To underline the point, the DOJ’s Antitrust Division also hosted a Big Tech Censorship Forum on April 3, featuring Ferguson, as well as the division’s head, Assistant Attorney General Gail Slater, and Federal Communications Commission Chairman Brendan Carr. They again made it clear that the administration is focused on monopolization and the consolidation of power in big tech companies. “When you look back at the sweep of history there has never been a point in time when there have been so few entities that have so much control over the free flow of information,” Carr asserted.
Where Enforcement May Thrive
While large technology players may face stepped-up enforcement, the administration has said it intends to be more open than the Biden administration to potential anti-competition remedies offered by merging companies. The Biden FTC and DOJ were seen as more willing to file suit over mergers than previous administrations. Under Trump, however, both agencies have signaled they are open to a more cooperative approach.
Nonetheless, Trump regulators appear unlikely to scrap the Biden administration-authored Merger Review Guidelines, which have increased antitrust scrutiny of mergers. Nor do they appear to be abandoning recently revised and more expansive Hart-Scott-Rodino Filing Rules, which require companies involved in a transaction to disclose information to the government to launch a merger review.
Whatever happens with the federal government, companies may still face aggressive antitrust enforcement efforts from the states and international regulators. Earlier this month, at the spring meeting of the Antitrust Section of the American Bar Association—an event billed as the largest gathering of antitrust lawyers and regulators in the world—regulators and attorneys general from several states said antitrust enforcement will be a priority for the foreseeable future. They said they hope to develop a body of case law that focuses on state-level regulation that is distinct from federal precedents.
The European Union, too, is likely to pursue a tougher enforcement stance, especially in the wake of recent courtroom victories. This includes a 2023 win by German regulators against Meta, which found that the company had violated the EU General Data Protection Regulation in a way that constituted anticompetitive conduct.
Meanwhile, former employees keep up their pressure campaign on Meta as well. Meta whistleblower Sarah Wynn-Williams testified to U.S. senators on April 10 that Meta cooperated closely with the Chinese government to censor social media posts on its platforms, as CBS reported. Meta denies Wynn-Williams' testimony.
Company v. Company Actions
Private companies may also get into the act. If the Trump administration pursues a less aggressive enforcement stance, competitors may feel compelled to file their own antitrust claims.
Take a case filed last week by Swiss generic drug manufacturer Sandoz. The company alleges pharmaceutical maker Amgen blocked competition of a blockbuster anti-inflammatory drug. Sandoz contends that Amgen bought and used patents to create a monopoly and block competition from competitors that made cheaper, generic versions of the medicine.
But a flurry of new antitrust suits by private companies would buck recent litigation trends. Private antitrust litigation has declined sharply. During the first three years of the Biden presidency alone, civil antitrust suits brought by private companies decreased by 60 percent, according to figures from the Administrative Office of the U.S. Courts. Although other factors, such as the cost and unpredictability of litigation, contributed to the decrease, heightened antitrust enforcement undoubtedly played a key role.
‘Buy and Bury’ Strategy
Meanwhile, the Meta case is just the first of two major federal antitrust actions slated this month. On April 21, the DOJ is set to argue that Google should be forced to sell its Chrome browser to help curb the size and scope of its monopoly in search. Both cases originated in the first Trump term and were continued by the Biden administration, which also filed antitrust claims against Amazon and Apple, and another case against Google.
In the Meta case, the government argues that the company’s purchases of Instagram in 2012 and WhatsApp in 2014 were part of a “buy or bury” strategy designed to eliminate potential competitive threats by acquiring them or using its vast resources to put them out of business. The government cites, for example, a 2012 internal e-mail written by Zuckerberg that says buying Instagram would “neutralize a potential competitor.”
Daniel Matheson, the lawyer leading the FTC’s case against Meta, said in court this week that the company has “reaped massive economic profits” thanks to its anticompetitive activities. He added that the agency would be relying on “contemporaneous records” such as Zuckerberg’s e-mails rather than “self-interested executives and paid experts.”
