Author Info for Gray Reed

Divya Ahuja

2021 TBOC Changes: What Does This Mean for Texas Partnerships, Corporations, and LLCs?

The Texas Legislature, during its 87th Regular Session, passed several bills with direct implications for Texas partnerships, corporations, and limited liability companies. Below are some of the key changes for Texas entities,…more

Business Codes, Business Formation, Corporate Governance, Corporate Sales Transactions, Incorporation

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Jay Aldis

The Impact of the Federal Trade Commission’s Noncompete Ban on the Construction Industry

For years, there has been a state-by-state push to restrict or prohibit non-compete agreements that limit workers’ ability to take a job with a competitor after leaving their employer. This movement to boost employee mobility…more

Construction Workers, Employer Liability Issues, Employment Contract, Federal Trade Commission (FTC), Hiring & Firing

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Angela Alloju

IRS Further Combats Basket Contract Transactions with Proposed Regs

The Treasury Department and IRS have just published proposed Regulations that would identify transactions resembling certain basket contract transactions as listed transactions per the meaning of Section 6011, making them…more

Basket Transactions, Internal Revenue Code (IRC), IRS, Proposed Regulation, Public Hearing

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Daryl Bailey

Deep in the Heart of Privacy: Understanding the Texas Data Privacy and Security Act's Impact on Businesses

On May 28, 2023, the Texas Legislature passed the Texas Data Privacy and Security Act (TDPSA). Once this law becomes effective on July 1, 2024, Texas will become the tenth state to adopt a consumer data privacy law. This Texas…more

Consumer Privacy Rights, Cybersecurity, Data Management, Data Privacy, Data Protection

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John Bakht

Villareal v. Saenz: Fiduciary Duties Will Go On

In Villareal v. Saenz, a district court magistrate judge for the Western District of Texas, San Antonio Division, has recognized that members exiting a limited liability company may continue to hold fiduciary duties despite not…more

Breach of Duty, Business Disputes, Business Divorce, Business Litigation, Contract Terms

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Elise Schuller Barajas

Patient Credit Balances And The Texas Unclaimed Property Law

Patient credit balances occur when a health care provider collects more coinsurance, copays and/or deductibles than it earned. Although this situation arguably beats the alternative of trying to collect earned fees from patients…more

Fiduciary Duty, Health Care Providers, Unclaimed Property

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Brittany Blakey

Texas NPRI Not Diminished by Pooling Ratification

The takeaway from Hahn v. ConocoPhillips Company is that in Texas a NPRI holder may not diminish his rights by ratifying pooling of an oil and gas lease unless there are provisions explicitly purporting to do so…more

Contract Terms, Mineral Extraction, Mineral Leases, Oil & Gas, Ownership Interest

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Julia Edwards Bobbitt

The Fine Print Matters: Five Contract Clauses Subcontractors and Suppliers Can’t Ignore

It never hurts to stop and take a minute to read what you are signing. This is especially true when entering into a contract with a new customer, vendor or on a new project. Your company (and your attorney) will thank you…more

Construction Contracts, Construction Project, Contract Terms, Contractors, Real Estate Development

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Nancy Bostic

Delaware: A Confirmed Pro-Sandbagging Jurisdiction

In an opinion of significance to M&A Practitioners, the Delaware Court of Chancery recently made it clear that Delaware law allows a buyer in an acquisition to “sandbag” a seller if the acquisition agreement allows for…more

Acquisition Agreements, Asset Purchase Agreements, Breach of Contract, Buyers, Contract Negotiations

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Emily Bowlin

Specialty Zoning Topics for Developers and Builders

Last month, we delved into the fundamentals of zoning as they relate to developers and builders. Now, let’s take a deeper dive into specialized zoning topics that merit closer examination…more

Construction Project, Housing Developers, Land Developers, Real Estate Development, Special Use Permit

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Anthony Box

The IRS is Hiring an Army to Audit Corporations, Partnerships, and High-Income Individuals

The IRS has been understaffed for many years, and this has led to a decline in the number of audits conducted. The personnel shortage has also made it difficult to keep up with the growing complexity of the tax code and to…more

Enforcement Actions, Federal Taxes, High Net-Worth, Income Taxes, IRS

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Jason Brookner

Midstream Dedications – Colorado Bankruptcy Court Levels the Playing Field

Until Monarch Midstream v. Badlands Energy, midstream companies facing rejection of their contracts in a producer’s bankruptcy were left with Abraham Lincoln’s least favorite negotiating option: If the both law and the facts are…more

Asset Protection, Chapter 11, Commercial Bankruptcy, Contract Terms, Covenants that Run With the Land

