Litigation

Appellate Litigation

Bracewell’s appellate team “boasts an impressive track record” (Chambers USA, 2022) in handling issues of first impression and landmark appeals at federal courts of appeal and state appellate courts throughout the country, as well as before the Texas Supreme Court.

Clients rely on us to handle some of the nation’s most complex cases at the appellate level. Recently, for example, we successfully defended Westlake Chemical on appeal to the Federal Circuit in a patent infringement case involving two of the largest publicly traded polymer manufacturers in the United States. We have also helped secure appeals for Carlton Energy, GDF SUEZ, KBR and Prosperity Bancshares. 

We handle a range of matters, from energy to environmental litigation, to insurance and toxic torts, to healthcare and intellectual property matters. We regularly join clients’ legal teams early in the litigation process and work to develop a comprehensive appeal strategy from the very beginning.

Cases With Impact

• ASARCO LLC in a dispute over whether a Bankruptcy Code provision authorized a law firm to recover legal fees that it incurred in litigating against ASARCO. The US Supreme Court ruled in ASARCO’s favor and resolved a significant legal issue that applies in every bankruptcy in the United States
• Carlton Energy Group, LLC on appeal in a large business dispute involving breach of, and tortious interference with, contracts regarding a gas lease. The trial court signed a judgment of approximately $50 million in Carlton Energy Group’s favor, which the Supreme Court of Texas affirmed. After a remand on a limited issue, the case is pending again in the Texas Supreme Court
• GDF SUEZ Energy North America (ENGIE) on appeal on behalf of GDF SUEZ in a first-of-its-kind case that involved novel legal and regulatory issues related to the Texas electricity markets
• KBR, Inc. on appeal to the US Court of Appeals for the Fourth Circuit against claims asserted by hundreds of thousands of service members and civilian employees alleging they were injured by KBR’s use of burn pits to dispose of solid waste at military bases across Iraq and Afghanistan
• KBR, Inc. on appeal from an $80 million judgment against KBR arising out of claims alleging exposure to sodium dichromate by 150-plus National Guardsmen at a water-treatment facility in Iraq. The Ninth Circuit ruled case in KBR’s favor just a week after oral argument, reversing a roughly $80 million judgment in its entirety based on lack of personal jurisdiction
• McAllen Trust Partnership (James Argyle McAllen and other McAllen Ranch entities) against Forest Oil Company for environmental contamination relating to drilling operations. We prevailed in the Texas Supreme Court on behalf of our client
• Prosperity Bancshares, Inc. in an adverse temporary injunction ruling in a dispute with former employees over enforcement of the parties’ non-compete and non-solicitation agreements
• Westlake Chemical Corporation on appeal to the federal circuit in a patent infringement case involving two of the largest publicly traded polymer manufacturers in the United States. The Federal Circuit affirmed the lower court’s ruling that Westlake did not infringe a patent related to a method for producing adhesive resins
• W&T Offshore, Inc. in the Fifth Circuit by obtaining reversal of a district court’s dismissal of $50 million in claims brought by W&T Offshore against its excess insurers over damages to drilling platforms arising out of Hurricane Ike

Construction Litigation

Our construction litigation team has a wealth of courtroom experience that has earned us the reputation as one of the leading practices in the country. We bring in-depth and technical understanding of the construction field to the table, which allows us to provide effective solutions for a broad range of construction-related matters.

For decades, our litigation team has represented clients in major construction and real estate projects throughout the United States, such as the Toyota Music Factory in Irving, Texas, the Millennium Towers Project in San Francisco and SH130 Concession Company in Texas.

We represent diverse entities within the construction industry, including manufacturers and suppliers, contractors, engineers, architects, building and facility owners, school districts, municipalities, government agencies, developers, home builders and private home owners.

