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Supreme Court Takes on the Chevron Doctrine

On January 17, 2024, the Supreme Court heard oral arguments in tandem cases Loper Bright Enterprises v. Raimondo and Relentless, Inc., et al. v. Dept. of Commerce, et al., which ask whether the court should overrule one of its most frequently cited precedents: the Chevron doctrine. SHJ staff attorney Jennifer Cordell explains the doctrine’s history and application, then outlines one of the court’s available paths in addressing the issue of statutory silence.

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Supreme Court Considers Title VII Case That Could Impact Company Diversity Initiatives

Federal courts have long held that Title VII discrimination must consist of material harm or disadvantage. However, on December 6, 2023, the Supreme Court heard oral argument in a Title VII case out of the Eighth Circuit, Muldrow v. City of St. Louis, that could radically lower this threshold – and reshape the landscape of workplace discrimination law entirely. SHJ associate Dave Finkel analyzes the decision’s potential implications, including challenges to employer DEI programs.

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Sackler Family’s Fate in the Supreme Court Is Poised to Transform Texas Bankruptcy Law

On December 4, 2023, the Supreme Court will hear oral argument in a case that may have major implications for bankruptcy law in the Fifth Circuit. While the Fifth Circuit has held that bankruptcy courts may not incorporate third-party releases, this case, Harrington v. Purdue Pharma L.P., et. al., challenges the legality of Purdue’s Chapter 11 bankruptcy reorganization plan on the grounds that the plan exceeds the Bankruptcy Code’s authorization by releasing claims held by non-debtors against other non-debtor third parties without the claimants’ consent. Partner Marc Tabolsky and associate Adam Greiner discuss the case’s background as well as its potential to reverse current Fifth Circuit precedent that denies the use of releases between non-debtors in Chapter 11 reorganization plans.

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Texas Supreme Court to Review Rejected Forced Pooling Applications

On June 2, 2023, the Texas Supreme Court agreed to hear Ammonite Oil & Gas Corp. v. Railroad Commission of Texas and EOG Resources, which concerns a state regulator’s rejection of 16 applications submitted by Ammonite to force pool its mineral estate with adjacent wells operated by EOG under the Texas Mineral Interest Pooling Act (MIPA). Now, the court is poised to weigh in on several points regarding the scope and interpretation of the MIPA. Partner Persis Dean and associate Kelly Swanson provide key details of the case as well as its potential implications.

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New Bill Will Streamline Civil Litigation in Texas Court

On Friday, May 12, the Texas Senate passed a bill that would create a specialized business court to oversee complex civil litigation. SHJ senior counsel Katherine Ring provides an overview of key changes proposed by the bill, which aims to streamline the resolution of high-stakes business disputes statewide.

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What Companies Should Know About the Biden Administration’s Antitrust Enforcement Campaign

On July 9, 2021, President Joe Biden signed an executive order calling for stronger enforcement of antitrust laws to promote competition and curtail the consolidation of American industries. Since then, the DOJ has pursued a vigorous campaign of antitrust enforcement, including blocking purportedly anti-competitive mergers and addressing non-merger anti-competitive conduct. SHJ senior counsel Brandon Winchester and associate Kelly Swanson discuss the DOJ’s recent efforts and offer guidance for companies considering a merger in the current antitrust landscape.

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How Should Litigators Establish Evidence in Trade Secret Cases? Part Three: Evidentiary Concerns

Like any other type of litigation, trade secret cases rise or fall on the strength of the evidence that can be put before the factfinder. Yet before a lawyer can focus on what evidence they have to make or defend their case, they must first collect that evidence. With information technology being incorporated into every business at a lightning-fast pace, evidence has accordingly become increasingly complicated to source. The final part of this series outlines best practices for the identification, collection, and preservation of evidence for use in a trade secrets case.

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How Should Litigators Establish Evidence in Trade Secret Cases? Part Two: Damages

As discussed in part one of this series, trade secret litigation presents a minefield of evidentiary challenges. But while the act of misappropriation is often simple enough to demonstrate, calculating the precise value of damages can be extremely difficult. This second article outlines the evidence needed to articulate a legally cognizable damages model.

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How Should Litigators Establish Evidence in Trade Secret Cases? Part One: Liability

Trade secret litigation is set to increase in the coming decades, accelerated by the enactment of the federal Defend Trade Secrets Act (“DTSA”) in 2016. Most cases do not contain direct evidence of stolen secrets, however. Instead, stray pieces of indirect evidence must come together to tell a larger story of theft. Consequently, lawyers handling this type of litigation must take the time to understand its intricacies and machinations, particularly the specific statutory requirements imposed by the uniform trade secrets acts (such as the Texas Uniform Trade Secrets Act, or “TUTSA”) and the evidence that will and will not satisfy these requirements.

A new three-part series by SHJ partner Varant Yegparian examines different concerns regarding evidence in trade secret cases, aiming to shed light on the correlative legal requirements to which this evidence is applied. This first article articulates the legal framework envisioned by TUTSA, addressing the requirements to prove the existence of a trade secret and to establish liability.