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Darin Brooks

Texas Supreme Court Opinion Has Companies Double Checking Contractual Insurance Obligations

On February 15, 2019, the Texas Supreme Court issued its opinion in Exxon Mobil Corporation v. The Insurance Company of the State of Pennsylvania (ICSOP) reversing the First Court of Appeals and finding that ICSOP had waived…more

Appeals, Contract Terms, Endorsements, Energy Sector, Exxon Mobil

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Maxwell Brown

Busted Land Transaction Violated the Statute of Frauds

In the Estate of Terry Banta presents yet another purported Texas land transaction doomed because of disregard for the Statute of Frauds. Terry Banta and the Herriotts entered into an oral agreement for the Herriotts to purchase…more

Contract Terms, Land Titles, Oil & Gas, Oral Contracts, Purchase Agreement

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Austin Carlson

The Corporate Transparency Act: What You Need to Know About Mandatory Beneficial Ownership Reporting Requirements Coming Soon

By January 1, 2022, the U.S. Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) will publish regulations regarding mandatory beneficial ownership reporting requirements (Reporting Requirements) as…more

Anti-Corruption, Beneficial Owner, Corporate Transparency Act, FinCEN, Regulatory Requirements

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Brian Clark

That’s All Capital Gain Right? Income Taxes and Intellectual Property Monetization

Intellectual property (“IP”) is typically monetized either by sale or (royalty generating) license agreements. The Code often allows sales to be taxed at preferential capital gains rates while simple royalties are ordinary…more

Capital Gains, Digital Assets, Intellectual Property Protection, Internal Revenue Code (IRC), IRS

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Cleveland Clinton

Live-In Mom Killed Daughter’s Father: Her Rights to the Child’s Inheritance?

Kittie started dating her daughter’s boyfriend Butch when he was 17 years old. They apparently dated for over twenty years, during which time Kittie purchased him a house to “use.” Butch later moved into the house with his…more

Asset Management, Beneficiaries, Common Law Marriage, Constructive Trusts, Estate Claims

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David Coon

Ending Corporate Greed Act & Build Back Better Act – Two Proposals for Increasing Revenue

On March 25, 2022, Senator Bernie Sanders (I-VT) introduced a new bill, “Ending Corporate Greed Act”, which coincides close in time with the release of Treasury’s Green Book, “General Explanations of the Administration’s Fiscal…more

Corporate Taxes, Green Book, Profits, Proposed Legislation, Regulatory Agenda

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Stephen Cooney

Who Owns Produced Water in Texas?

In Cactus Water Services LLC v. COG Operating, LLC., a divided Texas court of appeals answered the question this way: The oil and gas producer prevails over the purchaser of the surface owner’s right to own and sell produced…more

Infrastructure, Oil & Gas, Surface Owner, Texas, Water

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Justin Cowan

Arbitration Over Offshore Leases Does Not Warrant Lawsuit Dismissal

Just because parties agree that disputes over a contract will be subject to binding arbitration doesn’t mean there won’t be wrestling at the courthouse beforehand. In LLOG Exploration Offshore, LLC v. Samson Contour Energy E&P,…more

Arbitration, Arbitration Agreements, Contract Disputes, Contract Terms, Mineral Leases

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Ruth Ann Daniels

Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act – Five Key Takeaways

On March 3, 2022, President Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the “Act”), prohibiting employers from enforcing predispute arbitration agreements and class…more

#MeToo, Arbitration, Arbitration Agreements, Biden Administration, Employer Liability Issues

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Kevin Davidson

Texas Community Property Law and How to Plan Around it

Jack Bux and his high school sweetheart, Diane, have been married a few years, but the pandemic has taken its toll on their relationship, and they could soon be parting ways…more

Business Valuations, Community Property, Division of Assets, Divorce, Family Businesses

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Chris Davis, CPA

Deep in the Heart of Privacy: Understanding the Texas Data Privacy and Security Act's Impact on Businesses

On May 28, 2023, the Texas Legislature passed the Texas Data Privacy and Security Act (TDPSA). Once this law becomes effective on July 1, 2024, Texas will become the tenth state to adopt a consumer data privacy law. This Texas…more

Consumer Privacy Rights, Cybersecurity, Data Management, Data Privacy, Data Protection

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Chance Decker

OSHA’s New Guidance for the Energy Arena

The Occupational Safety and Health Administration (OSHA) recently issued guidance for oil and gas industry workers and employers in light of the increased risk of workplace exposure to COVID-19…more