Cases With Impact

• Cementaid in connection with litigation stemming from alleged engineering and construction defects in San Francisco’s Millennium Towers
• City of Irving, Texas, in the 200+ million construction and development of the Toyota Music Factory venue, including outstanding construction disputes relating to completion of construction and the issuance of TIF reimbursement funds
• Concho Resources, Inc. in reviewing and remaking its company-wide master service agreement for construction projects
• Core Logistic Services LLC and its subcontractors in multiple Texas cases of approximately $10 million relating to road improvements
• Crescent Real Estate Equities in representing the senior lender of a large-scale construction project in Aspen, Colorado, with more than $40 million in outstanding mechanics’ lien claims
• Equa-Chlor, the owner of chlor-alkali plant in Longview, Washington, in a dispute with a contractor regarding cost-overruns, delay damages and change orders
• H-E-B Grocery Company, LP in obtaining a dismissal of the claims that the construction of a new H-E-B store caused flooding to the plaintiff’s property
• Main Bell Realty Corp in the development and construction of a subterranean pedestrian tunnel connecting a three-block area of Downtown Houston
• Manchester Financial Group/Hunt Construction Company on construction matters on the $300+ million Fairmont Convention Hotel – Austin.
• Midtown Redevelopment Authority in connection with the drafting and negotiation of the contract for the construction of a 64,500 square foot, five-story, mixed-use development with 20 units of affordable housing in the Emancipation Park area of Houston
• Montgomery County Municipal Utility District in a dispute related to construction defects in a freshwater well
• Museum of Fine Arts Houston in a construction dispute with its architect regarding a $250 million campus redevelopment project
• NBH Bank in connection with the default of a $49 million loan for the development of more than 1,700 acres of raw land in Georgetown, Texas, into a high-end, master-planned residential community. NBH Bank prevailed and foreclosed on the property after two years of litigation in bankruptcy court
• NCI Group, Inc. in allegations of defective roofing products installed in 16 facilities in three different states, obtaining a take nothing judgment after a three-week jury trial
• OST/Almeda Corridors Redevelopment Authority in a dispute related to the $33.6 million construction and redevelopment of Emancipation Park in Houston
• Phillips 66 in negotiating the construction and financing for its new world headquarters in the Houston energy corridor area — one of the largest synthetic leases for an office development in the country
• PL Propylene in an arbitration dispute with the EPC contractor regarding warranty claims raised by owner and delay claims made by EPC contractor
• SH130 Concession Company, owner of an 85 mile per hour Texas toll road, in claims regarding construction defects against several multi-national entities in disputes in both arbitration and litigation
• Shell Offshore and Shell International Exploration and Production in the successful representation of Shell against manufacturer and inspector of eight massive pressure vessels installed on Shell’s Perdido Spar, the world’s largest offshore production facility
• West Houston Infiniti in asserting construction defects and breach of contract claims related to substantial renovations and additions to a multi-million dollar car dealership in Houston. The matter involved deficiencies in the general contractor’s work, included more than 20 subcontractors as parties, and was resolved successfully during arbitration

Energy Litigation

Chambers USA (2022) praises Bracewell’s energy litigation team for providing “wonderful insight and guidance” to clients based on our deep understanding of the energy sector.

Our lawyers, who are nationally ranked by Chambers USA and Legal 500 US, represent energy companies, both as plaintiffs and as defendants. This gives us a unique understanding the strategies used by both sides and the issues likely to make a difference in a case’s ultimate outcome. We draw on this knowledge to focus our arguments on the points that will most likely resonated with judges, arbitrators and juries.

Our energy litigation practice is broad in scope. We handle a range of matters that includes:

• royalty disputes, including private litigation and government actions
• upstream oil and gas operations
• supply contract litigation
• service contract litigation
• energy project construction disputes
• downstream operations and contracts
• pricing and trading litigation
• regulatory reviews and rate-making proceedings
• intellectual property, including patents and trade secrets
• government investigations and litigation
• international arbitration

In the oil and gas sector, for example, we successfully represented Apache against Apollo Exploration LLC in one of the most significant oil and gas cases in recent memory. We also represented Apache in industry-leading arbitration related to royalty ownership, pollution, class actions, oil and gas co-tenancies and lease termination.

In the power and renewables sector, we represent some of the world’s largest power producers in litigation and arbitration throughout the United States, including before federal and state regulatory bodies. Our lawyers have addressed virtually every major issue in power sector, from issues related to renewable energy to cross-border disputes. For several years, we have advised Powerex in connection with novel legal issues related to Canada’s cross-border participation in the California Independent System Operator (CAISO)’s western energy imbalance market (EIM).

