SJGO Wins for Volunteer Fire Department
SJGO’s Jim Marrow and Steve Rech prevailed in a jury trial over a fire truck that rolled during an emergency response when it collided with a commercial van. SJGO’s clients, a local volunteer fire department and its insurer, sued to recover over $300,000 of damage done to the fire truck. The defendant company countersued for property damage to the van and its driver’s personal injuries. Although the investigating police officer faulted the fire truck driver, SJGO successfully argued that the defendant’s driver negligently failed to yield the right of way to an emergency vehicle. The jury found for SJGO’s clients, awarded the entire amount of damages requested, and rejected the defendant company’s counterclaim for damages. The trial court also adopted the legal precept that, even when the emergency service organization affirmatively sues for damages, the standard of care for emergency responders remains recklessness (as opposed to ordinary negligence). This establishes an important legal principle for emergency responders.
FAIR LABOR STANDARDS ACT
Dick Schwartz recently represented a major oil company in a jury trial of a Fair Labor Standards Act (“FLSA”) claim in Houston. The jury found in favor of our client. The Court entered a take nothing judgment and awarded the oil company its costs. Three issues were tried: 1) whether the plaintiff was exempt under the computer professional exemption, 2) whether the failure to pay overtime was willful, and 3) damages. The jury found the plaintiff was exempt and entitled to no recovery.
ROGER GREENBERG successfully represented a client in the homebuilding industry in an investigation by the Department of Labor (“DOL”) Wage and Hour Division under the Fair Labor Standards Act (“FLSA”). The DOL questioned whether the client’s managers were exempt from the FLSA’s minimum wage and overtime pay requirements. Greenberg submitted evidence to the DOL showing the client’s managers met certain tests regarding their job duties and salary that made them bona fide executive employees under Section 13(a)(1) of the FLSA. The DOL found the executive exemption applicable and thus no violations were found. Also, the DOL investigated the employment relationship of the client’s construction independent contractors. The DOL utilizes a 7-factor economic reality test to distinguish employees from independent contractors. Roger demonstrated that under the factors of the economic reality test, the client’s construction contractors were independent and not employees because of, among other things, the sizable contractor investments in equipment, a lack of control by the client, the independent contractors opportunities for profit and loss, the independent contractors open market competition with others and their degree of independence. The client successfully prevailed, with the DOL agreeing to no finding of liability.
Fifth Circuit Affirms Summary Judgment in TCHRA Case
The United States Court of Appeals for the Fifth Circuit affirmed summary judgment obtained by Monica Oathout on all claims in a Texas Commission on Human Rights Act age discrimination claim filed in the United States District Court, Southern District of Texas, Galveston Division (Judge Greg Costka). The Plaintiff applied for a position with the firm’s client, but was not chosen for the job. The Plaintiff sued the client for age and gender discrimination and sought more than $500,000 in damages for front pay, back pay, and compensatory damages.
At the close of discovery, SJGO moved for summary judgment arguing: (1) that the Plaintiff could not make a prima facie case because she was not qualified for the position sought; and (2) that, even if the Plaintiff did make her prima facie case, SJGO’s client had a legitimate, non-discriminatory reason for not hiring her—it hired a more qualified candidate. The District Court agreed and held that the Plaintiff could not show that the proffered reason for not hiring the plaintiff was a pretext for discrimination. SJGO showed that the Plaintiff had no knowledge of the chosen applicant’s qualifications and, at best, Plaintiff’s qualifications were very weak compared to the person chosen for the job.
The Plaintiff appealed the order granting summary judgment to the Fifth Circuit Court of Appeals. James Marrow, a former appellate court briefing attorney, took the lead in briefing the case for SJGO. On appeal, the Plaintiff argued that the District Court failed to follow the law and applied the wrong legal standard. Plaintiff argued that she established pretext by demonstrating that the reason she was not hired—that a more qualified candidate was hired—was false. In response, SJGO argued that the Plaintiff’s arguments did not raise a fact issue as to the legitimate reason for not hiring the plaintiff. The Fifth Circuit Court of Appeals agreed with SJGO and affirmed the grant of Summary Judgment, reasoning that “none of her arguments call into question the truth of [the] proffered reason—it hired a more qualified candidate.”
