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.

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.

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.

Associate Daniel J. Scime came to SHJ in May 2022 from Skadden, Arps, Slate, Meagher & Flom’s Chicago office. Four months into his tenure, he sat down with us to discuss his goals, expectations, and how he’s settling in.

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.

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.

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.

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.

In the wake of a recent landmark decision by a federal appellate court in regard to where climate change lawsuits should be litigated, the U.S. Court of Appeals for the Fourth Circuit has provided further guidance as to how federal courts may address attempts to have these cases litigated at the federal level. SHJ senior counsel Brandon Winchester discusses.

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.

Can litigants request a jury trial in federal bankruptcy court? According to managing partner Andy Hicks and associates Bryan Zubay and James Keefe, it’s a viable option worth considering.

On Tuesday, February 8, 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. SHJ senior counsel Brandon Winchester outlines the decision.

The past year saw several attempts to apply new applications of the public nuisance doctrine to the opioid crisis, thanks to litigators seeking to expand the definition to areas outside traditional applications. Senior counsel Brandon Winchester reviews key developments in Oklahoma, Ohio, and California.

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.

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.

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.

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.

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.

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.

Cyberattacks on the nation’s critical infrastructure are becoming more frequent, more severe, and more dangerous. This article outlines crucial steps businesses can take to insulate themselves from liability before a cyberattack occurs.

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.

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.

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.

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.