We Know Energy^®.

Cases With Impact

• Apache Corporation in the dismissal of all claims brought against Apache in one of the more significant recent cases arising in the context of depressed oil prices
• Apache Corporation in a case of first impression regarding royalty ownership and oil and gas co-tenancies, successfully defended Apache against claims that Apache failed to pay correct royalties and failed to account correctly for co-tenancy rights in more than 100 horizontal wells in the Permian Basin region
• BG Americas & Global LNG in two related arbitrations that established BG’s right not to pay for unused midstream transportation capacity, and the obligation of the operator to market all hydrocarbons produced
• Bluescape Resources Company in arbitrations arising out of the sale of oil and gas assets in Pennsylvania, Maryland and West Virginia to companies owned by legendary Texas oil man Boone Pickens
• Direct Energy in a suit against entities owning four large-scale wind farms regarding complex claims focusing on the real-time Texas electricity trading market and the use of tax credits during forced curtailments of production of electricity at the wind farms
• Eni Petroleum US and Eni US Operating in a multi-million dollar  dispute of first impression regarding production and use of lift gas at the Devils Tower Spar, one of the largest oil and gas platforms in the world
• Eni Petroleum US LLC and Marubeni Oil & Gas (USA) Inc. in a matter arising from oil and gas production at one of the largest oil and gas platforms in the world, including the use of “lift gas” in the production of Gulf of Mexico hydrocarbons, the contractual allocation of production handling capacity on the spar, the weight available for the installation of a completion/workover rig and the defendants’ alleged overuse of production handling equipment
• Eni S.p.A. in defeating a $6.4 billion claim against Eni for the value of an oil and gas concession off the coast of West Africa
• Foro Energy in a complete take-nothing defense judgment in a trade-secret showdown over a deployment wheel concept used for offshore oil and gas decommissioning work
• GDF Suez Energy North America against allegations brought by participants in the US energy futures derivatives market claiming that the company used its bidding strategy to manipulate the market, causing the plaintiffs to suffer tens of millions of dollars in damages
• Hilcorp Energy Company in the dismissal of a class action royalty dispute involving natural gas production throughout the state of Texas
• Juno Energy LLC in the trial of an eight-figure title dispute involving oil and gas properties in West Texas. On the second day of trial, Bracewell secured a settlement with one party, and continued the trial against the remaining party. After a week-long bench trial, the judge ruled immediately after closing arguments that Juno had title to the property
• Layline Petroleum in a dispute arising over the post-closing purchase price adjustment in the sale of oil and gas interests to Wapiti Oil & Gas for $375 million
• NEXUS Gas Transmission, LLC in defending FERC-certificated $2 billion interstate natural gas pipeline against multiple environmental and Natural Gas Act challenges in the US Court of Appeals for the Sixth and DC Circuits, including briefing and oral argument
• Powerex Corp., the trading and marketing subsidiary of BC Hydro and Power Authority, in a series of litigation and appellate matters arising from the California energy crisis, defending claims in excess of $1 billion including related proceedings before the Federal Energy Regulatory Commission. This litigation involved novel and complex issues arising under the Federal Power Act, as well as issues involving the Foreign Sovereign Immunities Act, the North American Free Trade Act and the Columbia River Treaty
• PPL Montana in the arbitration of the sales price of the Kerr hydroelectric dam, a three-turbine dam constructed on tribal land in Montana
• Seahawk Drilling (successor in interest to Pride International) in claims arising from the loss of the Wyoming drilling rig in the Gulf of Mexico during Hurricane Ike

Environmental Litigation

Legal 500 US (2020) describes our environmental litigation team as “a talented group with deep knowledge in environmental law. They offer sound advice with a view towards business reality.”

