interest, declaratory relief, attorneys’ fees and other relief.

Gregory D. Jordan is an Austin Oil and Gas lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

The plaintiffs in the lawsuit were employees of F&M Bank, based in Tulsa, Oklahoma. As part of a merger between F&M Bank and Texas-based Prosperity Bank, Prosperity offered the employees new employment agreements that included non-compete agreements.

After the April 2014 merger, some employees were dissatisfied with their new positions and filed suit in Oklahoma state court, seeking a declaration that the non-compete agreements were not enforceable. Prosperity filed an action in Texas state court, seeking a declaration that the non-compete agreements were enforceable. The cases were removed to federal court and consolidated in the Southern District of Texas.

After the employees resigned their positions with Prosperity and began working at CrossFirst Bank in Tulsa, dueling choice-of-law motions were filed by the parties. Although the case was in federal court in Texas, concerning a Texas employer, and the non-compete agreements had a Texas choice-of-law provision, the court ruled that Oklahoma law applied, as the employees lived and worked in Oklahoma.

Oklahoma law is far more restrictive of non-compete agreements than Texas law, and the court entered summary judgment for the plaintiffs, holding that the non-compete agreements were not enforceable.

Gregory D. Jordan is an Austin business attorney and business litigation lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

In the Eagle Ford Shale in Texas, Anadarko owned leases for mineral interests beneath the Chaparral Wildlife Management Area. The lease required Anadarko to use offsite drilling locations when prudent and feasible. Lightning owns adjacent mineral leases, and Briscoe Ranch, Inc. owns the surface above Lightning’s leases. Anadarko entered into an agreement with Briscoe to establish drill sites on Briscoe’s land, drill through – but not produce from – Lightning’s leases, and drill from Anadarko’s own lease.

Lightning sought an injunction, claiming that its own mineral interests could be harmed by Anadarko’s proposed drilling activity. Lightning argued that drilling fluid could seep into Lightning’s mineral interests if Anadarko failed to case its wells properly. In that case, Lightning would be forced to drill extra offset wells in order to prevent drainage occurring from Anadarko’s wells.

The trial court denied the injunction, and the appellate court affirmed, stating that Lightning had failed to show an imminent and irreparable harm that would result from the drilling activity.

Gregory D. Jordan is an Oil and Gas lawyer in Austin. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Christine Peden and Jeanne Martinez, employees of the City’s Animal Care Services, discovered they were being paid less than male coworkers with the same job title of operations managers. They filed a federal lawsuit, which was joined by Brenda Werts, then an employee of the Capital Improvements Management Services department. The lawsuit alleges violation of the federal Equal Pay Act and pay discrimination. Martinez and Peden also accuse the city of retaliating against them after they raised their concerns about pay.

The women’s arguments were recently supported by the Equal Employment Opportunity Commission (EEOC), the federal agency that investigates employment discrimination, which found that the City had indeed discriminated against them. The EEOC also found that the City’s use of “counseling letters” to respond to the women’s concerns about their pay constituted a violation of the Equal Pay Act. The EEOC is now attempting to facilitate a settlement between the City and the women through a “conciliation” process.

The federal lawsuit is proceeding separately. According to the women’s attorney, the lawsuit is in the discovery process, and mediation efforts have been unsuccessful thus far.

According to the National Women’s Law Center, Texas’ gender wage disparity is comparable to the national pay gap between women and men. On average in the U.S. and in Texas, women earn $0.79 for every $1.00 men earn.

The Equal Pay Act provides that women and men in the same workplace, who work substantially equal jobs, be given equal pay. The Act applies to all types of pay, including salary, wages, bonuses and vacation pay. Employers are not permitted to reduce the pay of either sex to correct a wage disparity.

Gregory D. Jordan is an employment lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Robert Green filed the lawsuit in U.S. District Court for the Southern District of Texas, Houston Division.

In the lawsuit, Green says that he is an African-American male who was employed as a fourth grade teacher in the school district. He claims he was told in April 2013 that his contract would not be renewed due to poor job performance. Green states that he was not informed of any issues regarding his job performance beforehand.

Green alleges that in March 2013, a new principal, Toren Woolridge, was hired. Green claims that Woolridge criticized his job performance and accused him of threatening Woolridge, but that Woolridge actually threatened him. Green said he filed claims with the Texas Workforce Commission Civil Rights Division and the Equal Employment Opportunity Commission reporting the incident.

According to further claims in the lawsuit, Green was not given an opportunity to correct any alleged deficiencies in his job performance before his employment was terminated.

Green alleges race discrimination, breach of contract and retaliation. He is seeking an unspecified amount of damages for lost pay, earning potential and benefits.

Gregory D. Jordan is an employment lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Cleveland McGuire filed the lawsuit against Mundy Companies Inc. in U.S. District Court for the Southern District of Texas, Houston Division.

McGuire says in the lawsuit that he is an African-American male who worked as a general foreman in charge of maintenance operations at Mundy’s plant. He claims that he was the only black male supervisor at the plant.

According to the lawsuit, on October 9, 2013, a white female worker became upset over a workplace incident involving a black worker and began shouting racial slurs directed toward McGuire. McGuire claims that he reported the incident to a Mundy superintendent and shift leader, but no action was taken. McGuire states that after he reported the incident, the white female worker made false claims of sexual harassment against him.

McGuire claims that he was wrongfully terminated on October 21, 2013. A white man was hired to fill his position. According to the lawsuit, after McGuire complained to the company, Mundy rehired him in a lower-paying position. However, on November 18, 2013, McGuire filed an Equal Opportunity Commission complaint based on the previous incident. He claims that his employment was then terminated for a second time in retaliation on December 16, 2013.

McGuire claims race discrimination, retaliation and age discrimination. He is seeking compensatory and punitive damages for lost earnings, lost wages and mental pain and suffering. He has requested a jury trial.

Gregory D. Jordan is an employment lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Chrisian Groenke, the sole shareholder of Strategic Global Investment Capital, Inc., claims that Burger King interfered with Groenke’s contract to sell his shares of German Burger King outlets to a joint venture that already owned 91 other outlets. Groenke claims that he attempted to exit the market after many of Burger King Europe’s own restaurants became insolvent.

The complaint alleges that Burger King Europe suggested that Groenke sell to the joint venture that was the largest Burger King franchisee in Europe, but that the company then interfered with the contract. After Groenke entered into a contract to sell his interests in the Burger King market in Europe, the company took the position that the sale could not proceed.

According to the lawsuit, the company “implicitly threatened” to terminate Goenke’s franchise agreements if he proceeded with the sale.

Burger King Europe has also filed suit against Groenke in Texas federal court, claiming that he owes more than $650,000 in franchise fees.

Groenke’s lawsuit accuses the company of tortious interference with an existing contract and tortious interference with a prospective contract, and it seeks a declaration from the court interpreting the franchise agreements for the restaurants Groenke owned.

Gregory D. Jordan is an Austin business attorney and business litigation lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Bob French has filed the federal discrimination lawsuit against KBTX in College Station and Bryan. He has also claimed retaliation, harassment and violations of the Federal Family and Medical Leave Act.

French alleges that during the 2012 holidays, he was forced to work additional hours while younger staff members were given time off. He claims that the overwork led him to seek medical treatment for exhaustion and depression in 2013 under the Family and Medical Leave Act. 

According to the lawsuit, KBTX advertised an open meteorologist position during the time that French was on protected medical leave. French claims that when he returned to work, he was reprimanded and soon replaced by a meteorologist who was under 40 years of age and did not have a disability.

According to the lawsuit, French had worked for the station for 23 years, and his employment was governed by a written contract that stated that he could not be fired without cause. French said that none of the reasons given for his firing constituted proper cause.

French previously filed charges with the Equal Employment Opportunity Commission and the Texas Workforce Commission, alleging discrimination and retaliation. The EEOC completed an investigation in May, clearing the way for the lawsuit to be filed.

Gregory D. Jordan is an employment lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

According to the lawsuit, Pickens won a previous case against Gannon and its principal, William Franke, over two unpaid promissory notes amounting to $4.1 million. The current lawsuit accuses Franke of improperly transferring portions of the company to his wife through other entities, in what the suits claims was an attempt to avoid paying the debt.

The lawsuit alleges violations of the Uniform Fraudulent Transfers Act, conspiracy and tortious interference with contract.

The lawsuit claims that the original promissory notes were issued by PlainsCapital Bank to Gannon Joint Venture LP, and that Pickens purchased the loan in 2013. After a repayment dispute, Pickens won a lawsuit against Gannon.

According to the current suit, six months after the ruling in Pickens’ favor, Franke transferred his interest in Gannon to his wife in an attempt to avoid his legal obligations. The lawsuit also claims that Franke and the company used the corporate structure improperly, failing to document transactions or keep independent records. Furthermore, Franke and Gannon allegedly used one another’s bank accounts and funds as their own.

The lawsuit seeks compensatory and exemplary damages, attorney’s fees and an injunction preventing further transfers of assets.

Gregory D. Jordan is an Austin Oil and Gas attorney. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Applicable Hazardous Materials Regulations are complex and require the proper marking, labeling, and packing of hazardous materials in addition to proper training of employees that ship hazardous materials and recordkeeping.

Violations and civil penalties are common, largely due to the fact that many companies are unaware that they are improperly shipping hazardous materials and are subject to the FAA’s jurisdiction for doing so. To make matters worse, because many of these companies do not understand the FAA enforcement process, they unwittingly aid the FAA in making its case against them.

Typically, a company finds out that it has violated HMR by receiving a telephone call or letter from the FAA seeking information about the shipment. At this point, unaware that the information they provide will likely be used against them in the FAA’s subsequent enforcement action, the company provides an explanation or written statement that often indicates that they have likely violated additional regulations. Believing that their cooperation in the matter has resolved the issue and absolved them of any wrongdoing, the company is often shocked to later receive a Notice of Proposed Civil Penalty (NPCP) for its violations of HMR. Given that penalties for violations of HMR may range from $10,000 – $50,000 per violation, just one improper shipment could lead to a penalty in excess of $100,000.

Very often, companies often do not appreciate the adversarial nature of this process, which is why they seldom benefit from admitting to violations of HMR or dealing directly with the FAA. Instead, it is advisable to discuss the issue with counsel experienced with enforcement proceedings relating to HMR prior to submitting any response to the FAA’s request for information.

Kimberly L. Cox filed the lawsuit in federal court in Texas on August 4, citing civil rights violations, after her employment was terminated following a work injury. Patrick R. Donahoe, as Postmaster General, is also named as a defendant.

According to the lawsuit, Cox worked as a letter carrier for the Kilgore Post Office. She claims that in July and August of 2012, she reported to Postmaster McQuiston alleged instances of discrimination against white employees by a black supervisor, but McQuiston took no action.

Cox also claims that on August 21, 2012, she sustained on-the-job injuries after tripping on a curb. Cox claims that she had three days of sick leave, but was then told to report to work and was made to sit in a room for eight hours per day. 

According to the complaint, Cox was scheduled to be off work on August 30, 2012, and she attended an estate sale, where McQuiston observed her and subsequently asked the Office of the Inspector General to investigate whether Cox exceeded her medical restrictions. On August 31, 2012, Cox claims that McQuiston placed her on emergency leave. She claims that her employment was terminated in November 2012.

The lawsuit alleges gender and race discrimination and retaliation. The lawsuit was filed in U.S. District Court for the Eastern District of Texas, Marshall Division. Cox seeks damages and attorney’s fees.