Hansen, Meta’s lawyer, spent much of his opening statement on Monday offering, as Business Insider described it, a “boisterous defense” of the company and “mixing in animated graphics and colorful asides to undermine the U.S. government's…case.”
Working for Meta
Kellogg Hansen has represented Meta (and, prior to that, Facebook) in previous antitrust cases—including an earlier incarnation of the current fight over “buy or bury” strategy.
In 2020, on the same day the FTC filed its suit, 48 attorneys general from U.S. states and territories sued over the company’s purchase of Instagram and WhatsApp. U.S. District Judge James Boasberg, the same judge hearing the current Meta case, said the states had waited too long to file. He also tossed the FTC’s case, but later allowed it to move forward after the agency amended its complaint.
The states tried to revive their case, as well. In 2023, Kellogg lawyers, including Hansen, beat back their effort at the U.S. Court of Appeals for the D.C. Circuit.
The firm also helped Meta win the 2023 dismissal of an antitrust lawsuit brought by Phhhoto, a company that had produced a photo software application. The company claimed Facebook had driven it out of business because it was an “innovative, nascent competitor,” according to court documents.
Also in 2023, the firm defeated an attempt by the FTC to preliminarily enjoin Meta’s acquisition of Within Unlimited, Inc. And in 2014, Kellogg Hansen served as co-lead trial counsel defending Facebook against antitrust claims brought by a social games company, a case which settled shortly before trial.
A Long Track Record
Kellogg Hansen was founded in 1993 by Hansen and fellow Harvard Law School classmates Michael Kellogg and Peter Huber. Among the firm’s alums is Supreme Court Justice Neil Gorsuch, who worked at the firm for 10 years as an associate and partner. Best Law Firms has ranked the firm across multiple national and regional practice areas, including antitrust law, antitrust litigation, and bet-the-company litigation.
Even before Facebook and Meta, the firm has tallied a long track record of handling complex antitrust battles. It also has experience as counsel on both sides of the litigation table. In 2003, the firm helped plaintiff Conwood Co., a smokeless tobacco company, to collect a $1.3 billion judgment in an antitrust case against U.S. Tobacco Co. And in 2013, Kellogg Hansen served as co-lead counsel in a class action alleging price fixing by the Dow Chemical Co., in which a jury returned a $1.2 billion verdict. The verdict—upheld on appeal—is one of the largest ever in an antitrust case.
“It is no exaggeration that the firm’s cases have reshaped the substantive and procedural law of antitrust over the last two decades,” the firm says on its website.
Meta is clearly hoping the firm’s magic touch with antitrust cases continues.
--
David L. Brown is a legal affairs writer and consultant who has served as head of editorial at ALM Media, editor-in-chief of The National Law Journal and Legal Times, and executive editor of The American Lawyer. He consults on thought leadership strategy and creates in-depth content for legal industry clients and works closely with Best Law Firms, as a senior content consultant.
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For the legal industry—and Big Law in particular—the second Trump administration is off to a turbulent start.
President Trump has issued executive orders blacklisting several large law firms that have represented clients opposed by the administration.
The orders essentially cut off firms’ access to the federal government, suspending their lawyers’ security clearances, blocking access to government buildings, preventing government hiring of firm employees, and requiring federal agencies to terminate contracts with the firms.
Trump has also targeted diversity, equity and inclusion (DEI) programs and launched a regulatory probe into hiring practices at several major firms.
Since March, he has extracted promises from several Big Law players that they will rethink their DEI initiatives, hire lawyers from across the political spectrum, and offer financial concessions to fund pro-administration legal causes. In exchange, those firms have been spared punitive executive orders.
While some firms are bowing to the pressure, a few major players are fighting back in court, arguing Trump has overstepped his executive authority and violated their First Amendment rights.
All of this comes at a critical moment for law firms and their clients. Both face financial headwinds and deep uncertainty stemming from Trump’s tariff war.
How law firms navigate this volatile political and economic environment could redefine their businesses, client relationships, and reputations.