Coronavirus/COVID-19, Infrastructure, Occupational Exposure, Oil & Gas, OSHA

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Christian Dewhurst

Texas Legislature Reduces Statute of Repose for Residential Homebuilders

In residential construction, the recent legislative amendments to Chapter 27 of the Texas Property Code (the Residential Construction Liability Act or the “RCLA”) have garnered significant attention in the industry, and…more

Construction Contracts, Construction Defects, Construction Project, Express Warranty, Housing Developers

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William (Bill) Drabble

The Law of Booby Traps in Texas for Those Left Home Alone

The rule in Texas (and other states) is that setting a booby trap is permissible if and only if the facts are such that the property owner could have used same force and inflicted the same injury had he been present in person…more

Bodily Injury, Deadly Force, Gross Negligence, Property Owners, Self-Defense

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David Earhart

SEC Approves Nasdaq Board Diversity Proposal

On August 6, 2021, the Securities and Exchange Commission (the “SEC”) approved the board diversity rule proposed by the Nasdaq Stock Market LLC (“Nasdaq”) mentioned in our previous article (the “Board Diversity Rule”). Nasdaq…more

Board of Directors, Corporate Governance, Disclosure Requirements, Diversity and Inclusion Standards (D&I), LGBTQ

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Julia Edwards

Most-Favored-Nations Clause Costs Lessee

This “most-favored-nations” clause in three oil and gas leases on land in LaSalle County, Texas, was at issue in EP Energy E&P Co., L.P. v. Storey Minerals, Ltd. ..…more

Bonuses, Contract Terms, Mineral Leases, Most-Favored Nations, Oil & Gas

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London England

Federal Court Distinguishes Devon v. Sheppard

Producers disappointed by the Supreme Court’s holding in Devon Energy Production v. Sheppard might have reason to feel vindicated. The question in HL Hawkins Jr., Inc. v. Capitan Energy Inc. et al. was whether producer Capitan…more

Contract Terms, Devon Energy Production v Sheppard, Gross Proceeds, Mineral Extraction, Mineral Leases

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Katie English

Does it Matter if a Deed Correction is Material?

McCabe Trust v. Ranger Energy LLC, is the consequence of failing to comply with the Texas Property Code when correcting real property conveyances…more

Deeds, Energy Sector, Foreclosure, Mineral Leases, Mortgages

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Timothy Fandrey

Missing Annual Franchise Tax Reports Can Have Big Consequences

A corporate client of the firm was recently sued for breach of contract and other violations. However, the company manager found himself facing a personal liability allegation for the company debts…more

Breach of Contract, Corporate Taxes, Debt, Failure-to-File, Franchise Taxes

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Marcus Fettinger

Fifth Circuit Tells the Oil Patch That a Day Rate is Not a Salary

Under the Fair Labor Standards Act, what is required for an employee to be exempt from overtime pay? Ordinarily, it’s a guaranteed minimum salary. As the Department of Labor has explained, being paid on a “salary basis” means an…more

Day-Rate Pay, Employment Litigation, Exempt-Employees, Fair Labor Standards Act (FLSA), Highly Compensated Employees

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Alexis Foster

Operator: How Would You Like to Pay Twice For That Pipe Delivery?

Thanks to the power of the trucking lobby, the prevailing policy on the question of who wins and who loses if a carrier of goods goes unpaid favors the carrier over the broker, shipper, consignor and consignee…more

Bills of Lading, Energy Projects, Freight Forwarding, Oil & Gas, Payment Terms

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Ryan Frankel

Coronavirus and the Energy Industry: Drilling into Force Majeure Clauses

Many oil and gas contracts – leases and JOAs for example – have force majeure clauses. The purpose is to allow contracting parties to suspend or terminate performance when certain circumstances arise that are beyond their…more

Breach of Contract, Business Interruption, China, ConocoPhillips, Contract Drafting

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Rachel Freeman

Proposed Revisions To The Anti-Kickback Regulatory Discount Safe Harbor: What Does This Mean For The Drug Industry And For Your Drug Prices In 2020?

Continuing the Trump administration’s efforts to lower drug prices and reduce patient out-of-pocket costs, on February 6,2019, the U.S. Department of Health and Human Services Office of Inspector General (“HHS”) released a much…more

Anti-Kickback Statute, Department of Health and Human Services (HHS), Drug Pricing, Health Care Providers, MCOs

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David Gair

Exxon’s Attempt to Create New Sale/Lease Tax Law Fails

The principal contention in the tax refund case of Exxon v. United States was whether certain mineral related transactions between Exxon and the countries of Qatar and Malaysia were sales or leases. Originally Exxon treated the…more

Corporate Taxes, Exxon Mobil, Gas Royalties, Income Taxes, IRS

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Fred Gaona III

Department Of Labor Proposes Rule Change To FLSA’s “Regular Rate”