Gregory D. Jordan is an employment lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

The case revolves around partnership status between companies. The courts who have tried it already have had to decide whether conduct that may have indicated a partnership (to build a pipeline) trumps a written agreement that allegedly precluded a partnership.

Energy Transfer Partners (ETP) alleged that it formed a legal partnership with Enterprise Product Partners in 2011 to jointly build an oil and gas pipeline. Enterprise then allegedly broke off the partnership to pursue similar plans with Enbridge Inc. 

ETP sued Enterprise and Enbridge, alleging tortious interference. ETP also alleged breach of contract and breach of fiduciary duties against Enterprise. Enterprise denied the allegations and argued that no partnership had been formed; the companies had not received approval from their boards for any joint venture.

A jury issued its $319 million verdict against Enterprise after a five-week trial and less than two days of deliberations. The jury rejected the claim of tortious interference against Enbridge.

An attorney representing Enterprise said that the company will move for a new trial, and that if the motion is not granted, Enterprise will appeal.

Observers said that the appeal is expected to be expensive for both sides because of the number of legal issues under consideration. The final ruling will most likely establish whether companies have a “safe zone” to explore business opportunities without inadvertently entering into a partnership or other legal commitment. 

With so much at stake, an attorney for Enbridge said he expects the case to reach the Texas Supreme Court.

Gregory D. Jordan is an Austin Oil and Gas lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Miguel Cortes filed the lawsuit against Brand Energy Solutions on July 28.

Cortes, who is over age 60, said that his supervisor at a Deer Park job site began harassing and humiliating him because of his age. Cortes claims that the supervisor made comments regarding Cortes’ age, and that he demanded that Cortes work faster than younger employees and perform tasks that were outside of his job description.

In the lawsuit, Cortes claims that he scheduled a meeting with the supervisor and the plant manager to discuss the issue, but the plant manager threatened both men with termination if they were not able to resolve the issue themselves.

According to the complaint, the supervisor’s behavior continued shortly after the meeting, and Cortes was told that he was being transferred to another shift and replaced by a younger worker. After contesting the transfer, Cortes claims that he was discharged or constructively discharged from employment.

The lawsuit accuses the employer of age discrimination and retaliation under the Texas Commission on Human Rights Act. Cortes claims he lost wages and benefits and suffered mental anguish and emotional distress. He is seeking actual, liquidated and exemplary damages as well as other relief.

Gregory D. Jordan is an employment lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

The Arlington City Council approved the settlement August 19 by a vote of 8-0, with Mayor Robert Cluck absent while recovering from surgery. The deal was reached between the city, Chesapeake and Total E&P USA, a French company that owns a 25 percent share of Chesapeake’s holdings in the Barnett Shale.

The lawsuit had accused Chesapeake of improperly deducting post-production costs from royalties paid to the city and of basing payments on gas prices below the actual sales price. 

Chesapeake holds leases on approximately 1,900 acres of public property.

The settlement agreement provides that in the future, the royalty rate paid to the city will be based either on the highest sales price received by Chesapeake or on a price established by a formula. Also, post-production costs will no longer be subtracted from royalty payments.

Attorneys for the city initially said they thought damages would exceed $1 million, but the city settled for a lower payment. City Attorney Jay Doegey said that the settlement was fair and that it clarified the methodology for calculating royalties.

Chesapeake did not admit fault in the settlement, and it maintained, in court documents, that Texas law permits the deduction of post-production costs.

The settlement covers 25 separate leases of varying size. 

Chesapeake still faces numerous additional lawsuits filed by other property owners alleging underpayment of royalties. The Arlington school district, which joined the city’s lawsuit, is still negotiating with Chesapeake regarding its claims.

The lawsuit by the city of Arlington made claims similar to those made in other lawsuits against Chesapeake: that in addition to improperly deducting post-production costs from royalty payments, the company used a system of “sham transactions,” such as selling gas to its own affiliates, in order to calculate royalties based on a price lower than the actual sales price.

Gregory D. Jordan is an Oil and Gas lawyer in Austin. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

One trap to be wary of is that if there is a pending request for a number change, the FAA will not process a transfer (or bill of sale) for the aircraft.  So, the request needs to be withdrawn.  This is why we suggest that requests for number changes in connection with a purchase/sale only be made at closing.  So, don’t be anxious to make that request until you’ve spoken with an aviation professional, or you will be sorely disappointed at closing.

Let’s take an example.  In this example, Buyer owns an aircraft and is buying a second aircraft (we’ll call it New Aircraft even though it is pre-owned).  Eventually, the old aircraft will be sold.  Buyer likes the number on Old Aircraft (N12OA) and wants to put it on New Aircraft (N56NA).  Here’s the process:

1.  Reserve a number for assignment to Old Aircraft.  We’ll use N12OB.  Usually, you like it to be a number that will not require too much painting over the old number.  Here, only 1 letter would need to be painted over.  It takes about 1 to 2 weeks for the reservation to appear in the system.

2. Request that the FAA assign Special Registration Number N12OB to Old Aircraft to replace N12OA.

3.  As number changes are not a priority item for FAA, approximately 4 to 6 weeks after the request, the FAA will issue FAA Form 8050-64 authorizing that the number on Old Aircraft can be changed to N12OB.  This authorization is valid for a year.

4.  Once the new number has been ‘placed’ on Old Aircraft (usually a sticker or painted), Form 8050-64 should be signed and the original filed with FAA.  The copy of the signed and dated form is stapled to the existing registration card and then you can legally operate under the new number N12OB.  There are some other things to do as well, like re-strap the transponders and obtain a replacement CofA with the new number, and change numbers on documentation, but that’s beyond the scope of this explanation.

5.  When the 8050-64 form is filed with FAA, you’ll want to be sure that the aviation professional that files the form reserves the old number N12OA back to the owner of Old Aircraft (which we are assuming here will be the owner of New Aircraft).  The reservation of the old number back to the owner of Old Aircraft will be reflected in the FAA system in about 2 weeks. Yes, 2 weeks.

6.  When the FAA system shows that N12OA has been reserved back to the owner, it’s time to make the second request.  Either at the closing on the acquisition of New Aircraft or thereafter (it depends upon whether the reservation of N12OA has been completed before or after acquisition of New Aircraft), have your aviation professional submit a request to FAA to change the number on New Aircraft from N56NA to N12OA.

7.    Approximately 4 to 6 weeks after the request, the FAA will issue FAA Form 8050-64 authorizing that the number on New Aircraft can be changed from N56NA to N12OA.  This authorization is valid for a year.

8.  Once the new number has been ‘placed’ on New Aircraft (usually a sticker or painted), Form 8050-64 should be signed and the original filed with FAA.  The copy of the signed and dated form is stapled to the existing registration card and then you can legally operate under the new number N12OA.  Of course, if you want to keep N56NA, you’ll need to request that the FAA reserve it back to owner.

How many weeks did you count before the final number was able to be placed on New Aircraft?  If we were ambitious, 1 week to reserve a number for Old Aircraft, 4 weeks for the 8050-64 form authorizing change from N12OA to N12 OB to be issued, 1 week for N12OA to be reserved back to owner, 4 weeks for the 8050-64 form authorizing change from N56NA to N12OA.  Total:  10 weeks.

So when you hear “let’s change the number,” it’s a little more complicated than that.

Regards. SHL.

For their part, oil and gas producers usually claim they are following the terms of their leases. However, many producers have agreed to higher payments in response to demands or lawsuits by lessors.

The current wave of lawsuits and other disputes may owe its origin in some part to one Texan who made a mission of uncovering alleged fraud in oil and gas royalty payments. In 1996, Harrold Eugene Wright filed lawsuits against some of the largest oil companies in the United States, claiming contract fraud. He battled the producers until his death in 2008.

Elizabeth Ann Wright, Harrold Wright’s stepdaughter, told Thomson Reuters that the man began his career as a “wildcatter,” prospecting for oil by digging wells in untested areas.  

Wright testified numerous times in Washington before the Senate Finance Committee; at one session, he claimed to have overheard an oil executive say that lessors were often unaware of what royalties they were owed, and that companies could pay whatever amount would satisfy them.

According to his stepdaughter, Wright took what he heard to heart. ExxonMobil had wells on land that Wright owned, and with his industry experience he was able to roughly calculate the royalties he was owed. He asked ExxonMobil for more money and was sent a check for $25,000. According to his stepdaughter, he then asked for more money and received another check. Wright was not placated but outraged at the scale of what he considered to be fraud.

In 1996, Wright sued over a dozen large oil and gas companies on behalf of the U.S. government under the Federal False Claims Act, which allows citizens to file such fraud actions and share in the recovery. Wright’s lawsuits alleged that producers were underpaying royalties to the government from wells on federal and tribal land. Several of the suits were settled for tens of millions of dollars.

Today, lessors who are considering filing underpayment disputes may wish to thank Wright for some of his pioneering efforts in this area.

Gregory D. Jordan is an Oil and Gas lawyer in Austin. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

The lawsuit claims that when a Fluor subsidiary agreed to help the oil giant clean up pollution in the Gulf of Mexico in 2010, BP agreed to protect it against legal expenses. Now, several lawsuits and claims related to the Deepwater Horizon spill have been filed against Plant Performance Services (at that time, Fluor’s logistics and personnel support subsidiary), but BP has refused to compensate the company for its legal expenses, according to the lawsuit.

Plant Performance Services was sold to Fuel Streamers Group in June 2011.

Many of the lawsuits against Plant Performance Services were filed by beach cleanup workers who said that they were exposed to hazardous materials and that the company misrepresented how long the work was expected to last. Fluor claims the contract with BP began on May 5, 2010, but beach cleanup work was canceled before workers expected to be let go.

In the lawsuit, Fluor claimed that it has already paid $2.1 million in claims and is seeking compensation from BP for past, present and future claims.

BP has spent over $14 billion on the Gulf Coast cleanup and is expected to face $18 billion in fines.

Gregory D. Jordan is an Austin Oil and Gas attorney. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

The named plaintiffs in the claim under Washington state law, however, did not opt in and filed objections. The court denied their objections, along with a motion for reconsideration, holding that the plaintiffs lacked standing because they were not opt-in members of the collectives. The court also held that even if the plaintiffs had standing, they had not shown that the settlement was substantively unreasonable or unfair. 

The court noted that potentially valuable legal rights were given up in the settlement, and that plaintiffs were entitled to accept a certain sum in exchange for the sacrifice of uncertain potential future recovery. The court, therefore, granted the settlement final approval.

Gregory D. Jordan is an employment lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Gaspar Salas filed the lawsuit in the Southern District of Texas on June 12.

The lawsuit claims that Salas was hired July 11, 2011 to work as a machinist for GE Oil & Gas. According to the complaint, Salas’ supervisor used derogatory language to criticize his Mexican nationality and his intelligence. The complaint alleges that Salas and other Hispanic employees were disciplined for conduct that other, non-Hispanic workers also engaged in but were not disciplined for.

According to Salas, he reported his supervisor’s behavior to human resources and a manager on eight occasions. He claims that the abuse from his supervisor increased in retaliation for the reports. Salas claims that his supervisor cut his hours and told other employees to find a reason for Salas to be fired.

The lawsuit accuses GE Oil & Gas of discrimination, race discrimination and retaliation — in violation of Title VII of the Civil Rights Act of 1964. The lawsuit seeks a court order enjoining the defendant from unlawful employment practices. In addition, the complaint demands a jury trial and asks for actual, exemplary and treble damages within the court’s jurisdictional limit, attorney’s fees, costs and other relief that the court may deem just.