Our team includes seasoned private practice attorneys, and lawyers who held high-ranking positions in government agencies, including the US Environmental Protection Agency (EPA), the US Department of Justice (DOJ), the US Department of the Interior (DOI) and the US Army Corps of Engineers. These diverse experiences give us a deep understanding of environmental regulations and how to effectively litigation for a favorable outcome. For example, we are representing The Electric Reliability Coordinating Council on matters centered on the EPA’s efforts to regulate greenhouse gas emissions under the Clean Air Act. We are also defending Kinder Morgan Texas Pipeline LLC, Kinder Morgan, Inc. and Permian Highway Pipeline LLC in federal lawsuits seeking to delay and enjoin construction of the Permian Highway Pipeline through the Texas Hill Country.

Our lawyers keep abreast of new regulatory and legal development, working with clients in developing, improving and implementing strategies for cost-effective compliance with state and federal environmental regimes. We have a long history of representing clients in high-stakes litigation related to climate change, the Clean Air Act (CAA), the Clean Water Act (CWA) and the Comprehensive Environmental Response, Compensation and Liability Act.

Cases With Impact

• Halliburton Energy Services, Inc. in various investigations that arose from the Deepwater Horizon incident, including President Obama’s Special Task Force, the US Congress and the CSB. We brought the matter to a very successful resolution for Halliburton — one that included no criminal charges related to the explosion, the oil spill or the environmental impacts
• Kinder Morgan Texas Pipeline LLC, Kinder Morgan , Inc. and Permian Highway Pipeline LLC in two related lawsuits filed in federal court in in Austin, Texas, in the US District Court for the Western District of Texas seeking to delay and enjoin construction of the Permian Highway Pipeline through the Texas Hill Country, where it will pass through or near the habitats of several endangered species
• NEXUS Gas Transmission, LLC in defending FERC-certificated $2 billion interstate natural gas pipeline against multiple environmental and Natural Gas Act challenges in the US Court of Appeals for the Sixth and DC Circuits
• Valero Energy Corporation in cases in the DC Circuit Court of Appeals and in the Northern District of Texas challenging US EPA rules implementing the Renewable Fuels Standard (RFS)

Financial Institutions Litigation

Our litigation team is highly skilled and experienced in advising financial institutions on litigation matters. We develop a comprehensive approach to litigation that draws on the firm’s resources in the areas of law that directly impact the financial services sector, such as government enforcement and investigations, corporate and securities, tax, labor and employment, employee benefits, environmental strategies, real estate and restructuring. Our broad experience and commitment to collaborating across practices allow us to provide informed counsel on virtually any litigation matter.

We represent US and international banks, thrifts, trust companies, broker-dealers, specialty finance organizations and private equity groups in complex litigation, arbitration and mediation. Our litigators work closely with our transactional and regulatory lawyers to advise clients on potential risks so they can avoid possible litigation in the future.

Healthcare Litigation

Bracewell has extensive healthcare litigation experience. We represent some of the largest publicly traded hospital companies in the United States — a distinction held by only a handful of firms — as well as pharmaceutical companies, medical device manufacturers, long-term care providers, physician practices, and providers of laboratory and diagnostic services, durable medical equipment and various ancillary services.

Our team of experienced lawyers advises healthcare providers on a broad range of litigation, regulatory and compliance matters, including:

• healthcare fraud
• managed care litigation
• government enforcement and investigations by state and federal agencies
• fraudulent lien suits
• insurance/payor reimbursement disputes
• trade secrets litigation
• antitrust and unfair competition claims
• trademark and copyright infringement
• securities litigation
• commercial contract disputes
• real estate and construction disputes

Bracewell has one of the few healthcare litigation teams in Texas that solely represents healthcare providers versus payors in managed care litigation, giving us unparalleled understanding of the legal challenges unique to the healthcare industry.

Intellectual Property Litigation

In a field with rapidly evolving developments, our intellectual property lawyers combine their extensive litigation and technical experience to protect the intellectual property rights and technology interests of our clients at all levels. Our innovative approach and proven track record have earned us a reputation for having the know-how to effectively place our clients in a position to achieve a successful outcome.

Our clients are innovators and among the leading global companies in the computer, software, energy, media, retail, telecommunication and financial service sectors. We represent Toshiba, for example, in an ongoing patent infringement action, as well as Nordstrom in connection with trademark, copyright and patent infringement actions. We also successfully represented HTC Corporation in a trademark infringement case, including the recovery of $1.5 million in fees.