On March 28, 2019, the Department of Labor (DOL) announced a proposed rule change to amend regulations that define an employee’s “regular rate” under the Fair Labor Standards Act (FLSA). Generally, the FLSA requires overtime pay…more

Department of Labor (DOL), Fair Labor Standards Act (FLSA), Over-Time, Proposed Rules, Rate of Pay

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Joseph Goddard

Uncharted Territory For Retail Tenants And Landlords: Factoring Online Returns Into Gross Sales Calculations

With the rise of e-commerce, declining foot traffic in malls and shuttering department stores,retail landlords and brick and-mortar tenants have faced a wave of challenges in recent years. As a result, both landlords and tenants…more

Brick-and-Mortar Stores, Commercial Leases, Commercial Tenants, Landlords, Real Estate Development

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Niloufar (Nikki) Hafizi

The TCPA Revisions Are Good for (Not Only) the Oil Business

As mentioned last week, the 86th Legislature amended the Texas Citizens Participation Act, Texas’ Anti-SLAPP law and defendants’ go-to weapon of destruction in a diverse range of cases…more

Anti-SLAPP, Breach of Contract, Frivolous Lawsuits, Harassment, Litigation Strategies

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Darien Harris

Operator Escapes Liability For a Gas Kick and Resulting Fire

The Texas Civil Practices and Remedies Code, Chapter 95, limits a property owner’s liability when an independent contractor hired to construct, repair, renovate or modify an improvement to the owner’s property brings a…more

Negligence, Oil & Gas, Personal Liability, Property Improvements, Property Owners

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Mauri Whitacre Hinterlong

Executive Right Holder Liable for Refusing to Lease

In resolving disputes among the mineral interest family, there is no bright-line rule delineating the duty of the executive right holder. In Texas Outfitters Limited v. Nicholson, the Texas Supreme Court explained why. The Court…more

Contract Disputes, Contract Terms, Mineral Leases, Mineral Rights, Oil & Gas

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Randy Holcombe, CPA

Increased Scrutiny Surrounding Noncompete Agreements During the Pandemic

Since the current economic downturn began in February 2020 as a result of the COVID-19 pandemic, noncompete agreements have become increasingly scrutinized nationwide, and courts have become more reluctant to enforce them…more

Employer Liability Issues, Employment Contract, Former Employee, Hiring & Firing, Non-Compete Agreements

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Vernon Howerton, Jr.

Navigating the Proposed Elimination of Employee Non-Compete Agreements

If you have been around Texas construction in the past decade, you’ve no doubt heard about a foreman shopping his crew around. You’ve probably worried about a key superintendent or project manager taking his skills to your…more

Employer Liability Issues, Employment Contract, Federal Trade Commission (FTC), Former Employee, Hiring & Firing

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Lynsey Hyde

Delaware: A Confirmed Pro-Sandbagging Jurisdiction

In an opinion of significance to M&A Practitioners, the Delaware Court of Chancery recently made it clear that Delaware law allows a buyer in an acquisition to “sandbag” a seller if the acquisition agreement allows for…more

Acquisition Agreements, Asset Purchase Agreements, Breach of Contract, Buyers, Contract Negotiations

See all updates »

Jonathan Hyman

Midstream Dedications – Colorado Bankruptcy Court Levels the Playing Field

Until Monarch Midstream v. Badlands Energy, midstream companies facing rejection of their contracts in a producer’s bankruptcy were left with Abraham Lincoln’s least favorite negotiating option: If the both law and the facts are…more

Asset Protection, Chapter 11, Commercial Bankruptcy, Contract Terms, Covenants that Run With the Land

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Larry Jones

Asking the IRS to Abate Penalties

All kinds of penalties are being assessed by the Internal Revenue Service (IRS) against taxpayers, and more can be expected in the future. In 1954 there were 13 penalties in the Internal Revenue Code, and now there are more…more

Income Taxes, Internal Revenue Code (IRC), IRS, Tax Abatement, Tax Liability

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Russell Jumper

The Storm After the Storm

Just as the Texas coast assessed the magnitude of Hurricane Harvey’s damage, Hurricane Irma was taking shape in the Atlantic. Fewer than two weeks later, Irma would crash into the Florida Keys. Estimates put Harvey and Irma’s…more

Construction Contracts, Construction Industry, Contract Terms, Hurricane Harvey, Hurricane Irma

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Preston Kamin

Coronavirus and the Energy Industry: Drilling into Force Majeure Clauses

Many oil and gas contracts – leases and JOAs for example – have force majeure clauses. The purpose is to allow contracting parties to suspend or terminate performance when certain circumstances arise that are beyond their…more