Gregory D. Jordan is an Austin Oil and Gas lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

C&D filed the lawsuit against TGW Systems Inc., claiming breach of contract. According to the lawsuit, the two companies entered into a contract calling for C&D to receive a five percent commission on services that TGW provided in the tire industry — including engineering, equipment and installation services.

C&D claims that since the agreement was made in May 2008, TGW has entered into significant business in the tire industry (including a $20 million contract with Goodyear) but has not paid C&D any commissions.

C&D alleges that it sent TGW an invoice in the amount of $715,589 for unpaid commissions, but TGW did not respond. C&D claims that the defendant’s lack of response to the invoice constitutes breach of contract.

C&D Skilled Robotics designs and builds robotic material handling systems for the tire and rubber, food and beverage, pharmaceutical, textile and paper industries. The company has locations in Beaumont, Texas and Schio, Italy.

TGW is a provider of automated material handling equipment and storage systems, headquartered in Spring Lake, Michigan.

The lawsuit seeks at least $715,589 in damages, plus costs.

Gregory D. Jordan is a business lawyer and business litigation attorney in Austin, TX. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Facebook recently purchased Oculus for $2 billion.

In its lawsuit, ZeniMax claims that it directed the development of the Rift software and designed its specifications and functionality. The suit alleges that John Carmack and other ZeniMax employees provided Oculus with confidential programming code and technical expertise that transformed the Rift prototype and made it a commercially viable virtual reality headset. 

ZeniMax is the parent company of Id Software, which Carmack cofounded.

Allegedly, Carmack first encountered the Rift prototype in April 2012, in a “primitive” form that was “little more than a display panel.” The suit argues that Oculus founder Palmer Luckey had not developed a viable display and did not have the technical expertise to do so. The lawsuit further alleges that Carmack and other ZeniMax employees made improvements to prevent distortions and reduce latency of the display’s reaction to movement.

Additionally, the plaintiff claims that ZeniMax employees worked on the Oculus Rift project under a nondisclosure agreement, but that talks broke down on the terms of a formal working relationship. Allegedly, Oculus offered to sell ZeniMax a three percent stake in the company for $1.2 million, but ZeniMax maintained that it should have a much larger equity stake. According to the lawsuit, an agreement was never reached, and Oculus never provided ZeniMax with any compensation. The lawsuit notes that John Carmack left ZeniMax to join Oculus as Chief Technology Officer in August 2013. Five other ZeniMax employees left for Oculus as well.

ZeniMax is seeking an unspecified amount in damages for misappropriation of trade secrets, breach of contract, copyright infringement, unjust enrichment, unfair competition, trademark infringement and false designation.

Gregory D. Jordan is a business lawyer and business litigation attorney in Austin, TX. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

According to court documents, crane operators and support personnel worked 50 to 100 hours per week and were shorted overtime pay.

The case concerns and contests overtime pay exemptions under the Motor Vehicle Carriers Act. Under that law, certain employees, including drivers, mechanics and loaders, are exempt from receiving overtime pay. If the act applies, Warrior treated its employees lawfully. However, the plaintiffs assert that they qualified for overtime under the Technical Corrections Act of 2008, because they use vehicles weighing less than 10,000 pounds on private property to service wells.

According to the plaintiffs, jobs typically lasted for only two or three days. In addition to operating the vehicles, the workers tested equipment and swept and cleaned the shops. Some employees were switched from salary to hourly in November 2012, according to court documents.

The other lawsuit was originally filed in the Southwestern District of North Dakota by 64 employees who also claimed overtime violations. That suit has been transferred to Victoria, Texas, and the plaintiffs have asked the court to consolidate them.

Gregory D. Jordan is an employment lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

The lawsuit was filed in the U.S. District Court for the Southern District of Texas (Houston Division), claiming violation of the Family and Medical Leave Act (FMLA). In addition to Shell Oil Co., Shell Exploration & Production Co. was also named as a defendant.

According to the complaint, Ryder began working for Shell in June 2008. In August 2011, she signed a contract agreeing to remain employed with the company through July 31, 2013 in exchange for a retention payment of $60,300. Ryder learned she was pregnant in the spring of 2013.

Ryder claims she informed Shell of her pregnancy and stated that morning sickness had caused her to miss four days of work in May 2013. Ryder claims she was asked to submit leave paperwork under the FMLA and did so on June 27, 2013, but she inadvertently omitted the time period for which leave was requested. According to the lawsuit, her employment was terminated on July 8, 2013, and Shell declined to pay the retention bonus, asserting that Ryder did not remain employed until July 31.

Ryder is seeking the amount due under the retention agreement, back pay and front pay.

Gregory D. Jordan is an Oil and Gas lawyer in Austin. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Collective action certification has been sought under the Fair Labor Standards Act (FLSA) for the lawsuit on behalf of about 125 workers currently or formerly employed by a number of defendants. It is possible that the collective action could be expanded.

Wessam “Sammie” Aldeeb, the defendant franchisee, asserts that he has not underpaid employees and that his success depends on keeping his employees happy. Aldeeb operates at least eight franchise locations in San Antonio and Boerne, according to the lawsuit. The franchisers were not named in the suit.

An attorney for the plaintiffs has asserted that wage and hour violations are common in the restaurant industry. One of the plaintiffs has claimed that she worked many overtime hours for which she was not paid. Another attorney for the plaintiffs has argued that it is unfair and illegal competition for some businesses to keep labor costs down by violating the FLSA, earning profits at the expense of law-abiding competitors and of their own employees.

The lawsuit seeks certification as a collective action under the FLSA. Such collective actions share some characteristics with class action lawsuits, with notable differences. If employees are “similarly situated” to the plaintiffs in the lawsuit by being subject to a common policy or design, then they may “opt in” to the lawsuit. Employees who do not opt in may maintain the right to file a subsequent private action.

Gregory D. Jordan is an employment lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

SHL.

The lawsuit was filed by Adriana Alcantara in the Houston Division of the Southern District of Texas February 25, naming the University of Houston as defendant and alleging employment discrimination.

The lawsuit alleges that Alcantara was harassed by an assistant professor, Dr. Leigh Leasure, while she was employed as a professor at the university, beginning in September 2007. Alcantara taught phycology, the study of algae.

According to the suit, Leasure yelled at Alcantara, prevented her from using essential lab equipment, and interfered with her experiments and recruitment of students.

The suit also claims that Leasure was a participant in Alcantara’s tenure evaluation, and that Alcantara was denied tenure on May 29, 2012. Alcantara alleges that she was denied tenure because she is a Hispanic female.

Federal law and Texas law prohibit employment discrimination based on race or gender.

The lawsuit seeks back pay and benefits, damages, attorney’s fees, interest and court costs. The case is Houston Division Court Case No. 4:14-cv-00463.

The University of Houston is a state research university with nearly 41,000 students and more than 3,000 academic staff members.

Gregory D. Jordan is an employment lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

The lawsuits were filed by Crossroads Systems Inc. against Cisco, NetApp Inc. and Quantum Corp. in U.S. District Court for the Western District of Texas, alleging infringement of U.S. Patents 6,425,035 and 7,934,041, part of Crossroads’ 972 Patent Family.

Crossroads has licensed the patent family to more than 40 different companies since 2001, receiving more than $60 million in revenue from licenses and settlements.

The lawsuits allege that the defendant companies have incorporated technology patented by Crossroads into their data-storage systems, including storage arrays and series switches.

Crossroads said that its technology is fundamental to efficient and secure access to network data-storage systems. The company said that it always seeks to avoid litigation, but that it has a responsibility to its shareholders to pursue legal action when companies engage in unlicensed use of its patented technology.

The lawsuit is seeking injunctive relief and monetary damages. Crossroads is based in Austin and employs about 60 people. The company is led by CEO Richard K. Coleman Jr.

Crossroads also filed patent-infringement lawsuits of a similar nature against Dell Inc. and other companies in November 2013.

Gregory D. Jordan is an Austin business attorney and business litigation lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Adriana Alcantara filed the lawsuit in the Houston Division of the Southern District of Texas on February 25, naming the University of Houston as defendant and alleging employment discrimination.

The lawsuit argues that Alcantara was harassed by an assistant professor, Dr. Leigh Leasure, while she was employed as a professor at the university, beginning in September 2007. Alcantara taught phycology, the study of algae.

According to the suit, Leasure yelled at Alcantara, prevented her from using essential lab equipment, and interfered with her experiments and recruitment of students.

The suit also claims that Leasure was a participant in Alcantara’s tenure evaluation, and that Alcantara was denied tenure on May 29, 2012. Alcantara alleges that she was denied tenure because she is a Hispanic female.

Federal law and Texas law prohibit employment discrimination based on race or gender.

The lawsuit seeks back pay and benefits, damages, attorney’s fees, interest and court costs. The case is Houston Division Court Case No. 4:14-cv-00463.

The University of Houston is a state research university with nearly 41,000 students and over 3,000 academic staff members.

Gregory D. Jordan is an employment lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

The lawsuits were filed by Crossroads Systems Inc. against Cisco, NetApp Inc. and Quantum Corp. in U.S. District Court for the Western District of Texas, alleging infringement of U.S. Patents 6,425,035 and 7,934,041, which are part of Crossroads’ 972 Patent Family.

Crossroads has licensed the patent family to over 40 different companies since 2001, receiving more than $60 million in revenue from licenses and settlements.

The lawsuits allege that the defendant companies have incorporated technology patented by Crossroads into their data storage systems, including storage arrays and series switches, illegally.

Crossroads said that its technology is fundamental to efficient and secure access to network data storage systems. The company stated that it always seeks to avoid litigation, but that it has a responsibility to its shareholders to pursue legal action when companies engage in unlicensed use of its patented technology.

The lawsuit is seeking injunctive relief and monetary damages. Crossroads is based in Austin and employs about 60 people. The company is led by CEO Richard K. Coleman Jr.

Crossroads also filed patent infringement lawsuits of a similar nature against Dell Inc. and other companies in November 2013.

Gregory D. Jordan is an Austin business attorney and business litigation lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Brittania-U Nigeria Ltd. said that after its bids had been accepted by Chevron, Belema Oil Producing Ltd., Amni International Petroleum Development Co. Ltd., and principals of the companies told executives from Chevron that Brittania-U did not have the resources necessary to complete the deal. The lawsuit alleges that the companies’ actions caused Chevron to repudiate its contract with Brittania-U and sell the leases to Belema, Amni and Seplat Petroleum Development Co.

According to the lawsuit, Chevron’s cancellation of the deal with Brittania-U caused the company to lose the benefit of the contract and any future earnings from the exploration of the leases. In addition, the company claimed that its other business interests suffered due to the time spent pursuing the Chevron bidding process.

The lawsuit was filed approximately two months after a court in Nigeria issued an injunction preventing Chevron from selling the leases to the competing companies until a ruling had been issued regarding Brittania-U’s claim.

According to the suit, in June 2013, a two-stage bidding process was initiated by Chevron’s affiliate in Nigeria to sell the company’s participating interest of 40 percent in oil leases with reserves of 555 million barrels. Brittania-U’s bid of $1.6 billion won out over several other offers.

However, after Belema and Amni received rejection letters from Chevron, their officers organized a meeting in Houston with Chevron executives, where they made the false claim that Brittania-U would not be financially capable of following through with the deal, according to the lawsuit.

The complaint also alleges that the two companies spread false information to the international and Nigerian business media, attacking the credibility and financial health of Brittania-U.

