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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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Trial Firms Win Big With E-Discovery

Senior counsel Matt Davis supervises SHJ’s e-discovery efforts in addition to his litigation work for the healthcare and energy industries. Here, he talks about the genesis of his role, the future of the firm’s e-discovery practice, and why clients are increasingly choosing small litigation firms over Big Law.

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On the Right Track: From BigLaw to Boutique

Partner Persis Dean joined SHJ in 2015 after six years as in-house counsel for Exxon Mobil Corporation and three at Vinson & Elkins. Recently elected to the partnership, she is poised to help lead the firm through its most rapid growth period yet. Here, Dean discusses what it’s like to be a working parent in corporate law, her approach to mentoring, and the benefits of boutique firm life.

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Is a Boutique Litigation Firm Right for You?

As law firm hiring season shifts into high gear, top students are faced with a plethora of choices. In addition to the traditional on-campus interviews (or their Zoom equivalents) by Big Law recruiting departments, a growing number of boutique litigation firms are offering competitive packages—including top-tier salaries and benefits—to prospective summers and first-years. Hiring partner Adam Dinnell of Houston-based Schiffer Hicks Johnson talks candidly about the pros and cons of boutique firm life.

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Are Public Nuisance Claims the Next Super Torts?

Public nuisance claims have long been understood to rest on “an unreasonable interference with a right common to the general public.” Typically, litigation sought recovery for damages in connection with (among other examples) interference in land use and public spaces, polluting public waterways, or making too much noise.

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Are SPACs Going to Lose Their Safe Harbor?

On May 21, the U.S House Committee on Financial Services released draft legislation excluding all SPACs from the safe harbor for forward-looking statements provided in the Private Securities Litigation Reform Act of 1995 (PSLRA). SHJ partner Varant Yegparian and Jon Janes, a vice president at insurance brokerage firm Woodruff Sawyer, teamed up to assess the increased potential liability that could befall SPACs, their targets, and their respective directors and officers should the legislation be passed.

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Will Chemical Damage Kill the Texas Wine Industry?

While the recent suit brought by 57 Texas High Plains wine grape growers against Bayer-Monsanto and BASF is receiving extensive press coverage, it is not clear whether the Texas wine industry can survive the onslaught. Some vineyards have experienced a 90 percent reduction in their grape harvest, which brings in more than $2,500 a ton.

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SPACs Stand or Fall on Their Disclosures

The special purpose acquisition company (SPAC) boom has hit a major roadblock in the form of faulty disclosures. Given the centrality of the SPAC’s disclosures to a plaintiff’s claims, SPACs need to take special care in crafting their disclosures going forward. This article will examine how SPACs can use guidance issued by the SEC to craft robust disclosures that will weaken a plaintiff’s claims.

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Who Qualifies as a Healthcare Provider?

As healthcare becomes more technology-driven, the traditional understanding of what constitutes a “heathcare provider” has been blurred. Brandon Winchester and Andy Hicks examine protections afforded by the Texas Medical Liability Act, which can be used as an important tool for medical technology companies facing possible liability related to the provision of medical care.

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How to Prepare for the Deluge of SPAC Litigation

Transactions involving special purpose acquisition companies (SPACs) have risen at a meteoric rate in recent months. Partner Varant Yegparian examines key legal issues that could arise in the event of SPAC litigation and provides sponsors—including private equity firms and investment banks—with a general outline of steps that may mitigate legal exposure.

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A Guide to Texas Trade Secret Laws

This article focuses on a spate of recent decisions from the Texas federal courts to show how the two laws can impact a trade secret dispute and how a party in litigation can maneuver them towards a favorable resolution.

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Three Steps Oil and Gas Producers Should Take Now

In the wake of President Joe Biden’s executive order revoking the Keystone XL pipeline permit, oil and gas producers are bracing for additional actions. Producers and others shipping oil and gas on potentially affected pipelines would be well served to apprise themselves of their rights and obligations as soon as possible.

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The Keystone XL Pipeline: What Happens Next?

On January 20, 2021, President Joe Biden signed an executive order revoking the presidential permit for the Keystone XL pipeline border crossing. While this is not the first time a U.S president has issued such a directive, it may be the final blow for a project that has been in progress for more than a decade.

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McGirt Update: Tax, Environmental, and Energy Implications

Three months on from the Supreme Court’s decision in McGirt v. Oklahoma, the fallout is becoming increasingly clear in Oklahoma—wide-ranging effects on the state’s taxation and environmental regulatory bodies are already emerging. Summer associate Dave Finkel, Andy Hicks, and Adam Dinnell examine the post-McGirt landscape.

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A Practitioner’s Guide to COVID-19-Related Force Majeure Disputes

The predicted wave of force majeure litigation related to COVID-19 has now become reality. Lawsuits are increasingly being filed by parties to contractual disputes and practitioners are increasingly being called upon to evaluate such disputes. This article is intended to provide in-house lawyers and business executives with a guide for evaluating these disputes from their inception.

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Government-Mandated Closures: Who is Liable If Businesses Fail?

As U.S. companies struggle with government-mandated closures—including re-openings followed by rollbacks in states like Texas, Florida, and California—a growing number of businesses, especially in the hospitality and entertainment sectors, are closing their doors for good. In this grim scenario, business owners may be wondering if litigation is possible when government-enforced suspensions cause their businesses to fail.

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Guidance for MSLP Lenders: How to Minimize Litigation Exposure

While the Main Street Lending Program (“MSLP”) was designed to ameliorate economic harm caused by the COVID-19 pandemic, it leaves lenders open to possible litigation exposure if borrowers fail to satisfy their obligations. How can lenders protect themselves and minimize the level of risk?

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