Breach of Contract, Business Interruption, China, ConocoPhillips, Contract Drafting

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Chad Kell

Delaware Court Provides Clarity Regarding Anti-Bootstrapping Rule

On January 27, 2022, in Levy Family Investors, LLC v. Oars + Alps LLC the Delaware Court of Chancery (the “Court”) released a memorandum opinion providing clarity with regard to Delaware’s infamous “Anti-Bootstrapping Rule”…more

Acquisition Agreements, Bootstrapping, Breach of Contract, Corporate Sales Transactions, Delaware General Corporation Law

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Kristen Kelly

Texas Supreme Court Opinion Has Companies Double Checking Contractual Insurance Obligations

On February 15, 2019, the Texas Supreme Court issued its opinion in Exxon Mobil Corporation v. The Insurance Company of the State of Pennsylvania (ICSOP) reversing the First Court of Appeals and finding that ICSOP had waived…more

Appeals, Contract Terms, Endorsements, Energy Sector, Exxon Mobil

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Patrick Kelly

Preparing Contracts for Hurricane Season – Force Majeure

The recent derecho storm caused severe damage throughout Houston and the surrounding area. The intense winds and flash flooding served as a costly lesson to many contractors and project owners. With the expected active hurricane…more

Construction Industry, Construction Project, Contractors, Force Majeure Clause, Hurricane Season

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Michael Kelsheimer

Is Your Construction Business Prepared and Protected for ICE Undocumented Worker Audits?

Understand and navigate the government’s amplified focus on undocumented workers to protect your business from escalating fines, jail time, delay damages and back-charges Originally Published on ForConstructionPros.com…more

Business Interruption, Construction Industry, Construction Workers, Deportation, Employer Liability Issues

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Dan Kroll

Carried Interest Taxation: Update on Final Regulations and Potential Legislative Changes

In January 2021, the U.S. Department of Treasury and the Internal Revenue Service released final regulations (the Final Regulations) under Section 1061 of the Internal Revenue Code of 1986, as amended (the Code). Code Section…more

Biden Administration, Capital Gains Tax, Carried Interest Tax Rates, Income Taxes, Internal Revenue Code (IRC)

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Trevor Lawhorn

City of Dallas Owes $33+ Million for Drilling Permit Denials

If you have ever wondered how many ways a cocktail of stupidity*, treachery and feckless government can inflict financial harm on the undeserving, including the citizens the feckless government leaders are supposed to serve, see…more

Contract Terms, Critical Infrastructure Sectors, Inverse Condemnation, Mineral Exploration, Mineral Extraction

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Jeff Leach

The 86H Texas Legislative Session: A Grandslam For The Texas Construction Industry

After meeting for 140 days at the Capitol, Texas Legislators adjourned the 86th Legislative Session on May 27th, 2019. For the construction industry as a whole, many are saying that the 86th Legislative Session was one of the…more

Construction Contracts, Construction Defects, Construction Litigation, Contingency Fees, Damages

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David Leonard

Lease Perpetuated Beyond Primary Term Without Production in Paying Quantities

If perpetuation of a mineral lease beyond the primary term is contingent upon continuous operations, do traditional notions of “production in paying quantities” always matter? Spoiler: No…more

Appeals, Contract Terms, Mineral Extraction, Mineral Leases, Mineral Rights

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Jacob "Jake" Lewis

Increased Scrutiny Surrounding Noncompete Agreements During the Pandemic

Since the current economic downturn began in February 2020 as a result of the COVID-19 pandemic, noncompete agreements have become increasingly scrutinized nationwide, and courts have become more reluctant to enforce them…more

Employer Liability Issues, Employment Contract, Former Employee, Hiring & Firing, Non-Compete Agreements

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David Lisch

What’s To Know About the Defend Trade Secrets Act of 2016

Congress has passed the Defend Trade Secrets Act of 2016 and the president is expected to sign it into law. The DTSA allows suits in federal court for misappropriation of trade secrets. Before the DTSA, most litigants would sue…more

Asset Seizure, Defend Trade Secrets Act (DTSA), Economic Espionage Act, Energy Sector, Ex Parte

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Amy Lott

Delaware: A Confirmed Pro-Sandbagging Jurisdiction

In an opinion of significance to M&A Practitioners, the Delaware Court of Chancery recently made it clear that Delaware law allows a buyer in an acquisition to “sandbag” a seller if the acquisition agreement allows for…more

Acquisition Agreements, Asset Purchase Agreements, Breach of Contract, Buyers, Contract Negotiations