Brittania-U’s bankers had stringent terms imposed on them by Chevron, but the two companies still agreed to a revised offer, and Brittania-U met the initial terms of the deal, the suit claims.

However, according to the complaint, the companies’ rivals then convinced Chevron to repudiate the contract completely, while negotiating the sale of the leases to themselves. Reportedly, the leases were sold to Belema, Amni and Seplat for $800 million.

The lawsuit alleges tortious interference, business disparagement and civil conspiracy, and the plaintiff seeks actual and exemplary damages.

Gregory D. Jordan is an Oil and Gas lawyer in Austin. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Brittania-U Nigeria Ltd. said that after its bids had been accepted by Chevron, Belema Oil Producing Ltd., Amni International Petroleum Development Co. Ltd. and principals of those companies told executives from Chevron that Brittania-U did not have the resources necessary to complete the deal. The lawsuit alleges that the companies’ actions caused Chevron to repudiate its contract with Brittania-U and sell the leases to Belema, Amni and Seplat Petroleum Development Co.

According to the lawsuit, Chevron’s cancellation of the deal with Brittania-U caused the company to lose the benefit of the contract and any future earnings from the exploration of the leases. In addition, the company claimed that its other business interests suffered due to the time spent pursuing the Chevron bidding process.

The lawsuit was filed approximately two months after a court in Nigeria issued an injunction preventing Chevron from selling the leases to the competing companies until a ruling had been issued regarding Brittania-U’s claim.

According to the suit, in June 2013, a two-stage bidding process was initiated by Chevron’s affiliate in Nigeria to sell the company’s participating interest of 40 percent in oil leases with reserves of 555 million barrels. Brittania-U’s bid of $1.6 billion won out over several other offers.

According to the lawsuit, after Belema and Amni received rejection letters from Chevron, their officers organized a meeting in Houston with Chevron executives, where they allegedly made the false claim that Brittania-U would not be financially capable of following through with the deal.

The complaint also alleges that the two companies spread false information to the international and Nigerian business media, attacking the credibility and financial health of Brittania-U.

The suit claims that Brittania-U’s bankers had stringent terms imposed on them by Chevron, but that the two companies still agreed to a revised offer. Brittania-U met the initial terms of that deal.

However, the companies’ rivals allegedly then convinced Chevron to repudiate the contract completely, while negotiating the sale of the leases to themselves. Reportedly, the leases were sold to Belema, Amni and Seplat for $800 million.

The lawsuit alleges business disparagement, civil conspiracy and tortious interference, in which a business intentionally damages the dealings and contracts of another. The plaintiff seeks actual and exemplary damages.

Gregory D. Jordan is an Oil and Gas lawyer in Austin. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

The royalty owners accuse Exxon of falsely informing them that the productivity of their wells was diminishing. This allegedly caused them to sell the oil and gas interests to a different buyer for less than their true value.

The dispute has been in litigation since 1996, having already reached the Texas Supreme Court in 2009 on different issues.

The royalty owners claim that they relied on false statements by Exxon about the value of the wells when they sold the leases to another company at a reduced rate. According to the royalty owners, Exxon claimed that the wells had only two years of production left, when in reality, they had 12. When the royalty owners refused to accept less than the 50 percent royalty rate they had previously received, Exxon canceled its leases. According to court records, the royalty owners later sold their interests to another party for a 30 percent royalty rate.

Exxon argues that because the royalty owners denied Exxon’s statements about the diminished productivity of the wells, the statements could not have influenced their later decision to sell to another company at a lower price.

The royalty owners argue that Exxon is raising new arguments at too late a stage in the litigation. Furthermore, they claim, the company is relying on evidence that was not originally presented to the trial court, including evidence supporting the argument that Exxon’s representations were only opinions — and therefore should not have been relied upon by the royalty owners.

Gregory D. Jordan is an Oil and Gas lawyer in Austin. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

During opening arguments of the antitrust lawsuit, MM Steel LP’s attorney said that the larger companies had organized a boycott that cut off MM Steel’s access to supplies, locking it out of the steel distribution market.

Matt Schultz and Mike Hume founded MM Steel after decades working for American Alloy Steel Inc. and for Reliance. Now, they claim that the two companies asked steel manufacturers JSW Steel (USA) Inc. and Nucor Corp. to refrain from doing business with them. That action stands in violation of federal antitrust statutes, MM Steel’s attorney argued.

MM Steel claims lost future profits as high as $80 million from the point when its supply of steel was cut off by the alleged boycott. The company is also seeking exemplary and treble damages under antitrust law.

An attorney for Reliance said the company had the right to refuse to do business with anyone associated with Schultz and Hume, who committed a “betrayal” by raiding key employees and clients from their former employers.

Attorneys for the defendants added that MM Steel’s failure was due in part to undercapitalization and the fact that it began operating at a time when steel supplies were low.

Gregory D. Jordan is an Austin business attorney and business litigation lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

In the lawsuit filed in Dallas County District Court, Trinity East claims that the city leased two tracts of land to the company and kept millions in bonus payments, but refused to issue zoning permits that would allow the company to drill on the land. The lawsuit claims that the denial of drilling rights is “arbitrary and capricious” and amounts to taking property with no “just compensation.”

The office of the Dallas city attorney had no immediate comment and said it was still reviewing the lawsuit. Advocates for more restrictive drilling rules in Dallas said that Trinity East was attempting to undermine the civic process and that the lawsuit had no merit.

The lawsuit stems from the August 2008 lease of mineral interests to Trinity East, which brought the city $19 million in bonus payments. On the same day the lease was signed, Mary Suhm, the city manager of Dallas, wrote in a letter that the city was “reasonably confident” that drilling rights would be granted for a tract of parkland, and that the city would use “reasonable efforts” to bring the matter to the city council, which would make the decision on permits.

According to Trinity East, the company would not have entered into the lease without the assurances made in the city manager’s letter. However, the letter did state that drilling rights were not guaranteed and were not legally binding as part of the lease.

The drilling permits were finally denied by the city council in March 2013, after years of debate over the city’s drilling regulations and the company’s drilling rights. Five months later, the decision was affirmed after the company appealed.

Two other companies had also leased land from the city for drilling purposes, but they dropped out after the city began to consider stricter drilling regulations.

Dallas modified its drilling regulations in December 2013, requiring a 1,500-foot setback between new rigs, compressor stations and “protected use” areas such as businesses, homes and churches. This is five times larger than the previous setback requirement, and it is one of the strictest in Texas.

Trinity East claims in the lawsuit that inability to drill on the land is likely to cost the company hundreds of millions of dollars over the lifetime of the wells.

Gregory D. Jordan is an Oil and Gas lawyer in Austin. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

The lawsuits were filed against Central Texas Orthopedic Products Inc., an Austin-based distributor for Biomet Inc., and Exact Surgical Inc., a Tulsa-based distributor for Exactech Inc. Both lawsuits involve independent contractors who allegedly left Smith & Nephew to work for the other companies despite having signed noncompete agreements promising not to work for a competitor for one year after leaving S&N.

The lawsuits claim that sales representatives are privy to a large amount of confidential information regarding pricing, marketing, customers and product technology. The company also said in court documents that it invests substantial resources in training its sales reps.

Both lawsuits claim that Smith & Nephew’s competitors used the contractors to take customers away from S&N. In both lawsuits, Smith & Nephew filed cease-and-desist letters that it sent to the ex-contractors with the court, stating that the noncompete agreements were being violated and that both the sales representatives and the companies that employed them risked litigation.

Smith & Nephew previously filed a $56 million lawsuit against a group of former managers and sales representatives that also took jobs with a competing company, allegedly in violation of noncompete agreements.

Gregory D. Jordan is an Austin business attorney and business litigation lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Sandeep Gupta worked as a location manager in Houston for Schwan’s until he quit in 2013. He said he was subjected to extreme mistreatment, including racial slurs and physical attacks.

Gupta, who was born in India and raised in Hong Kong, said that he was called names such as “turban head” at work, and that coworkers suggested he was a terrorist. Allegedly, they also altered a photograph of him to make it appear that he was surrounded by a SWAT team. Gupta claimed that company managers physically attacked him, holding him down and striking him in the groin. He claims that the abuse continued on a systematic basis even after he reported it to his supervisor.

Gupta said that he needed the job and could not afford to quit until last year. He said he is now looking for work.

Schwan’s issued a statement stating that it is the company’s policy to provide a workplace free of discrimination and harassment, and that Gupta did not report the alleged abuse prior to his resignation.

Gregory D. Jordan is an employment lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Dallas-based Energy Transfer Partners filed the lawsuit against Houston-based Enterprise Products Partners and Enbridge Inc. of Calgary, Alberta. Energy Transfer Partners claims that a business partnership had been created between itself and Enterprise to jointly construct a pipeline from Cushing, Oklahoma to Houston, but that Enterprise conspired with Enbridge to cut Energy Transfer out of the deal.

In a motion to dismiss the case, Enterprise and Enbridge claimed that no partnership or joint venture was actually created between Energy Transfer and Enterprise. The motion to dismiss was denied by Dallas County District Judge Emily Toblowsky, and jury selection has now begun.

The case is noteworthy because it involves important business litigation issues and pits prominent Texas trial attorneys against one other. The case is also expected to reveal information about the business strategies of three large, fast-growing oil companies. Testimony from executives of all three companies is expected to be given.

Energy Transfer Partners, which has approximately $50 billion in gas and oil assets, claims that Dan Duncan, the chairman and majority owner of Enterprise, approached Energy Transfer Partners about forming a joint venture before his death in 2010. Enterprise, which has about $38 billion in assets, signed a nonbinding agreement with Energy Transfer Partners in spring 2011.

Energy Transfer Partners claims that over the following few months, the two companies jointly made operational decisions, met with potential customers and marketed the partnership, calling the venture Double E Pipeline and even signing a deal with Chesapeake Energy in August 2011 to ship oil on the installation.

However, Enterprise announced that it was terminating the business relationship less than a month later. Allegedly, the company then started a similar venture with Enbridge, which has annual revenue of about $11 billion and assets of approximately $30 billion.

Energy Transfer Partners claims that Enterprise and Enbridge conspired to end the existing partnership and is suing for $1.2 billion in damages. Enterprise claims that no partnership had been finalized, pointing to language in an April 2011 letter that states that no obligations would exist between the two companies until the parties received approval from their respective boards. Energy Transfer Partners argues that Texas law has a liberal definition for the existence of a business partnership, even sometimes finding a partnership in cases in which the parties claim there is none.

Gregory D. Jordan is an Oil and Gas lawyer in Austin. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

LasikPlus of Texas requested a court order to enforce the covenant not to compete against a doctor, formerly employed by the clinic, who planned to open his own clinic nearby. The Fourteenth Court of Appeals rejected the request, finding that the noncompete agreement did not contain language required by statute.

The agreement in question barred the doctor from opening a competing business within 20 miles of LasikPlus and from soliciting its clients for a period of 18 months following the end of his employment. The agreement included terms allowing for reasonable enforcement even if it was found to be unreasonable in scope, and it expressly provided for an injunction if the agreement was violated.

However, the agreement did not include language required by the Texas Covenants Not to Compete Act, which provides that covenants relating to the practice of medicine must include a reasonable buyout provision. The court found that because the agreement in question contained no such provision, it was unenforceable as a matter of law.

Among other arguments, LasikPlus said that there was a mutual mistake with regard to the drafting of the agreement. However, the court noted that the doctor had submitted an uncontroverted affidavit stating that he had raised the possibility of a buyout, and that the suggestion was rejected.