Our IP litigation team focuses on the business needs of our clients. We begin each engagement with a strategic analysis and develop a strategy tailored to a company’s specific needs. Our lawyers serve as trusted confidants, working closely with clients in devising comprehensive plans for every aspect of their IP protection.

Bracewell’s lawyers handle intellectual property disputes in courts throughout the United States, including the key intellectual property jurisdictions of Eastern District of Texas, District of Delaware and the Northern and Central Districts of California. We litigate both offensive and defensive patent infringement matters on behalf of clients across a wide range of technologies in federal district courts, as well as before the International Trade Commission (ITC). We have also successfully represented clients before numerous state courts, the Patent Trial and Appeal Board (PTAB) and the Trademark Trial and Appeal Board (TTAB) of the United States Patent and Trademark Office (USPTO), the World Intellectual Property Organization and other international administrative bodies. 

Many of our lawyers are registered patent attorneys and possess advanced technical degrees. They combine specialized knowledge with litigation skills to present technical details to judges, juries and arbitrators to effectuate positive results.

Cases With Impact

• Baker Hughes Incorporated in securing a jury trial victory for in Texas state court for ownership of patented technology related to a downhole activation system using repelling magnets for a linear motor based safety valve
• Baker Hughes Incorporated in numerous engagements asserting or defending claims of patent infringement, including litigating and arbitrating patents related to oilfield services tools and refinery chemicals and processes
• Big Fish Games in patent infringement litigation in the Eastern District of Texas, Nevada and the Western District of Washington, winning motions to dismiss plaintiff’s patents (11 patents in total). We are currently defending two appeals before the Federal Circuit
• Cummins Inc. and Cummins Filtration Inc. in a series of patent infringement actions involving diesel engine technology against a competitor in the District of Delaware
• Facebook Inc. in a case alleging patent infringement of the asserted e-mail patent owned by Australian company A Pty. Ltd. in the Western District of Texas, Austin Division. We successfully invalidated the patent-in-suit, and the case was dismissed with prejudice prior to the commencement of discovery
• Houston Independent School District in two significant lawsuits involving allegations of district-wide trademark and copyright infringement, securing summary judgment in HISD’s favor in one of the matters
• HTC Corporation in a complete victory for consumer electronics company HTC in a trademark infringement case in the Eastern District of Virginia. We recently won a ruling entitling HTC to recover $1.5 million in fees based on the exceptional nature of the case
• Overstock.com, Inc. in connection with a significant jury verdict in a patent infringement suit against plaintiff, Alcatel, marking a rare defense victory in a patent case in the Eastern District of Texas in a suit alleging infringement of e-commerce website technology. We represented client in additional patent infringement cases from the Northern and Eastern Districts of Texas to the District of Delaware
• Simmonds Precision Products, Inc. in asserting claims of breach of contract, trade secret misappropriation and tortious interference with a prospective business
• Toshiba Corporation and various Toshiba entities in patent infringement litigations filed across the country, including currently pending matters California (Central District) and Utah, and Patent Trial and Appeal Board in connection with both defensive and offensive inter partes review proceedings involving a variety of technologies
• UTC Climate, Controls & Security in the protection and defense claims of patent infringement
• Westlake Chemical Corporation in the Eastern District of Texas for infringing a patent claiming an improved process for making tie-layer resins used in the food packaging industry. After a jury trial in a venue known to favor plaintiffs, the jury returned a verdict of non-infringement for Westlake. The Federal Circuit affirmed the jury’s verdict of non-infringement on appeal

International Energy Disputes

Bracewell’s international energy disputes practice is one of the most experienced legal teams worldwide. As Legal 500 UK (2020) notes, Bracewell has “a traditional and well established strength in the transactional space of the oil and gas sector, which is complemented by its growing disputes resolution sub-team.”

We represent clients in some of the world’s most challenging jurisdictions, including Colombia, Congo, Egypt, Gabon, Gambia, Liberia, Mexico, Nigeria, Saudi Arabia, Tanzania, Uganda and Yemen. No matter how complex a matter, we are dedicated to helping our clients achieve their most ambitious and innovative energy-related goals. 