Fifth Circuit Affirms Summary Judgment in Race and Gender Discrimination Case under Title VII
The United States Court of Appeals for the Fifth Circuit affirmed summary judgment obtained by Dick Schwartz in a race and gender employment discrimination case filed in the United States District Court, Southern District of Texas (Judge Gray Miller). The plaintiff alleged race and gender discrimination and retaliation under Title VII. SJGO moved for summary judgment on the basis that certain of plaintiff’s claims were time barred, the plaintiff could not make a prima facie case of discrimination because plaintiff failed to present competent summary judgment evidence that other similarly situated non-protected employees were treated more favorably, even if plaintiff made a prima facie case, the firm’s client articulated, and supported with summary judgment evidence, legitimate non-discriminatory reasons for its actions, and plaintiff failed to show retaliation in the manner in which the client paid certain benefits. The District Court granted summary judgment on all claims and plaintiff appealed. The Fifth Circuit affirmed summary judgment in favor of the firm’s client on all claims.
SJGO Women's Network News . . . On October 17, 2013, the group enjoyed an evening of good food, good friends and fine art at Pinot’s Palette in the Galleria area. We each painted our own unique version of “Playful Pansies” shown in the pictures here. We are looking forward to our next event in the Spring. Details to follow soon.
SJGO Women's Network is a forum for professional women in a variety of industries to share experiences, opportunities and successes while participating in professional, social and charitable events. We invite you to share your personal and professional successes and ideas with us on LinkedIn or join us on Facebook.
On March 23, Firm attorney Monica Oathout ran as a team in the Houston Bar Association 28th annual John J. Eikenburg Law Week 8K Fun Run, which raises money for the Center, a United Way agency dedicated to offering people with intellectual disabilities the opportunity to reach their full potential and to contribute to their community. The Firm was a Silver Sponsor of the event.
In February 2013 Heather Kabele presented the paper and covered major issues, open questions, and recent developments in Texas Securities Act litigation, including pertinent comparisons between state and federal securities law, from both the plaintiff's and the defendant's perspective.
Presentation to UT Securities Conference
Roger Greenberg was panelists at the University of Texas School of Law's 2013 Securities Regulation and Business Law conference, along with Bob Craig of Charles River Associates. They presented a paper and panel discussion on the topic A Game of "Gotcha"? Emerging Standards Concerning Preservation (and Spoliation) of Electronically Stored Information to a diverse group including in-house counsel, transactional lawyers, litigators, and government lawyers. The panel addressed recent case law developments with an emphasis on the importance of following up on litigation holds.
Seminar on Avoiding Spoliation of ESI
In February 2013 Roger Greenberg presented a continuing legal education seminar for the Houston Bar Association entitled You Deleted What? How to Meet the Duty to Preserve Electronically Stored Information and Avoid Spoliation of Evidence. The audience included in-house lawyers, outside counsel, a judge, and e-discovery consultants. The panel discussed nationwide trends, where Texas courts may be headed, and emerging best practices for avoiding spoliation.
Summary Judgment in Title VII Case:
Monica Oathout obtained summary judgment on all claims in a Title VII lawsuit from Judge Vanessa Gilmore of the United States District Court, Southern District of Texas. The Plaintiff asserted claims against SJGO's client for hostile work environment, gender discrimination and assault. The Plaintiff sought more than $500,000 in damages for front pay, back pay, and compensatory damages.
Summary Judgment in Trade Secret Case
In a trade secret, covenant not to compete and tortious interference dispute in U.S. District Court for the Southern District of Texas seeking $28 million in damages from the firm's client, the firm obtained a partial summary judgment that certain features of the product were not secret. The client is represented by Roger Greenberg.
Summary Judgment in oil and gas case.