Changing Course on DEI
On March 6, Trump signed an executive order directing the Equal Employment Opportunity Commission and the U.S. attorney general to review the DEI practices of “large, influential, or industry-leading law firms.”
The order said the EEOC should review whether firms “reserve certain positions, such as summer associate spots, for individuals of preferred races; promote individuals on a discriminatory basis; permit client access on a discriminatory basis; or provide access to events, trainings, or travel on a discriminatory basis.” As he signed the order, Trump said the administration was specifically looking at “15 different firms,” though he did not disclose the firms’ names.
Two weeks later, the EEOC’s acting chair followed up, sending letters to 20 law firms—all from the upper tiers of the Am Law 100—requesting information about their DEI-related employment practices. “The EEOC is prepared to root out discrimination anywhere it may rear its head, including in our nation’s elite law firms,” Andrea Lucas, the acting chair, said in a press release. “No one is above the law—and certainly not the private bar.”
The administration’s moves have chilled DEI efforts at many firms. At least 40 major firms have altered their policies or removed pro-DEI statements from their websites, a trend that began after Trump’s inauguration and has accelerated since the executive order.
Eight large firms have also reached deals with Trump that they will not engage in “illegal DEI discrimination and preferences.”
On April 8, Bloomberg News reported that one of the firms, Skadden Arps Slate Meagher & Flom, had canceled all future events for the firm’s employee affinity groups and had removed mentions of those groups from its website. Skadden, Bloomberg said, supported at least 10 affinity networks “for parents, veterans, Asian-Pacific Islanders, Blacks, and Latinos, among others.”
Preemptive Agreements
Skadden, in its deal with Trump, also said it would spend $100 million on pro bono causes that the administration supports.
Willkie Farr & Gallagher, Cadwalader Wickersham & Taft, and Milbank have also committed $100 million, Paul, Weiss, Rifkind, Wharton & Garrison has pledged $40 million, and Kirkland & Ellis, Allen Avery Shearman & Sterling, Latham & Watkins, and Simpson Thacher & Bartlett promised $125 million.
On Truth Social, Trump said the agreements will “help end the weaponization of the justice system and the legal profession.” For their part, the firms have acknowledged in internal communications that the agreements are a preemptive move to prevent Trump from targeting them with business-crushing executive orders.
The deal terms are broad. The firms have committed to pro bono efforts helping veterans and public servants (including military, law enforcement and first responders), fighting antisemitism, and ensuring fairness in the justice system. They have also agreed to commit to “merit-based hiring, promotion, and retention,” and to give “fair and equal consideration” to job candidates regardless of political ideology. As Milbank noted in its statement about the deal, “the agreement is consistent with [the firm’s] core values.”
The deal terms are broad. Skadden, Milbank, Willkie, and Paul, Weiss have committed to pro bono efforts helping veterans and public servants (including military, law enforcement and first responders), fighting antisemitism, and ensuring fairness in the justice system.
They have also agreed to commit to “merit-based hiring, promotion, and retention,” and to give “fair and equal consideration” to job candidates regardless of political ideology.
As Milbank noted in its statement about the deal, “the agreement is consistent with [the firm’s] core values.”
While the relatively loose language may give firm leaders some comfort, the terms may also allow Trump opportunities to pressure them to represent certain clients. In recent days, for instance, he has said he may also lean on the firms to assist the coal industry with leasing on public lands.
Internal and External Criticism
Many of the firms have received substantial pushback from critics inside and outside the firms. At Willkie, for instance, The New York Times reported that Doug Emhoff, a prominent partner at the firm and husband of Trump’s 2024 opponent, former Vice President Kamala Harris, has “publicly assailed” the deal, and Joseph Biao, Willkie’s longest-serving lawyer, resigned in protest.
Democrats have also questioned the deals.
The ranking members of the House and Senate judiciary committees—U.S. Sen. Richard Blumenthal (D-Conn.) and Rep. Jamie Raskin (D-Md.)—sent a letter to the four firms that have inked deals with Trump seeking information and records. They also wrote to Kirkland & Ellis and Sullivan & Cromwell for material about their role in “facilitating the administration’s unlawful coercion of other law firms.\"
Blumenthal and Raskin noted that the federal courts have so far sided with law firms over the administration.