We have broad experience in the upstream, midstream and downstream sectors. We represent a wide range of industry participants — from independent oil companies to large mid-caps, majors and supermajors, to operators and off-takers, to services companies and contractors — in disputes involving exploration, production, transportation, pricing, refining, processing and marketing.

In addition to high-stakes litigation, we frequently represent oil and gas companies in international arbitrations. Notable oil and gas clients include Alcazar Energy, Anglo African Oil & Gas, Apache Corporation, Chevron, Dana Petroleum, ENI, Heritage Oil, Impact Oil & Gas, M+W Group, Rhino Resources and Shoreline Natural Resources. 

Our power disputes practice encompasses both conventional and renewables projects. We regularly represent clients in disputes at all stages of project development, including construction and operation. Our lawyers excel at effectively resolving highly contentious issues arising from power generation, transmission, networks and related infrastructure.

Securities Litigation

Our securities litigation team handles high-stakes securities matters and challenging “bet the company” cases. We are known for integrating a full range of skills across multiple areas of the law to develop efficient solutions to complex securities issues.

We represent public and private companies, underwriters and individuals in high-profile cases filed in both state and federal courts throughout the United States, including Delaware. We also defend companies, boards of directors, and individual executives and officers in actions alleging violations of securities laws at the state and federal levels.

Bracewell’s energy focus also extends to our securities litigation practice. Our litigation team works closely with our energy litigation lawyers to develop an inclusive approach to dispute resolution. We have represented Southern Copper Corporation, one of the world’s largest copper mining companies, in derivative suits, and Great Plains Energy Incorporated in connection with litigation surrounding its stock-for-stock merger of equals with Westar Energy. Our clients rely on our comprehensive strategies and interdisciplinary understanding to effectuate solutions that will have a positive and lasting impact.

Cases With Impact

• Anadarko Petroleum Corporation’s board of directors in a shareholder derivative case arising out of the Macondo well explosion in the Gulf of Mexico
• The Bank of New York Mellon Trust Company, N.A. in the dismissal of all claims against client in several federal securities fraud lawsuits brought by unitholders of oil and gas royalty trusts against the client in its capacity as trustee
• The Bank of New York Mellon Trust Company, N. A. in obtaining the dismissal of a $10 million claim asserted by trust unit holders against BNY Trust Company, in its capacity as trustee, in a class action securities case in Colorado federal court
• The Bank of New York Mellon Trust Company, N. A. and its parent, The Bank of New York Mellon Corp., in a lawsuit in Houston state court brought by a trust’s successor trustee, asserting a $20 million claim for breach of fiduciary duties owed to trust unit holders and to the trust
• Private equity funds managed by Centrecourt Asset Management LLC in a shareholder and creditor derivative action against directors, outside counsel and affiliates for breach of fiduciary duty, corporate waste and tortious conduct
• Deutsche Bank AG in obtaining summary judgment and dismissal of all claims arising from plaintiffs’ unsuccessful participation in tax strategy
• FX Energy in defeating an injunction of the merger between FX Energy and Orlen Upstream Sp. z o.o., a Polish oil and gas company in widely-reported trial in Nevada state court
• Lufkin Industries Inc. and its board of directors in a shareholder derivative case arising out of a proposed merger transaction 
• MetroCorp Bancshares, Inc. and its board of directors and officers in a shareholder class action arising out of a proposed merger transaction 
• Pier 1 Imports, Inc. and its former CEO and CFO in a putative class action asserting claims of securities fraud — 2019 Business Litigation of the Year, Dallas-Fort Worth Outstanding Corporate Counsel Awards
• Prosperity Bancshares, Inc. in three federal court cases alleging violations of the Securities Exchange Act arising out of a $2.1 billion merger transaction with LegacyTexas Financial Group, Inc.
• Southern Copper Corporation and certain members of its board of directors in shareholder derivative class action complaint asserting alleged breach of contract and alleged breach of fiduciary duties
• Tallgrass Energy GP, LLC’s Conflicts Committee of its board of directors in four federal court cases alleging violations of the Securities Exchange Act of 1934 arising out of a $3.5 billion merger transaction with affiliates of Blackstone Infrastructure Partners