Gregory D. Jordan is an Austin business attorney and business litigation lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Misrepresentation

Misrepresentation is an untrue statement or omission of material fact that a broker makes purposefully relating to an investment. This may happen with any security, but is more common with low-priced, speculative securities because they are riskier. Investors can avoid this problem by asking brokers to send written information that backs up their representations. Ideally, such representations should be independently verified by your own research.

Cold-Calling or High Pressure Sales Calls

This problem occurs when an investor receives frequent, badgering phone calls or calls that involve a high pressure sales pitch such as an investment only being available for a limited time. Remember that with any sales pitch, claims that seem too good to be true usually are. Investors should never send money to a firm or broker they are hearing from for the first time. You can investigate a broker’s background via FINRA’s BrokerCheck system or by checking the state securities office. Also, callers must limit calls to between 8 a.m. and 9 p.m., and must comply with a request to be placed on their “do-not-call” list.

Unsuitability

Unsuitability can be a problem whenever a broker encourages an investment that does not match the investor’s goals and investing profile. An example would be recommending that an investor with a fixed income invest in a highly speculative security. To keep clear of such issues, investors should always make sure they understand and agree to the nature of any investment. If you don’t understand it, don’t buy it.

Unauthorized Trading

Unauthorized trading occurs whenever securities are bought or sold in customers’ accounts without their prior knowledge and authorization. To prevent this from happening, review account statements carefully, document all conversations with brokers, and take immediate action if you discover an unauthorized trade.

The owners allege that they were misled into selling their gas and oil interests for a reduced price; the company argues that the royalty owners should not get a new trial after a previous appeal resulted in the loss of a $21 million judgment in their favor.

The royalty owners claim that Exxon misrepresented the productivity of their wells, leading the owners to believe they were worth less than they were, which in turn influenced their decision to sell their interests to a different company at a reduced price. Exxon argues that the owners’ decision could not have been affected by Exxon’s representations, because the owners repeatedly denied that the wells were losing value.

Exxon’s brief claims that the royalty owners did not justifiably rely on the company’s representations, because they “distrusted everything” the company said and conducted their own investigation, ultimately rejecting Exxon’s suggestion that the leases should be modified.

The underlying dispute began in 1996, when royalty owners sued Exxon, claiming that the company was sabotaging Refugio County wells by plugging them with foreign material. According to the lawsuit, Exxon attempted to negotiate a lower rate on the leases by claiming that productivity was diminishing. When the owners refused to accept less than a 50 percent royalty rate, Exxon terminated the leases. The owners later leased to Emerald Oil and Gas for a 30 percent royalty rate, according to court records.

The fraud claims were dismissed prior to trial, with the trial court finding no evidence that the royalty owners relied on Exxon’s statements. The other claims (for breach of contract and waste) resulted in a $21 million verdict in 1999. But after a series of appeals, the Texas Supreme Court reversed that verdict in 2009.

However, because the appeals court did not address the issue of whether the fraud claims were dismissed improperly, the Texas Supreme Court remanded the case for review of that issue. The lower appeals court then found that the fraud claims were improperly dismissed and sent the case to the trial court for a new trial.

Exxon now argues that the Texas Supreme Court should step in again and reverse the order for a new trial.

According to Exxon’s brief, the appeals court perceived an attempt at fraudulent inducement in Exxon’s statements which, even though they were rejected at the time, were nevertheless relied upon later, in separate negotiations with a different party.

The law, Exxon said, should not go that far.

For a concise case summary and further detail, click here.

Gregory D. Jordan is an Oil and Gas lawyer in Austin. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

The royalty owners claim that Exxon misrepresented the facts regarding the productivity of their wells in an attempt to negotiate a different royalty rate. After the royalty owners refused to accept less than a 50 percent rate, Exxon terminated the drilling contracts. Later, the owners negotiated a separate deal with a different company for a 30 percent royalty rate. The leaseholders claim that their reliance on alleged misrepresentations by Exxon led them to accept a bad deal.

Exxon’s brief to the Texas Supreme Court claims that the owners could not have relied on Exxon’s statements because they “distrusted everything” the company said. Instead, the owners conducted an investigation of their own which led them to reject Exxon’s offer of a lower royalty rate, according to the company’s brief.

The original dispute began in 1996, when the royalty owners sued Exxon, claiming the company had sabotaged Refugio County wells to create the appearance of reduced productivity in an attempt to negotiate more advantageous lease terms. The owners won a $21 million verdict on breach of contract and waste claims, but the fraud claim was dismissed before trial.

The Texas Supreme Court later reversed the breach of contract and waste verdict, but remanded the fraud claims to a lower appeals court, which found that they were improperly dismissed and granted a new trial. Exxon is now asking the high court to step in again and reverse the order for a new trial.

Gregory D. Jordan is an Oil and Gas lawyer in Austin. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

A private placement is an offering of securities by a company that is not offered to the public at large and is not registered with the SEC. Many of these offerings are made pursuant to Regulation D of the Securities Act of 1933. Generally, one must be an “accredited investor” to make an investment in a private placement. Institutions such as banks and insurance companies, and organizations or trusts with assets of $5 million or more, are accredited investors. For an individual to be an accredited investor, the person must have a net worth of $1 million or more, excluding the value of the person’s primary residence, or an income of more than $200,000 in the two most recent years.

Gerri Walsh, a senior executive at FINRA, warned that private placements are often issued by companies that have no requirement to file financial reports, and this can lead to difficulty for investors trying to evaluate the financial health of the company. Because of the issues with liquidity and risk, Walsh said that investors should carefully consider their options before investing in a private placement.

While private placements are not new, FINRA recently uncovered fraud and sales practice abuses related to private placements, including offering documents that contained inaccurate statements.

FINRA said that if an investor is presented with a private placement offering document, it should be reviewed carefully. According to the investor alert, people considering investing in a private placement should find out as much as possible about the company’s business and what the options are for liquidating one’s investment. The organization also said that any such investment should be discussed with one’s broker in detail beforehand.

Torchy’s, with restaurants in Austin, Houston and Dallas-Ft. Worth, claims that Texas Taco, a chain of three stores, used Torchy’s “Taco Bible” to create a nearly identical menu. According to the complaint, a former employee of Torchy’s stole the book of detailed recipes. The cook now allegedly works at Texas Taco, where some items with identical descriptions have appeared on the menu.

The plaintiff claims that its recipes constitute trade secrets because they detail start-to-finish processes describing the order in which ingredients are cooked and how they are combined.

According to the lawsuit, a Torchy’s manager viewed security footage that showed an employee hiding the Taco Bible under his shirt and exiting the restaurant. The manager called the employee and demanded he return the book, which he did approximately six hours later. He was then fired.

Two months later, Torchy’s claims that a manager visited Texas Taco Co. and found the ex-employee working there and nearly identical items on the menu.

According to a local news report, some of the descriptions on the menus of the two restaurants are duplicated verbatim.

Torchy’s claims that the ex-employee provided Texas Taco with trade secrets in violation of a nondisclosure agreement he signed.

Gregory D. Jordan is a business lawyer and business litigation attorney in Austin, TX. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Orca claims that it agreed to pay $3.2 million for the lease to over 900 acres. J.P. Morgan represented the seller, the Red Crest Trust, and also served as trustee and administrator of the trust. Orca is claiming lost profits of up to $400 million.

J.P. Morgan filed a motion for summary judgment, in which it acknowledged that it had leased the property both to Orca and to another entity within a time period of five months. However, the bank claimed that Orca failed in its responsibility to thoroughly vet the title to the property. According to J.P. Morgan, if Orca had attempted to verify the validity of the title and the ability of the land to be leased, it would have discovered the prior lease.

J.P. Morgan also said that Orca’s damages claims were inflated. The bank said that the company’s claims were based on “pie-in-the-sky assumptions” and that Orca’s ability as an oil operator was unproven.

The case, unusual because of the size of the damages claim and the fact that J.P. Morgan admitted its error, is expected to go to trial in December.

Gregory D. Jordan is an Oil and Gas lawyer in Austin. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

The lawsuit, filed in Harris County, claims that a former Torchy’s employee stole the company’s “Taco Bible,” which contains detailed recipes. The grill cook now works for Texas Taco, where the menu items are allegedly duplicated. The lawsuit seeks unspecified damages and an injunction requiring Texas Taco to stop using confidential information gained from Torchy’s.

Although a taco recipe may seem like something that is generally known, and therefore not capable of being a trade secret, Torchy’s says that its Taco Bible and “Build Book” are different because they contain detailed start-to-finish processes of the way that food ingredients are combined, the order in which they are cooked and the manner in which they are assembled.

The lawsuit claims that Torchy’s Chef Michael Rypka — who started the company in Austin in 2006 with a motor scooter and food trailer — personally developed or approved all the menu items and “food concepts and food designs” served at the restaurants.

The lawsuit claims that a security camera at Torchy’s captured a then-employee putting a copy of the Taco Bible under his shirt and then exiting the restaurant. According to the lawsuit, a manager saw the security video and demanded that the employee return the book, which he did approximately six hours later. The employee was then fired.

The complaint alleges that approximately two months after the incident, Torchy’s discovered that the new Texas Taco restaurant in Baytown, approximately 30 miles outside Houston, had a similar menu. A Torchy’s manager visited the restaurant and claims he found the ex-employee working there and nearly-identical items on the menu.

According to a local news report, the descriptions of some items on Texas Taco’s menu are a word-for-word match to Torchy’s menu items, with only the name of the item changed. A taco that Texas Taco named the “William Travis” has the same 27-word description as the item that Torchy’s calls the “Republican.” The same is allegedly true for other items, including quirks such as the use of all-capitalized letters for some ingredients.

The lawsuit alleges that the ex-employee gave trade secrets to Texas Taco in violation of a nondisclosure agreement that he signed with Torchy’s.

Gregory D. Jordan is an Austin business attorney and business litigation lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

FINRA warned investor never to reveal personal information to an unsolicited caller and never to authorize a transfer of funds at the direction of an unknown person.

Gerri Walsh, a FINRA senior executive, said that if you are not sure if the person you are talking to is a legitimate representative of a brokerage firm, the best course of action is to quickly end the call and then call the firm’s customer service department.

FINRA said that investors who suspect they have been victims of this type of scam should contact their financial institution immediately to report theft through electronic funds transfer. People who believe their identity may have been stolen should follow the Identity Theft action plan available on the website of the Federal Trade Commission.

The Proposed Rules
As proposed, a company may raise investment capital through crowdfunding if certain conditions, including the following, are met:

• A company raises no more $1 million through crowdfunding offerings in a 12-month period;
• Over the course of a 12-month period, each of the company’s investors has invested no more than the following in all offerings relying on the crowdfunding exemption:
  • $2,000 or 5 percent of their net worth or annual income, whichever is greater, if both their net worth and annual income are less than $100,000; or
  • 10 percent of their net worth or annual income, whichever is greater, not to exceed a maximum aggregate amount $100,000 invested, if either their net worth or annual income is equal to or more than $100,000;
• The transaction is conducted exclusively through a single qualifying intermediary’s² platform; and
• The company complies with the requirements of the exemption.

Crowdfunding Intermediaries
Crowdfunding offerings must be conducted exclusively online through a platform operated by a registered broker or a funding portal.³ Under the proposed rules, these intermediaries must:

• Have a reasonable basis for believing that the company is complying with the applicable rules;
• Provide investors with educational materials;
• Ensure that the company’s disclosure is made publicly available for 21 days before securities are sold;
• Make available information about the company and the offering;
• Facilitate the offer and sale of crowdfunded securities;
• Take measures to reduce the risk of fraud;
• Provide communication channels to permit discussions about offerings on the platform; and
• Avoid offering investment advice or making recommendations.