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Isreal Miller

Missing Annual Franchise Tax Reports Can Have Big Consequences

A corporate client of the firm was recently sued for breach of contract and other violations. However, the company manager found himself facing a personal liability allegation for the company debts…more

Breach of Contract, Corporate Taxes, Debt, Failure-to-File, Franchise Taxes

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Kelley Clark Morris

“Provisional Authority” to Control Executive Rights Not Assignable

Geary v. Two Bow Ranch Limited Partnership* is an example of the havoc an unusual contract provision can create…more

Contract Terms, Mineral Leases, Mineral Rights, Oil & Gas, Warranty Deed

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Robbie Morris

Texas Supreme Court Opinion has Buyers Checking the Language in their Deeds

In a closely watched case, the Texas Supreme Court (the "Court") held that the special warranty language used in a special warranty deed “qualifies” an implied covenant that the person conveying the land owns what he/she is…more

Contract Terms, Covenants that Run With the Land, Deeds, Implied Covenants, Real Estate Market

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Travis Nadalini

Long-Running Texas Boundary Dispute Continues

Ellison v. Three Rivers Acquisition LLC et al., on remand from the Texas Supreme Court, is the third round of a boundary dispute between mineral lessees in Irion County. For the history of Ms. Ellison’s odyssey from court…more

Adjacent Property Owners, Article III, Breach of Contract, Business Disputes, Commercial Litigation

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Brock Niezgoda

2021 TBOC Changes: What Does This Mean for Texas Partnerships, Corporations, and LLCs?

The Texas Legislature, during its 87th Regular Session, passed several bills with direct implications for Texas partnerships, corporations, and limited liability companies. Below are some of the key changes for Texas entities,…more

Business Codes, Business Formation, Corporate Governance, Corporate Sales Transactions, Incorporation

See all updates »

Trenton Patterson

What’s New in the World of Stimulus Relief: A Discussion of American Rescue Plan Act

Since arriving in the United States the Coronavirus pandemic has taken a devastating toll on nearly every aspect of our economy. Industries such as construction have faced new hardships and challenges with workplace safety,…more

American Rescue Plan Act of 2021, Biden Administration, Broadband, Construction Project, Coronavirus/COVID-19

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Jennifer Perry

Proposed Revisions To The Anti-Kickback Regulatory Discount Safe Harbor: What Does This Mean For The Drug Industry And For Your Drug Prices In 2020?

Continuing the Trump administration’s efforts to lower drug prices and reduce patient out-of-pocket costs, on February 6,2019, the U.S. Department of Health and Human Services Office of Inspector General (“HHS”) released a much…more

Anti-Kickback Statute, Department of Health and Human Services (HHS), Drug Pricing, Health Care Providers, MCOs

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Ralph Perry-Miller

Dallas Court Of Appeals Clarifies Where To Bring Injunction Suits

The Dallas Court of Appeals recently held that employers can choose where to sue former employees who have breached their covenants not to compete. In re Ross, No. 05-18-01052-CV, 2018 WL 6695596 (Tex. App.—Dallas Dec. 20, 2018,…more

Appeals, Employment Litigation, Injunctions, Non-Compete Agreements, Restrictive Covenants

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David Peterman

Delaware Court Provides Clarity Regarding Anti-Bootstrapping Rule

On January 27, 2022, in Levy Family Investors, LLC v. Oars + Alps LLC the Delaware Court of Chancery (the “Court”) released a memorandum opinion providing clarity with regard to Delaware’s infamous “Anti-Bootstrapping Rule”…more

Acquisition Agreements, Bootstrapping, Breach of Contract, Corporate Sales Transactions, Delaware General Corporation Law

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Lindsey Postula

Commercial Lease Assignments: A Tale Of Two Leases And Landlord’s Right To Recapture

An Overview of Assignment Rights - Commercial leases typically contain standard protections for landlords that may be potential pitfalls for tenants seeking to assign or transfer interests in a lease. A lease recapture…more

Commercial Leases, Commercial Tenants, Contract Negotiations, Contract Terms, Landlords

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Cindy Pridgen

Left in the Cold: Terminating Merger Agreement that Eliminates Liability for Post-Termination Claims Means What It Says

The ruling of the Delaware Court of Chancery in Yatra Online v. Ebix highlights the need for M&A practitioners to exercise care when drafting termination and remedies provisions in merger agreements and other contracts and to…more

Breach of Contract, Contract Drafting, Contract Terms, Covenant of Good Faith and Fair Dealing, Implied Covenants

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Graham Quinn

Preparing Contracts for Hurricane Season – Force Majeure

The recent derecho storm caused severe damage throughout Houston and the surrounding area. The intense winds and flash flooding served as a costly lesson to many contractors and project owners. With the expected active hurricane…more

Construction Industry, Construction Project, Contractors, Force Majeure Clause, Hurricane Season

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Sonya Reddy

Big Damages in a Texas Trade Secret Case

Defendants accused of stealing trade secrets often claim that publicly available information can’t constitute a trade secret. Sometimes yes, but mineral ownership that can be determined from the public record only after lengthy,…more

Breach of Contract, Confidentiality Agreements, Economic Loss Doctrine, Mineral Rights, Misappropriation

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James Reed, Jr.