“The courts that have considered these vendetta orders to date have universally ruled against them and noted that they violate the First Amendment right to free speech as they are plainly ‘retaliatory action’ meant to ‘chill speech and legal advocacy,’” Blumenthal and Raskin wrote.
President Trump announced agreements on Friday with Kirkland & Ellis LLP and four other prominent law firms to collectively provide hundreds of millions of dollars in pro bono legal services for causes supported by his administration, Associated Press reported.
These agreements also allow the firms to avoid potential executive orders that could have posed challenges to their operations.
The resolutions highlight the administration’s ability to negotiate with major law firms to achieve its goals. These firms, which include Kirkland & Ellis LLP, Allen & Overy LLP, Shearman & Sterling LLP, Simpson Thacher & Bartlett LLP, and Latham & Watkins LLP, have agreed to contribute $125 million each in free legal services. These efforts will support initiatives such as veterans’ affairs and combating anti-Semitism.
In exchange, the administration has withdrawn letters from the EEOC requesting information about potential discriminatory hiring practices at these firms. This resolution reflects a balancing act between the firms’ cooperation with government priorities and their interest in mitigating possible regulatory scrutiny.
The agreements demonstrate the evolving relationship between the legal sector and government policy, providing insight into how law firms navigate compliance while contributing to public causes.
Fighting Back in Court
Perkins Coie, WilmerHale, and Jenner & Block have sued the Department of Justice over Trump’s executive orders targeting the firms.
On March 12, a federal judge issued a preliminary injunction blocking the administration from enforcing portions of the order against Perkins. Judges, in two separate rulings on March 28, followed suit, freezing Trump’s orders against WilmerHale and Jenner & Block.
The three firms are now seeking permanent injunctions against the administration.
They argue that Trump has trampled on their First Amendment rights and is retaliating against them because they have represented clients opposed to the administration and its allies. “These orders send a clear message to the legal profession: Cease certain representations adverse to the government and renounce the administration’s critics—or suffer the consequences,” Jenner said in court documents.
The firms have also mounted a campaign to generate support for their arguments. Hundreds of law firms, law professors, former judges, and advocacy groups have filed amicus briefs in the Perkins case. And Jenner has created a standalone website, “Jenner Stands Firm,” which tracks developments in its case.
As the court fights continue, however, Trump’s orders are inflicting pain.
An Associated Press account of a hearing on Perkins Coie’s injunction highlighted the financial impact the executive order is having on the firm. The firm’s attorney, Dane Butswinkas of Williams & Connolly, said all 15 of Perkins’ top clients have government contracts and that several clients had parted ways with the firm or were considering doing so, the AP reported.
Continuing the order, Butswinkas said, would “spell the end of the law firm.”
Tariffs: Turmoil and Opportunity
Being shut out of the federal government—particularly at the beginning of a new administration when clients are attempting to understand and react to seismic policy changes—is hardly an optimum position for any major firm.
And that’s especially true at the moment, as Trump reels off new tariff policies on a daily basis.
As Bloomberg recently reported, international trade practices are grappling with “a frenzy” of work. “While few would argue Trump has been good for the legal profession writ large — see his revoking of security clearance to pressure firms on his enemies list—trade lawyers have to admit he’s been good for their niche corner of the industry,” Bloomberg said.
In the wake of Trump’s tariffs, companies are scrambling to review and rewrite contracts with suppliers, understand whether free trade agreements may exempt their products, identify and manage risks to their supply chains, and pinpoint and cope with increased costs. Contract renegotiations and fights over who bears the costs of new trade barriers are also likely to trigger a wave of litigation. All of this could mean a windfall for well-positioned firms.
Trump, too, sees a role in the tariffs war for firms that have struck deals with him. \"Right now, Japan is flying here to make a deal. South Korea is flying here to make a deal. And others are flying here,\" Trump said on April 8. \"We're going to have to use those great law firms, I think, to help us with that.\"
Tough Choices
Meanwhile, the administration’s moves against law firms continue.