Disclosure Requirements
The proposed rules require a company conducting a crowdfunding offering to file an offering statement with the SEC through the EDGAR filing system on a new Form C and to provide the offering statement to investors and the relevant intermediary facilitating the crowdfunding offering. Items that the company will be required to disclose in its offering documents include:

• A description of the company’s business and the use of proceeds from the offering;
• The price to the public of the securities being offered, the target offering amount, the deadline to reach the target offering amount, and whether the company will accept investments in excess of the target offering amount;
• Information about the risks of the offering;
• Information about officers, directors and owners of 20 percent or more of the company;
• Certain related-party transactions; and
• A description of the financial condition of the company including for offerings that, together with all other crowdfunding offerings of the company within the preceding 12-month period, have in the aggregate, target offering amounts of:
  • $100,000 or less: (a) the income tax returns filed by the company for the most recently completed year (if any); and (b) financial statements of the company, which shall be certified by the principal executive officer of the company to be true and complete in all material respects;
  • more than $100,000, but not more than $500,000: financial statements reviewed by an independent public accountant using professional standards and procedures for such review or standards and procedures established by the SEC by rule for such purpose; and
  • more than $500,000 (or such other amount as the SEC may establish by rule): audited financial statements.

The proposed rules require the offering statement to be updated for material events over the course of the
offering prior to completion, and provide investors with the option to back out of their investment in such
an event.

A company relying on the crowdfunding exemption will also be required to file an annual report with the
SEC and post it on their website, which would include updates of many of the items included in the initial
offering statement.

Companies must also clearly disclose all compensation paid directly or indirectly to solicitors that promoted the offering through the channels of the broker-dealer or funding portal.

Ineligible Companies
Companies that are ineligible to use the crowdfunding exemption include companies that already are SEC reporting companies, foreign companies, companies that are disqualified under the proposed disqualification rules, companies that have failed to comply with the annual reporting requirements in the proposed rules, certain investment companies, and companies that have no specific business plan or have indicated that their business plan is to engage in a merger or acquisition with an unidentified company or companies.

Advertising Restrictions
Companies cannot advertise the terms of the offering, except for notices which direct investors to the funding portal or broker-dealer.

Resale Restrictions
As stipulated in Title III of the JOBS Act, securities purchased in a crowdfunding transaction cannot be resold for a period of one year.

Holder of Record
Holders of these crowdfunding securities will not count toward the threshold that requires a company to register with the SEC under Section 12(g) of the Exchange Act.

Preemption of State Securities Laws
The crowdfunding exemption preempts state securities laws by making exempt crowdfunding securities “covered securities”, although some state enforcement authority and notice filing requirements would be retained. State regulation of funding portals will also be preempted, subject to limited enforcement and examination authority.

Initial Reaction to the Proposed Rules
The financial and compliance burdens imposed on crowdfunding offerings may make it impractical and prohibitively expensive for start-up companies to benefit from them, although the SEC’s proposed rules are intended to make it easier for start-up companies to raise capital. In addition to the costs that start-up companies will incur to prepare financial statements, engage and compensate a broker-dealer or funding portal and prepare disclosure materials, these companies will be required to regularly file financial and informational reports that will be available for review by the general public, including competitors, customers and strategic partners. A company will need to weigh the benefits of raising a limited amount of capital through crowdfunding against the financial and compliance obligations associated with the proposed crowdfunding rules, especially if the company is otherwise able to raise capital from “accredited investors” under the recently relaxed general solicitation and general advertising rules under Regulation D.

The SEC is seeking public comment on the proposed rules until approximately January 21, 2014. The SEC will then review the comments and determine whether to adopt the proposed rules. Until the SEC adopts final rules, the crowdfunding exemption contemplated by Section 4(a)(6) of the 1933 Act is not available.

Please contact Mitchell C. Littman, Esq. at mlittman@littmankrooks.com or Steven D. Uslaner, Esq. at suslaner@littmankrooks.com if you have questions concerning the proposed rules.

¹Crowdfunding is the process of seeking relatively small investments from a broad group of investors via the Internet.
²An intermediary is either a broker-dealer or a funding portal registered with the SEC.
³A funding portal is defined as an intermediary for exempt crowdfunding offerings that does not: offer investment advice or recommendations; solicit purchases, sales, or offers to buy securities offered or displayed on its website or portal; compensate employees, agents, or other persons for such solicitation, or based on the sale of securities displayed or referenced on its website or portal; hold, manage, possess, or otherwise handle investor funds or securities; or engage in other activities as the SEC may determine. Funding portals are required to register with the SEC using Form Funding Portal, a modified Form BD, and to become members of the Financial Industry Regulatory Authority (“FINRA”).

The company has been sued several times previously by other leaseholders over the same issue. The most recent lawsuit also alleges that Chesapeake used sham transactions to its affiliates to lower the reported price for natural gas production, and did not pay royalties at all for some natural gas liquids.

The lawsuit claims that Chesapeake and co-defendant Total E&P USA used an accounting system that led to lower royalty payments, making sales to its affiliates to arrive at a lower reported price from which royalties would be calculated and conducting sham transactions as a way to impose post-production costs. The suit alleges that for some natural gas liquids, Chesapeake simply did not pay any royalties at all.

Natural gas liquids, which are separated from the gas after production, can command a higher price per unit of energy than dry gas.

Previous lawsuits against Chesapeake Energy over royalty payments were filed by a group of Tarrant County landowners and by the city of Arlington. According to news reports, similar cases have been brought against the company in at least six other states.

Gregory D. Jordan is an Oil and Gas lawyer in Austin. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

The lawsuit seeks injunctive relief and monetary damages for Aio’s alleged trademark dilution, trademark infringement and unfair competition with regard to trademark rights to the color magenta in the telecommunications field.

According to the lawsuit, in early 2013, T-Mobile announced plans to compete against other telecommunications providers by offering service without the need for an annual or two-year contract. The complaint alleges that AT&T responded by forming Aio, a wholly-owned subsidiary, which began offering no-contract telecommunications services. The lawsuit claims that Aio chose magenta for its promotional material “out of all the colors in the universe” and that the use of the color was likely to dilute the company’s “famous magenta color trademark” and to engender “initial interest confusion” as to the affiliation of Aio.

For its part, Aio says that the logo is simply not magenta.

“T-Mobile needs an art lesson,” an Aio spokesperson said in a statement. “Aio doesn’t do magenta.”

A comparison of the company’s logos shows that while the colors are not identical, they both potentially could be described as magenta. T-Mobile’s logo is somewhere on the hot-pink end of the magenta spectrum, while Aio’s color scheme might be called maroon or plum.

Aio launched in early May, offering no-contract mobile phone service to customers in Houston, Tampa and Orlando. The company plans to expand to other markets over the course of the next year.

The complaint alleges that T-Mobile’s parent company, the German firm Deutsche Telekom, began using the color magenta in the telecommunications field in the 1990s and that magenta is “internationally recognized” as a symbol of the company.

In the United States, Deutsche Telekom began using magenta in T-Mobile marketing materials in 2002. According to the lawsuit, the company has promoted the “Magenta Mark” continuously for over ten years and owns national rights to it in the telecommunications context. The company referenced its spokeswoman Carly Foulkes, who appeared in a magenta dress in early television commercials. T-Mobile has also replaced the traditional red carpet with a magenta carpet at promotional events.

The lawsuit claims violations of the Lanham Act, the Texas Anti-Dilution Statute, the Texas Business and Commerce Code and Texas common law.

Gregory D. Jordan is an Austin business attorney and business litigation lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

In the 2008 Garza case, the Texas Supreme Court overturned a verdict awarding millions of dollars to Hidalgo County landowners who claimed that hydraulic fracturing on neighboring property had caused drainage of their underground minerals to an adjacent well. The Texas high court ruled that the rule of capture applied, protecting drillers from such claims as long as they followed the law and did not, for instance, drill a slanted well underneath neighboring property.

Some legal observers have argued that in cases of hydraulic fracturing, also known as “fracking,” drainage is nearly inevitable and the rule of capture should not apply. The Texas Supreme Court said in the Garza case that the remedy for landowners worried about drainage is to dig their own well. Some landowners have said that this is not always practical.

Texas law prohibits drilling close to a neighbor’s property line, but drillers may apply to the Railroad Commission of Texas, which regulates drilling, for what is known as a Rule 37 exception. According to an analysis by the Texas Tech Law Review, such exceptions can result in drillers capturing hydrocarbons from underneath adjacent property, with landowners receiving no compensation.

Despite criticism of the rule of capture, landowners should be aware that it is still the law in Texas.

Gregory D. Jordan is an Oil and Gas lawyer in Austin. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

The lawsuit, filed in federal court in New York, alleges that Servisair rounded down the hours employees worked, docked employees for lunch breaks not taken and used a system for time-keeping that automatically reduced the hours recorded for employees.

The plaintiffs estimate that each employee was docked about five hours of overtime each week since 2010. The lawsuit is seeking class-action status. Employees from airports in Texas, Illinois, Florida, New York and Massachusetts signed on as initial plaintiffs. There may be other plaintiffs found in Servisair’s more than 30 U.S. locations.

According to the lawsuit, employees had half an hour deducted from their paychecks even when they did not take a lunch break. The complaint also alleges that the company manipulated its time-keeping system such that an employee who clocked in at 7:30 a.m., for example, would only be paid beginning at 8 a.m. At the end of a shift, according to the lawsuit, employees were also docked, with an employee who worked until 11:30 p.m., for example, only being compensated for time up until 11 p.m. Though employees were not paid for arriving early or working late, they were docked pay if they arrived late or left early.

The complaint estimates that employees have been docked tens of millions of dollars over the past three years. The lawsuit seeks damages and attorney’s fees. Three previous actions against Servisair were settled out of court.

The lawsuit was filed against Servisair, owned by French company Derichbourg, and Matt Ellingson, an executive for U.S. and Caribbean operations. Attorneys for the plaintiffs said they believed that Ellingson benefited personally from the alleged underpayments, and that he could be held personally liable if it could be proven that he had operational control.

The legal action could cost the company between $50 million and $100 million and could also complicate Servisair’s impending acquisition by Swissport. A Swissport spokesperson declined to comment on the case but said that the acquisition would likely continue. Shares in Derichbourg rose 25 percent after the announcement of the planned acquisition.

Servisair said in a statement that the lawsuit had no merit and that the company had an “unwavering commitment” to its employees.

Gregory D. Jordan is an employment lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Lawrence G. Wojcik filed the lawsuit against Costco Wholesale Corp. June 18 in United States District Court, Eastern District of Texas, Sherman Division, alleging violations of the Family and Medical Leave Act (FMLA), the Age Discrimination in Employment Act and the Texas Commission on Human Rights Act.

According to the complaint, Wojcik started working as a meat cutter in September 1988 and was later promoted to meat department manager. Wojcik claims that on February 9, 2012, he informed his employer that he was taking 60 days medical leave under the FMLA. When he returned to work after 30 days, he was immediately placed on suspension. According to the complaint, Wojcik’s employment was terminated on March 13, 2012. He was 60 years old at the time of his termination and had worked for the company for 24 years.

Wojcik claims that the company was attempting to create a younger workforce and that one manager in particular made numerous comments about not wanting older employees. According to the lawsuit, Wojcik had exemplary performance reviews, in which managers said that he was “outstanding” and “does an excellent job.”