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The Sun Has Finally Set on NAFTA: Investor-State Arbitration Under the USMCA

On July 1, 2020, the United States-Mexico-Canada Agreement (USMCA) took effect, replacing the 1994 North American Free Trade Agreement (NAFTA). The USMCA provides a three-year sunset period for investors to submit arbitration claims related to foreign investments established or acquired under NAFTA. Now that the practical deadline of April 1, 2023 has passed, investors can no longer access NAFTA’s dispute resolution mechanism and must file investment claims under the USMCA regime. A new article by SHJ managing partner Andy Hicks and associate Fatima Aslam outlines key changes that investors should look out for.

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Landmark Ruling on Oversight Liability Creates New Risks for Corporate Officers

According to a recent decision handed down by the Delaware courts, corporate officers must now contend with a new avenue of liability: the duty of oversight. Previously, only a company’s board could face personal liability from derivative suits alleging failure to adequately oversee and mitigate the risks relevant to their duties. While courts have formerly held that corporate officers owe the same fiduciary duties of loyalty and care as directors, this decision clarifies that precedent by explicitly tethering officers to a duty of oversight. Senior counsel Brandon Winchester and associate Adam Greiner outline the implications of the decision as well as next steps for organizations seeking to mitigate risk.

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A World Without Non-Competes? What the FTC’s Proposed Ban Means for In-House Counsel

The non-compete—a clause that binds approximately one-fifth of all American workers—may soon be a thing of the past. New guidance from the FTC threatens to abolish the use of non-compete clauses in all but the most limited of circumstances, upending a long-established protection used by countless corporations nationwide. Partner Varant Yegparian and associate Adam Greiner outline the implications of the FTC’s proposed rule and, should it be implemented, offer a path forward for in-house legal departments seeking to minimize damage to their businesses.

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Appellate Courts Provide Guidance on Jurisdiction for Climate Change Lawsuits

In February 2022, the U.S. Court of Appeals for the Tenth Circuit laid down a landmark ruling in a lawsuit brought by a group of Colorado municipalities accusing several energy companies of climate change-related harm. Since then, multiple courts have provided further guidance as to where energy companies should anticipate litigating climate change lawsuits. SHJ senior counsel Brandon Winchester offers an overview of this shifting landscape.

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Causation Issues in PFAS Litigation: Where Did the “Forever” Chemical Come From?

Frequently referred to as “forever chemicals,” per- and poly-fluoroalkyl substances, also known as PFAS, have been subjected to rigorous scrutiny by the EPA, other governments and agencies, and litigants. With some commentators already referring to PFAS as “the mother of toxic torts” and the “next asbestos,” SHJ partner Adam Dinnell and associate Bryan Zubay consider what the future of PFAS litigation might look like—specifically, how parties might attempt to prove or defeat causation.

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The Basics: Implied Covenant of Good Faith and Fair Dealing Under Delaware Law

Under Delaware law, the implied covenant of good faith and fair dealing – intended to ensure that parties deal honestly and fairly with each other when addressing gaps in an agreement – attaches to every contract by operation of law. SHJ managing partner Andy Hicks and associate James Keefe explain when the doctrine can and can’t be used, drawing on several recent cases for context.

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The Importance of “Plain and Unambiguous Language” When Eliminating Fiduciary Duties in Delaware

The Delaware Limited Liability Company Act allows for the fiduciary duties of a member to be expanded, restricted, or eliminated by provisions in the operating agreement of an LLC. If drafters intend to eliminate fiduciary duties, however, this intent must be plain and unambiguous. SHJ managing partner Andy Hicks and associate James Keefe discuss a recent ruling in Delaware’s Chancery Court that illuminates the necessity of this “plain and unambiguous” requirement.

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How Do JOA Exculpatory Clauses Work Under Texas Law? Part Two: The Recent Decision in Bachtell Defines “Activities”

As discussed in part one of this series, a JOA’s exculpatory clause relieves the designated “operator” from liability for certain conduct or activities, but the scope of this relief can vary significantly depending on the words used in the clause. Recently, the Texas Fourteenth Court of Appeals issued an opinion further clarifying the reach of the exculpatory clause in a model JOA. SHJ managing partner Andy Hicks and partner Marc Tabolsky outline the implications of the court’s holding for parties to a JOA under Texas law.

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How Do JOA Exculpatory Clauses Work Under Texas Law? Part One: The Fundamentals

The Joint Operating Agreement (JOA) is often the key contract between parties that have a shared interest in oil and gas exploration, development, and production in a designated area. One of the most contested provisions of any JOA is the exculpatory clause, which can dramatically alter the degree to which an operator can or cannot be held liable under certain facts. SHJ managing partner Andy Hicks and partner Persis Dean break down the fundamentals.

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Exculpation Provisions in LLC Agreements: A Comparison of Delaware and Texas

Case law involving limited liability companies (LLCs) is rapidly evolving. Some states, most notably Delaware, permit LLCs to limit or eliminate liability for breaches of fiduciary duty by an LLC’s members or managers. Other states cabin that ability to varying degrees. Disputes regarding breaches of fiduciary duty can often hinge on the scope of any relevant exculpation provisions in the LLC agreement, and the body of law governing the LLC agreement can materially alter outcomes. Individuals seeking to do business in Texas are likely to encounter LLCs that were organized in Delaware (popular for, among other things, this very reason) and in Texas. In this article, managing partner Andy Hicks and associates Bryan Zubay and James Keefe compare key differences between Delaware and Texas law on LLC exculpation provisions.

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