On April 9, Sussman Godfrey—which won a $787.5 million settlement from Fox News on behalf of Dominion Voting Systems over lies about the 2020 election—was hit with an executive order similar to those against WilmerHale, Perkins, and Jenner. Sussman said it intends to fight the order.
Almost certainly, other firms will face the same choice—whether to accommodate the administration or confront it. Neither option is easy.
On one hand, firms face a real threat to their finances and clients. On the other, a firm’s reputation may be permanently damaged. For firms that have accepted deals, recruiting efforts are already in turmoil, and they are taking critical lumps from their colleagues and peers. It’s not clear how firms caught in Trump’s net can avoid the proverbial rock or the hard place.
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David L. Brown is a legal affairs writer and consultant, who has served as head of editorial at ALM Media, editor-in-chief of The National Law Journal and Legal Times, and executive editor of The American Lawyer. He consults on thought leadership strategy and creates in-depth content for legal industry clients and works closely with Best Law Firms, as senior content consultant.
As the world turns in the 21st century, those in management positions (either at their law firms or other businesses now led by a lawyer) who seek to rise above their competitors and take their enterprise to new heights would do well to incorporate into their repertoire best practices in two critical areas of peak performance: stellar negotiation skills and the most valuable leadership traits. Where can you find the best information about these two fields of self-improvement? It’s distilled into two books that revolve around the career and wisdom of one man: the late, great Henry Kissinger.
Negotiation Skills
The analysis needed to understand how Dr. Kissinger went about negotiating his landmark transactions—most notably, the opening to China after decades of mutual hostility, achieving détente and the first nuclear arms control treaty with the Soviets at the height of the Cold War, bringing an end to America’s involvement in the Vietnam War at the Paris Peace Accords, and effectuating Egyptian and Syrian disengagement deals with Israel following their 1973 war—was done a few years ago by professors James Sebenius (Harvard Business School), Nicholas Burns (Harvard’s Kennedy School of Government) and Robert Mnookin (Harvard Law School), in their excellent book Kissinger the Negotiator: Lessons from Dealmaking at the Highest Level (HarperCollins, 2018). The authors’ protagonist was so impressed with their approach and final product that he wrote the book’s foreword.
Among the many “actionable insights” gleaned from their research of Kissinger’s historic horse trading, which are detailed and supported by many examples in the book, are the following:
Once these best practices have been processed and incorporated into one’s playbook, the operative question for the lawyer to ask himself whenever he engages in negotiations and reaches a tipping point is clear: “What would Henry do?”
Leadership Traits
For the lawyer leader who seeks to elevate himself and his enterprise to a higher level, shrewd guidance is available from Dr. Kissinger himself in his book Leadership: Six Studies in World Strategy (Penguin, 2022). His thoughts on leadership have special significance in the context of recognizing that these days, lawyers, not only lead law firms, many have leveraged their legal training to become leaders of businesses, universities, school boards, nonprofits and government institutions.
Once these best practices have been processed and incorporated into one’s playbook, the operative question for the lawyer to ask himself whenever he engages in negotiations and reaches a tipping point is clear: “What would Henry do?”
To draw his conclusions, Kissinger explored the most important traits, which drove the successes of six leaders whom he encountered during his diplomatic career: Konrad Adenauer (chancellor of Germany from 1949-1963), Charles de Gaulle (head of France from 1944-1946 and 1958-1969), Richard Nixon (president of the United States from January 1969-August 1974), Anwar Sadat (president of Egypt from 1970-1981), Lee Kuan Yew (prime minister of Singapore from 1959-1990) and Margaret Thatcher (prime minister of Great Britain from 1979-1990). He chose them because they each “transcended circumstances by their vision and dedication” and thereby “redefined national purposes, opened up new vistas, and contributed a new structure for a world in transition.”