A jury trial is demanded and damages are sought for lost wages and benefits, emotional pain and suffering, punitive damages, attorney’s fees and costs of suit.

Gregory D. Jordan is an employment lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

The lawsuit was filed by Conquistador Petroleum on April 5 against E&B Natural Resources Management Corp. and Francesco Galesi in Jefferson County District Court.

Conquistador claims that E&B failed to fulfill its contract to drill three wells on a 22-acre parcel of the North Port Acres Prospect, after the first well was found to be dry. According to the lawsuit, Conquistador spent $600,000 on seismic data for the property in 2006 and 2007 and $4 million more afterward.

According to the lawsuit, the two companies signed an exploration agreement on May 1, 2008 which called for E&B to drill three 10,500-foot-deep wells, with E&B’s performance guaranteed by Galesi.

The lawsuit states that Conquistador obtained a license allowing E&B to drill the wells, but the company failed to do so by the September 1, 2008 deadline. That deadline was extended, and the companies amended their contract such that E&B would drill two 16,500-foot-deep wells instead of the three shallower wells.

According to the complaint, after the first well was drilled in the fall of 2010 and was found to be dry, E&B failed to drill the second well and requested that the agreement be terminated.

Conquistador is seeking reimbursement of sunk costs of $2.3 million, as well as the $600,000 it spent obtaining seismic data.

Gregory D. Jordan is an Oil and Gas lawyer in Austin. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

The lawsuit was filed by Lawrence G. Wojcik on June 18 in United States District Court, Eastern District of Texas, Sherman Division, naming Costco Wholesale Corp. as defendant.

According to the lawsuit, Wojcik started working as a meat cutter for Costco in September 1988 and was later promoted to manager of the meat department.

Wojcik alleges that on February 9, 2012, he informed his employer that he would be taking 60 days medical leave under the Family and Medical Leave Act (FMLA), because of heart issues. Wojcik actually returned to work within 30 days but was immediately placed on suspension. According to the lawsuit, Wojcik’s employment was terminated on March 13, 2012, at which time he was 60 years of age and had worked for the company for 24 years.

Wojcik alleges that Costco was trying to create a younger workforce and push out older workers. The lawsuit accuses Costco of violating the FMLA, the Age Discrimination in Employment Act and the Texas Commission on Human Rights Act.

In the complaint, Wojcik alleges that he helped Costco open several new store locations in different states and that Costco considered him the top meat manager in Texas. According to the lawsuit, Wojcik’s performance was labeled “outstanding” on his final three performance reviews in 2009-2011. The complaint quotes a Costco manager’s assessment of Wojcik as saying he “does an excellent job” and “exceeds expectations in many areas.”

The lawsuit alleges that Wojcik was brought in to help open and manage the meat department at a new Costco location in Frisco, Texas, which was overseen by a manager in her late 30s. According to the complaint, this manager rejected an approximately-50-year-old qualified applicant for a meat cutter position, stating, “I have enough old people already – only so many ‘door positions’ available for you old people,” referring to workers who greet customers entering the store.

The complaint further alleges that the manager in question made frequent remarks to the effect that Costco had too many older workers, and made an unsolicited comment to Wojcik indicating that he was perhaps too old to perform his job properly.

The lawsuit demands a jury trial and seeks damages for lost wages and benefits, emotional pain and suffering, punitive damages, attorney’s fees and costs of suit.

Gregory D. Jordan is an employment lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Click here for the brochure, and remember, if you are making your reservations, be sure to block out the 2 days before the convention (October 20 and 21) for the NBAA Tax Conference.

I look forward to seeing you there.

Regards. SHL.

A. Amendment to Rule 506

The SEC amended Rule 506 by adding subsection (c), which permits general solicitation and general advertising under the following conditions:

1. the issuer must take reasonable steps to verify that the purchasers of the securities are accredited investors; and
2. all of the purchasers of securities are accredited investors either because they fall within one of the categories of persons who are accredited investors under existing Rule 501 or the issuer reasonably believes that they do at the time of the sale of securities.

B. Verification Standards

To take advantage of the general solicitation and general advertising permitted under Rule 506(c), there is an affirmative requirement that the issuer take “reasonable steps to verify that the purchasers of the securities are accredited investors”. The specific steps required to be taken are not dictated by the new rules. Instead, the reasonableness of the steps taken turns on the objective assessment of the issuer. However, the final rules do set forth a non-exclusive and non-mandatory list of methods that are deemed to satisfy the verification requirement for purchasers who are natural persons, including:

1. documentation of net worth, such as through a review of bank and brokerage statements for assets and a credit report for liabilities;
2. documentation of income, such as through a review of the last two years’ income tax returns;
3. written confirmation from a registered broker-dealer, SEC-registered investment adviser, licensed attorney or certified public accountant that such person or entity has taken reasonable steps to verify that the purchaser is an accredited investor within the past three months; and
4. reliance on written verification from an existing investor who previously purchased securities in the issuer’s Rule 506 private placement before the effectiveness of the new rules, where the investor continues to hold the previously purchased securities.

In addition to the foregoing, issuers may verify the accredited status of Rule 506(c) investors in any other reasonable manner that they select. The SEC discusses various other available methods, including a review of pay stubs or a review of an SEC or other governmental filing listing the investor’s annual compensation. Alternatively, if the amount of the investment is very high, such that only accredited investors would reasonably be expected to make such an investment, and the investor certifies that the investment is not being financed by a third party, this could be taken into account in determining that the investor is accredited. Conversely, merely having the investor check the “accredited investor” box on a questionnaire would not alone be a sufficient basis to demonstrate that the issuer has taken “reasonable steps” to verify the investor’s accredited status.

C. Proposed Form D Amendments

The SEC proposed amendments to Form D that would require additional information from issuers, such as the methods used to verify the accredited investor status of investors and the types of general solicitation and general advertising used. An issuer relying on new Rule 506(c) would also be required to file Form D with the SEC no later than fifteen days prior to commencing a Rule 506(c) offering and an amended Form D within thirty days following the completion of the offering. The SEC also proposed disqualifying issuers from relying on Regulation D for one year if they fail to file Form D and requiring additional legends and disclosures in all offering materials relying on Rule 506(c). Additionally, the SEC is proposing that for the first two years after the effective date of the rule an issuer relying on Rule 506(c) be required to file all general solicitation and general advertising materials with the SEC.

D. Bad Actor Disqualification

As mandated by Section 926 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (the “Dodd-Frank Act”), the SEC also approved final rules to disqualify securities offerings involving certain felons and other so-called “bad actors” from reliance on the exemption from Securities Act registration pursuant to Rule 506. If such “bad actors”, which now include investment managers and principals of private investment funds, are the subject to certain “disqualifying events”, then they will disqualify an issuer from relying on Rule 506. Disqualification will not arise as a result of triggering events that occurred before the effective date of the rule. However, matters that existed before the effective date of the rule and would otherwise be disqualifying are subject to a mandatory disclosure requirement to investors.

E. Retention of the Existing Rule 506 Safe Harbor

The SEC is retaining the existing ability of issuers to conduct Rule 506(b) offerings without engaging in a general solicitation or general advertising.

F. Amendment to Rule 144A

The SEC also adopted an amendment to Rule 144A to permit securities sold under Rule 144A to be offered to investors other than qualified institutional buyers (“QIBs”), including by general solicitation or advertising, so long as the securities are only sold to investors that the issuer reasonably believes to be QIBs at the time of sale.

The final rules will go into effect sixty days after their publication in the Federal Register (mid-September 2013). The proposed Form D amendments are currently open for comment for sixty days.

G. Noteworthy Considerations
Rule 506 Offerings

• An issuer can rely on traditional means of confirming that investors are accredited investors in connection with Rule 506(b) offerings.

• A press release announcing a Rule 506(c) offering does not need to comply with Rule 135c.

• An issuer conducting a Rule 506(c) offering must establish a reasonable belief that the investors in the offering are accredited investors. Thus, if an issuer relies on a third-party verification service, the issuer must conduct due diligence on the third-party service and seek to understand the process that will be used by the third-party verification service for verification of accredited investor status.

• An issuer can rely on the Section 4(a)(2) exemption in conjunction with or as an alternative to a Rule 506(b) offering because the Rule 506(b) offering does not involve general solicitation or general advertising. However, an issuer cannot rely on the Section 4(a)(2) exemption in connection with a Rule 506(c) offering because general solicitation of investors is not consistent with an exempt offering under Section 4(a)(2), which is a transaction “by an issuer not involving any public offering”.

• An issuer can likely begin a private offering as a Rule 506(b) offering and then decide to rely on Rule 506(c) for the offering. However, it is unlikely that an issuer would be able to change course from a Rule 506(c) offering to a Rule 506(b) offering given the presence of general solicitation or general advertising in connection with the Rule 506(c) offering.

• Generally, an issuer cannot conduct a contemporaneous Rule 506(b) offering and Rule 506(c) offering. If the issuer offers the same security, it would not be possible to prevent the general solicitation and general advertising used in connection with Rule 506(c) from tainting the contemporaneous Rule 506(b) offering. However, it may be possible to conduct contemporaneous offerings if the issuer offered different securities and if the investors in the two offerings were different. Rule 502(a) of Regulation D sets forth the traditional “five factor” test that issuers should consider in determining whether offers and sales should be integrated for the purposes of the exemptions under Regulation D.

• Once a Rule 506(c) offering has been completed, the issuer can conduct a Rule 506(b) offering. Given that the Rule 506(c) offering involved general solicitation and general advertising, it is judicious to let time elapse between the two offerings. Rule 502(a) of Regulation D provides a safe harbor from integration of Regulation D offerings made six months before or six months after an offering. A Rule 506(c) offering can follow a completed Rule 506(b) offering.

Secondary Market Transactions

• General solicitation and general advertising should not be used in connection with resales made in reliance on Rule 4(a)(1-1/2) because this exemption relies on the interplay of the Section 4(a)(1) and the Section 4(a)(2) exemptions and the JOBS Act did not amend Section 4(a)(2).
• The changes to Rule 506(c) do not affect resales because Rule 506 is available only to issuers.

Offerings in Close Proximity

• A private placement made pursuant to Section 4(a)(2) and/or Rule 506(b) shortly before the filing of an initial public offering (“IPO”) would not likely be viewed as “gun jumping” because such an offering does not involve general solicitation and general advertising. However, a Rule 506(c) offering conducted in close proximity to the filing of an IPO may be viewed as “gun jumping” because of the general solicitation and general advertising associated with the offering, especially if the Rule 506(c) offering involves the sale of the same security as that offered in the IPO. In the case of emerging growth companies, the JOBS Act specifically permits test-the-waters communications with institutional accredited investors and QIBs prior to or after the filing of a registration statement. However, the general solicitation and general advertising used in a Rule 506(c) offering may also raise concerns for any test-the-waters discussions.
• The SEC and its staff has clarified that an issuer that is conducting a public offering may conduct a concurrent private placement as long as, among other things, the issuer has not solicited the offerees in the private placement using the registration statement. Presumably, this analysis is made simpler now that general solicitation may be used in connection with a Rule 506(c) offering. The longstanding principle still applies that an offering that commences as a private offering must be completed as a private offering and an offering that commences as a public offering must be completed as a public offering except in the circumstances specified in Rule 155.
• It is unlikely that Rule 506(c) will be used in connection with a private investment in public equity (“PIPE”) transaction. An already public company will likely be reluctant to use general solicitation in connection with a PIPE transaction, because announcing the potential private offering may have an effect on its stock price. Also, once an announcement is made, an issuer may be more reluctant to terminate a deal if the pricing is not favorable.
• Rule 152 clarifies that a completed private offering will not be integrated with a subsequent public offering. Generally, issuers that conduct a PIPE transaction, or private offering wherein resale registration rights are offered to the private investors, rely on Rule 152 in connection with the filing of a resale registration statement. When Rule 152 was adopted, the private offering would not have involved a general solicitation. Thus, it is unclear whether Rule 152 would be available in connection with an offering in which general solicitation is permitted.