Ed Junell recently obtained a summary judgment on all claims in an oil and gas dispute from Judge Karen K. Brown of the United State Bankruptcy Court, Southern District of Texas. The plaintiff asserted claims against defendants, our clients, for fraud, promissory estoppel, and negligent misrepresentation related to the drilling and alleged investment in an oil and gas prospect. Plaintiff sought more than $5.8 million dollars in damages.
Favorable settlement in early mediation
Monica Oathout, and David Finck obtained a favorable settlement on behalf of SJGO's client, the plaintiff in a construction case. In the fiercely contested dispute, SJGO's client sought damages arising from a $32 million dollar construction contract involving thousands of change orders, spanning several markets and several years. After over one year of venue disputes, the lawsuit was transferred to Texas and SJGO substituted in as counsel. SJGO hit the ground running, culled through hundreds of thousands of documents and put together a strategy to substantiate each change order. Then, prior to depositions, SJGO proposed mediation. At mediation, SJGO used the change order analysis (done without the assistance of experts) to present a solid and compelling case demonstrating why SJGO's client was owed a substantial sum of money and would prevail at trial. After a mediation lasting almost 12 hours, the case settled very favorably for SJGO's client.
Insurance coverage obtained after denial
David Finck successfully obtained coverage for the firm's client after the insurer denied coverage. After the firm filed a Motion for Partial Summary Judgment addressing the duty to defend issue, the insurer agreed to fund the entire settlement with the plaintiff in the underlying claim
David Finck and Jim Marrow successfully defended the firm's client, an oilfield services company, from claims brought by a real-estate developer, who alleged environmental contamination of his property. SJGO filed a motion for summary judgment asserting the property was not contaminated, the developer lacked standing to sue and the developer's claims were time-barred by the statute of limitations. The plaintiff dismissed all claims against the client, without any payment by the company.
Sexual Harassment/Retaliatory Discharge Claim
SJGO defended its client against a former employee who alleged sexual harassment and retaliatory discharge. The plaintiff alleged she had complained about inappropriate remarks made to her in the workplace, was terminated shortly thereafter, and she had medical problems resulting from the stress related to the alleged harassment and discharge. After obtaining and reviewing extensive medical records and email correspondence, we were able to make the case that the medical issues pre-dated the alleged harassment and the plaintiff was not likely to have been offended by the alleged harassing statement. The case settled on favorable terms for the client, who was represented by David E. Finck and James C. Marrow.
Dick Schwartz, Roger Greenberg, Ed Junell and Monica Oathout have been selected in 2012 as Texas' Top Rated Lawyers by ALM for receiving an AV Preeminent rating in Martindale-Hubbell's peer review ratings. An AV Preeminent rating is a significant rating accomplishment - a testament to the fact that a lawyer's peers rank him or her at the highest level of professional excellence. In recognition of this honor these SJGO attorneys will be featured in Texas' Top Rated Lawyers, a special stand alone magazine that will be distributed in the Austin American-Statesman, The Dallas Morning News, Houston Chronicle, San Antonio Express-News and The Wall Street Journal. It will also be distributed with The Texas Lawyer, The American Lawyer, The National Law Journal, and Corporate Counsel magazine.
SJGO Lawyers Receive Peer Recognition
Dick Schwartz, Ed Junell and Roger Greenberg were recently recognized in the Super Lawyers - Business Edition 2012 (a Thomson Reuters Service). Super Lawyers is a rating service of outstanding lawyers who have attained a high-degree of peer recognition and professional achievement. The new Business Edition features those attorneys who were previously selected in 2010 to the Super Lawyers list in specific business practice areas and is distributed to in-house counsel, and CEOs and presidents of Fortune 500 companies. Dick and Ed were selected in Business Litigation while Roger was selected in Securities Litigation.
Dick and Ed were also included in the 2011 Best Lawyers, Houston Edition, in a special supplement to the National Law Journal and The American Lawyer. Both were selected for Commercial Litigation and Dick was also selected for Alternative Dispute Resolution.