Market Value at the Well Trumps Free-Use Clause

The common thread throughout the myriad oil and gas royalty cases decided recently by Texas courts could be “harmony”, the reading of different, seemingly conflicting, contract provisions so as to give meaning to all…more

Contract Terms, Fair Market Value, Gas Royalties, Mineral Leases, Oil & Gas

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G. Tomas Rhodus

Politically-Motivated Criminal Cases Based on Perjured Testimony Really DO Happen! Even if You Work for the IRS

Today’s news media is full of stories about supposed malicious allegations, unfounded criminal investigations and indictments based on perjury. Regardless of our political leanings, all of us should hope that such things…more

Civil Conspiracy, Criminal Investigations, Criminal Prosecution, Discretionary Functions, False Evidence

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Matt Roberts

Breaking Up Is Not Always Hard To Do—Consider A Tax-Free Corporate Division

Disagreements happen. In the corporate context, one or more shareholders may share a different vision for the company than the other shareholders. Or, there may be acrimony amongst the shareholders for other reasons, as can…more

Corporate Governance, Corporate Taxes, Family Businesses, Income Taxes, Reorganizations

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Cole Robinson

Three's A Cowd: Texas Court Confirms That Material Correction Instruments Must Be Executed By Heirs, Successors, Or Assigns In Yates Energy Corporation V. Broadway National Bank

In a case of first impression, on December 19, 2018, the San Antonio Court of Appeals held that Section 5.029 of the Texas Property Code (the “Material Correction Statute”) requires that correction instruments be executed by a…more

Deeds, First Impression, Oil & Gas, Royalties

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Grace Rollinger

Potential Pitfalls in Waiving or Retaining Attorney-Client Privilege over Pre-Closing Communications in Asset Sales

In DLO Enterprises, Inc. v. Innovative Chemical Products Group, LLC, the Delaware Court of Chancery (the “Court”) in an unpublished opinion analyzed whether the asset purchase agreement included the sale to the buyer of the…more

Attorney-Client Privilege, Corporate Sales Transactions, Pre-Closing Issues, Private Equity, Purchase Agreement

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Gregory Sampson

Trust Protector or Trust Defector? Five Hazards to Avoid in Appointing a Trust Protector

Unanticipated changes in the law or circumstances may derail a careful plan to preserve a client’s intent to transfer wealth through trusts. A “trust protector” originated from a need to protect offshore trusts from…more

Beneficiaries, Estate Planning, Fiduciary, Transfer of Assets, Trust Protector Actions

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Charles Sartain

Fraud in the Oil Patch the Modern Way

Once upon a time a good way to commit oil patch theft was to back a truck up to the tank battery in the middle of the night, fill ‘er up, and drive off into the darkness. In re: Black Elk Energy Offshore Operations LLC shows…more

Bankruptcy Code, Creditors, Debtors, Fraud, Fraudulent Transfers

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Ryan Sears

Three's A Cowd: Texas Court Confirms That Material Correction Instruments Must Be Executed By Heirs, Successors, Or Assigns In Yates Energy Corporation V. Broadway National Bank

In a case of first impression, on December 19, 2018, the San Antonio Court of Appeals held that Section 5.029 of the Texas Property Code (the “Material Correction Statute”) requires that correction instruments be executed by a…more

Deeds, First Impression, Oil & Gas, Royalties

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Joshua Smeltzer

Taxpayer’s Refund Claim Survives Despite Lost Documents

In one of my favorite legal movies, A Few Good Men, the lack of evidence on a particular point is brought up when Demi Moore’s character says to Tom Cruise’s character that he knows that something is true. Tom Cruise’s character…more

Business Losses, CARES Act, Documentation, Evidence, Tax Litigation

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Stephanie Snyder-Zuasnabar

Broad Form Indemnities in Construction Contracts (UPDATED)

Broad form indemnities are common in Texas construction contracts, even though indemnifying someone for their own negligence is a tough pill to swallow. …more

Construction Contracts, Construction Project, Contract Terms, Indemnity Agreements, Liability