Please contact Mitchell C. Littman, Esq. at mlittman@littmankrooks.com, Steven D. Uslaner, Esq. at suslaner@littmankrooks.com or Lesley DeCasseres, Esq. at ldecasseres@littmankrooks.com if you have questions concerning the Rule.

* General solicitation and general advertising include advertisements published in newspapers and magazines, website postings, press releases, communications broadcast over television and radio, and seminars or meetings where attendees have been invited by general solicitation or general advertising.

Macquarie claims to have been injured by intentional misrepresentation and fraudulent inducement on the part of ATP management. The lawsuit alleges that ATP executives conspired with the company’s law firms to misrepresent the royalty interests, producing false and misleading legal opinions regarding the nature of the sale. According to the complaint, when ATP later filed for bankruptcy, the management team caused ATP to take the position that the sale was a disguised loan. ATP is now bankrupt and was auctioned off to lenders in May.

Macquarie has demanded a jury trial and is seeking $32 million in damages in the suit.

Houston-based ATP filed for bankruptcy in 2010, blaming the Deepwater Horizon oil spill and the drilling moratorium in the Gulf of Mexico that followed. ATP executives are facing another suit by shareholders who claim that the company misrepresented the effects that the moratorium had had on revenue prior to a sale of Senior Second Lien Exchange Notes in December 2010.

Gregory D. Jordan is an Oil and Gas lawyer in Austin. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

The lawsuit accuses Hart Energy of fraud, breach of contract, negligent misrepresentation, breach of fiduciary duty and interference with existing and future contracts. The lawsuit was filed on May 7 in Montgomery County District Court in Texas. The case number is 13-05-04872 in the 410th District Court, Judge K. Michael Mayes presiding.

Damien Wolff, the owner of American Energy Mapping, said that Hart Energy was using malicious means to attempt to put his smaller company out of business. Wolff portrayed the dispute as a “David versus Goliath” struggle and said that his company was being “bullied” by unethical and predatory tactics by the larger company.

AEM is an energy geographic information sytem (GIS) data provider that provides information within oil, natural gas and renewable energy datasets. The company operates an online GIS data store that offers information about natural gas and crude oil pipelines and wells, as well as land survey data. The company claims to be an innovator in the GIS data field in that it provides the ability for companies to purchase specific data online without subscribing to data services such as those offered by larger companies.

Hart Energy, based in Houston, is a large provider of news, data and analysis for the energy industry. The company publishes newsletter, magazines and directories in print form and online. Hart Energy’s publications provide oil and gas investors with information on exploration, production and business opportunities. The company also publishes specialized reports and custom publications for clients and provides member-only electronic portals for data about the oil and gas drilling industry.

A recent survey by Hart Energy found that unpredictable prices for oil and gas are the primary concern of U.S. energy companies. The Survey of Upstream U.S. Energy Companies, published by Hart Energy and Grant Thornton LLP, also found that exploration and land acquisition are companies’ top priorities. Hart Energy recently announced its annual Crude in Motion conference, to be held in Houston on October 30. The conference will feature information about the crude oil and liquids transportation industry.

Gregory D. Jordan is an Oil and Gas lawyer in Austin. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

A number of decisions by the New York State Court of Appeals and the United States Court of Appeals for the Second Circuit had established a per se rule that employers who terminate an employee without cause would not be able to enforce any provisions of a covenant not to compete.

A recent decision by the Second Circuit, in the case of Hyde v. KLS Prof’l Advisors Grp., has thrown that rule into question. In Hyde, the plaintiff sought an injunction against his former employer to prevent the company from enforcing an agreement that prohibited him from contacting clients for three years after his termination. In granting a preliminary injunction, the U.S. District Court for the Southern District of New York relied on the per se rule that such agreements are unenforceable when an employee is terminated without cause.

However, the Second Circuit vacated the decision, stating that the plaintiff had failed to show irreparable harm – a requirement of a preliminary injunction – because if Hyde were prevented from competing with his former employer and then prevailed at trial, he would be adequately compensated by money damages. In remanding the case to the Southern District, the Second Circuit also expressed “reservations” about the per se rule that such agreements are necessarily unenforceable in such a context, and suggested that the court should instead apply a reasonableness test to analyze a covenant not to compete, even when an employee is terminated without cause.

The lawsuit claims that the disk drive makers shared information about prices, production and sales, and agreed to set prices and rig bids for their products sold in the United States. Dell claims that as a result, it was sold disk drives at inflated prices.

According to Dell, the price fixing affected billions of dollars in purchases over a time period from 2004 to 2010. The lawsuit accuses the disk drive makers of breach of contract and violation of U.S. antitrust law. Under the provisions of antitrust law, Dell is seeking triple damages.

In 2011, the Justice Department said that Hitachi-LG pleaded guilty to rigging bids and fixing prices and agreed to pay a $21.1 million fine.

Dell has also named Koninklijke Philips Electronics NV, BenQ Corp., Samsung Electronics Co., Sony Corp., and Toshiba Corp. as defendants in the lawsuit.

Dell is the largest private employer in Central Texas, with about 14,000 workers in the area. The company is the third-largest personal computer manufacturer in the world and is number 38 on the Fortune 500 list of large publicly-traded and closely-held companies. The company was founded by Michael Dell in Austin in 1984 and is one of the world’s largest tech companies.

Gregory D. Jordan is a business lawyer and business litigation attorney in Austin, TX. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

In August 2011, Chesapeake Energy sent notices to royalty owners saying that the company would begin subtracting “post-production costs” from the prices for natural gas used to calculate royalty payments. Chesapeake claimed that it had always been permitted to deduct such costs, but had foregone the deductions in the past. In the notices, Chesapeake said that landowners with lease clauses prohibiting such deductions would not see a change.

Today, Chesapeake is involved in multiple lawsuits in different states over alleged underpayment of royalties. One class action lawsuit has been filed by Johnson County, Texas landowners. The royalty owners claim that Chesapeake deducted costs even though their leases prohibited such deductions. On the other hand, a neighborhood association in Arlington, Texas was successful in convincing Chesapeake to reinstate higher royalty payments based on the “no deductions” clause in their lease.

Chesapeake Energy took the action at a time when natural gas prices were dropping precipitously. The price of natural gas dropped below $2 per 1,000 cubic feet (mcf) in 2012. The fall in prices meant that the post-production costs for processing and transporting natural gas, which can sometimes amount to $1 per mcf or even more, constituted a large percentage of what the landowner believed they should receive.

Gregory D. Jordan is an Oil and Gas lawyer in Austin. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Beginning in August 2011, Chesapeake began deducting “post-production costs” from the prices for natural gas used to determine payments to royalty owners. These costs include expenses such as compressing and treating natural gas to prepare it for sale. According to Chesapeake, the company previously had the legal right to charge for those costs but had chosen not to do so. At the time, the company stated that the costs would not be deducted if a royalty owner’s lease prohibited such charges. The Warrens claim that although their lease did prohibit charging for post-production costs, they were charged anyway.

Post production costs can be about 80 cents to $1 per 1,000 cubic feet (mcf) depending on what must be done to the gas, which is significant when natural gas prices drop to around $2 per mcf, as they did in 2012. According to the Warrens, by March 2012 they were being paid as low as 42.4 cents per mcf for the natural gas Chesapeake extracted from their eight wells, and the difference in payments ran to six figures.

Several other lawsuits have been filed by Texas landowners against Chesapeake over the reduced royalty payments. The Warrens’ suit seeks class action status, a rarity for this type of lawsuit.

Chesapeake has scrambled to adjust to falling gas prices, which reached $1.90 per mcf by April 2012, a 10-year low.

Gregory D. Jordan is a business lawyer and business litigation attorney in Austin, TX. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

According to the lawsuit, filed in federal court in Austin, the manufacturers shared information about sales, pricing and production and agreed to rig bids and fix prices for their products sold in the United States. As a result, Dell said, the company was charged inflated prices for disk drives it bought from the manufacturers.

The lawsuit claims that billions of dollars of purchases over several years were affected. The companies are accused of breach of contract and violation of U.S. antitrust laws. Under antitrust law, Dell is seeking triple damages for the overcharges.

Dell is Central Texas’ largest private employer, with about 14,000 workers in the area. The company is the third-largest manufacturer of personal computers in the world, after HP and Lenovo. Optical drives are components of personal computers and Blu-ray and DVD players. In 2011, the Justice Department said that Hitachi-LG pleaded guilty to fixing prices and rigging bids for disk drives, agreeing to pay a $21.1 million fine.

According to the Justice Department, Hitachi-LG and other companies conspired to fix prices for disk drives to be sold to Dell during a period from 2004 to 2009. Hitachi-LG is a joint venture of Hitachi Ltd., based in Tokyo, and LG Electronics Inc., based in Seoul. According to Dell’s lawsuit, four Hitachi-LG executives pleaded guilty to participation in the price-fixing conspiracy.

The lawsuit also names as defendants Koninklijke Philips Electronics NV, based in Amsterdam; BenQ Corp., based in Taiwan; Samsung Electronics Co., based in Suwon, South Korea; and Sony Corp. and Toshiba Corp., both based in Tokyo. The defendant companies declined comment, citing the pending litigation.

The lawsuit comes at a time when Michael Dell, the founder and CEO of the company, is leading a push to take the company private at a bid of $24.4 billion, or $13.65 per share. Other large Dell shareholders have said they are prepared to make a different offer to investors to take over the company, which would then continue to be publicly traded.

Dell, founded in Austin, Texas in 1984, is one of the world’s largest tech companies, employing more than 100,000 people worldwide. The company is listed as number 38 in the Fortune 500 list of top publicly traded and closely held companies.

Gregory D. Jordan is an Austin business attorney and business litigation lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Charles Hobson was employed by KRIV from 1990 to 2011 as a live truck operator, staff photographer and editor. According to Hobson, the station fired him because of his age. Fox Television Stations, Inc., Fox Entertainment Group and News Corp. are also named in the lawsuit.

Hobson claims that in 2009 he suddenly began receiving negative comments in his employment evaluations, as well as vague negative verbal remarks, after having received only positive or neutral comments in the 19 years previous. The complaint alleges that the station’s news director inserted negative remarks into Hobson’s evaluation without the input of his immediate supervisor. Hobson also said he was blamed for errors that were actually the result of inclement weather or computer breakdowns. Hobson claims he was the oldest or one of the two oldest of the 18 station employees who had job descriptions similar to his.

According to the complaint, the station had begun downsizing, targeting employees who had been hired before 2004 and therefore had larger pension and benefit packages. Hobson sued under the Age Discrimination in Employment Act (ADEA), which protects workers over 40 years old from discrimination, and the Employee Retirement Income Security Act (ERISA), which among other things, prohibits interference with employee benefit plans.

In the lawsuit, the plaintiff demands a jury trial and asks for damages for loss of wages, emotional pain and suffering and loss of enjoyment of life.

Gregory D. Jordan is an employment lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.