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Sahrish Soleja

Delaware Bankruptcy Court Treats Royalty Owner Claims as Unsecured

If you are a royalty owner and have questions about how your claim is likely to be treated when your lessee/operator goes into bankruptcy in Delaware, In re MTE Holdings LLC is a significant case…more

Bankruptcy Court, Commercial Bankruptcy, Mineral Leases, Oil & Gas, Proof of Claims

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Skyler Stuckey

Texas Supreme Court Deems Continuous Development Clause Ambiguous

In Endeavor Energy Resources, L.P. v. Energen Resources Corp. et al. the Supreme Court of Texas construed a continuous development clause in an oil and gas lease covering 11,300 acres in Howard County. After the primary term,…more

Ambiguous, Contract Drafting, Contract Interpretation, Contract Terms, Critical Infrastructure Sectors

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Rusty Tucker

Texas Court Applies Amended Citizens Participation Act to a Lease Dispute

Howard, et al. v. Matterhorn Energy, LLC, et al. [6th Dist.] May 4, 2021 considered the Texas Citizens Participation Act as amended, effective on September 1, 2019…more

Breach of Contract, Contract Terms, Lis Pendens, Mineral Leases, Mineral Rights

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Joe Virene

Texas Legislature Expands Suspension Rights Under the Prompt Pay Acts

The private and public prompt pay acts both provide contractors and subcontractors with the right to stop work if an owner or upstream contractor fails to pay an undisputed amount. With H.B. 3485, the Texas legislature has now…more

Construction Contracts, Construction Disputes, Construction Project, Contract Terms, Contractors

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J.P. Vogel

Samsung’s $45 Billion Texas Chipmaking Facility: A Goldmine and Minefield for Contractors

Texas is currently experiencing one of the largest, most significant construction development projects with Samsung Semiconductor Chipmaking Facility in Taylor, Texas. According to a recent article by Justin Sayers, posted in…more

Big Tech, Business Development, Construction Project, Construction Workers, Economic Growth

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Jeremy A. Walter

Suit Over a Sand Pit Spawns Citizens Participation Act Claim

Ark Sand Co., Inc. v. Bradley Demolition & Constr., LLC, et al has the appearance of a Hatfield and McCoy-grade grudge match. As often happens when litigation gets personal, the Texas Citizens Participation Act was invoked. The…more

Business Disputes, Business Litigation, Leases, Oil & Gas, Right to Petition the Government

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Savannah Warner

Key 2021 Amendments to Delaware Business Entity Statutes

This article summarizes key amendments to the Delaware General Corporation Law (“DGCL”), Delaware Limited Liability Company Act (“DLLCA”), Delaware Revised Uniform Partnership Act (“DRUPA”) and Delaware Revised Uniform Limited…more

Alternative Entity Laws, Contract Terms, Corporate Governance, Delaware General Corporation Law, Delaware Limited Liability Company Act

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Brian Waters

Basic Indemnity and Insurance Considerations in the Construction Context

Construction companies spend countless hours drafting agreements requiring indemnification and insurance for their projects. These obligations are prevalent for all tiers of construction industry members— from subcontractors and…more

Commercial Insurance Policies, Construction Contracts, Indemnity, Indemnity Insurance, Insurance Claims

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Lydia Webb

Delaware Bankruptcy Court Treats Royalty Owner Claims as Unsecured

If you are a royalty owner and have questions about how your claim is likely to be treated when your lessee/operator goes into bankruptcy in Delaware, In re MTE Holdings LLC is a significant case…more

Bankruptcy Court, Commercial Bankruptcy, Mineral Leases, Oil & Gas, Proof of Claims

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Ethan Wood

Pipeline Prevails Over Governmental Entity in Condemnation Dispute

A pipeline company condemning property of a governmental entity? That’s something you don’t see every day. Score a win for “big pipe” against “big government”. In Harris County Fresh Water Supply District No. 61 v. Magellan…more

Condemnation, Easements, Eminent Domain, Energy Projects, Government Entities

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Paul Yale

Climate Change 101 for Landmen and Lawyers: Uninhabitable Earth or False Alarm? (Part 5)

This is the conclusion of a five part series reviewing False Alarm, How Climate Panic Costs us Trillions, Hurts the Poor, and Fails to Fix the Planet, by Bjorn Lomborg…more

Carbon Emissions, Carbon Taxes, Climate Change, Energy Policy, Environmental Policies

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Drew York

Defining a Win in Litigation: Mitigating Losses

In this series on defining wins in litigation, we’ve talked about defining the goals and strategies at the outset, clear and open communication, and the benefits of resolving a dispute both financially and reputationally. The…more

Damages, Litigation Strategies, Loss Mitigation, Mitigation, Punitive Damages

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