Kissinger identified five “parallel qualities” in the six leaders which should be aspirational for all lawyer leaders:
Besides these five shared traits, each of Kissinger’s chosen leaders had other traits at which he or she was particularly adept, which are also worthy of emulation by any lawyer who sets his sights on leading himself, his law firm and/or the organization he now leads to new heights:
As Kissinger identified and then described in detail these qualities demonstrated by his chosen leaders, he made their strengths appear available to all who put themselves in positions where challenging circumstances are properly analyzed, risks are managed, means fit ends, prudent decisions get made, trust is earned and promises are kept.
By his words and deeds, Henry Kissinger was not only an esteemed scholar and statesman, but he was also a teacher. Though he passed away on November 29, 2023, his wisdom lives on and is available to lawyers and everyone else who studies the lessons of his life and the substance of his writings. As a lawyer develops over the course of his/her career into becoming more skilled at addressing ever-rising demands in wide varieties of fields, it’s nice to know there are readily available sources of information like these two Kissinger books that can improve the likelihood of success of not just those who read them, they can also bear fruit for the benefit of the reader’s clients, law firms and other enterprises fortunate enough to have a lawyer as their leader.
Talmage Boston is a partner in the Dallas office of Shackelford, Bowen, McKinley & Norton, LLP, where he specializes in commercial litigation. He has been recognized by Best Lawyers for Commercial Litigation since 2013. He’s also a historian whose fifth book, How the Best Did It: Leadership Lessons from Our Top Presidents, will be released on April 2, 2024. He had the privilege of interviewing Henry Kissinger for the World Affairs Council of Dallas/Fort Worth in 2013 and 2022. He was first recognized by Best Lawyers® for Commercial Litigation in 2013 and earned the distinguished \"Lawyer of the Year\" accolade for Litigation - Banking and Finance in Dallas/Fort Worth in 2018 and 2022. He was included in the 30th edition of The Best Lawyers in America® for Appellate Practice, Commercial Litigation and Litigation - Banking and Finance in the Dallas/Fort Worth area.
Insurance. You may not consciously think about it very much, but you should. Your clients count on you to do so, even if they don't realize it.
Insurance is essential, ubiquitous and often a critical, if not dominant, consideration in every human financial activity. It affects even the most quotidian decisions business owners face: Do I need business interruption coverage? Are the coverage limits on the company auto policy sufficient? Is that contractor bonded and insured? If our CPA messes up the taxes, what's my recourse?
For a lawyer, insurance looms large over every action you perform, particularly if you represent business owners. The existence and details of insurance coverage—whether protecting them directly or available to them from third parties—are inextricably linked to the services you provide, and the claim process is an inseparable part of that coverage. It's within that claim process that friction exists between the publicly stated purpose of insurance coverage and the actual financial goals of the insurance companies.
A little background is in order.
While our firm's experience is centered primarily in Texas, the impact of insurance on commercial activities in every state is parallel, as is the unavoidable tension between insurance interests and those of other businesses. Also, unless you and your clients conduct business in just a few upper East Coast locales, most insurance companies you deal with will be from other states.
As an illustration of this phenomenon, consider that the National Association of Insurance Commissioners report, State Insurance Regulation in Texas: Key Facts and Market Trends, reflects that of 2,040 insurance carriers doing business in Texas in 2021, only 412 had a physical office in the state.
Does this make a difference? Does being a part of a local business community and doing business in the state of one's domicile impart some concern for that community's well-being? Perhaps, perhaps not. Certainly, however, nearly 80% of carriers writing policies in Texas – and likely a similar percentage in your state, would have no way of knowing. They are not local, and their concern for the local business community is confined to the premium dollars flowing away from it and in their direction.
Just how pervasive is the insurance enterprise?
It is an industry accounting for more than 7% of the world's economy, and it is no less a significant portion of the United States financial picture. In 2021, net insurance premiums were $1.4 trillion, 53% for property and casualty coverage. The US workforce includes 3 million people working in the insurance industry, with more than 1.6 million employed directly by insurance companies.
Now and historically, insurance has held enormous sway over political and legislative processes in the United States. For a detailed analysis of insurance interests' role in our country's transition from a set of British colonies to an independent nation, see Underwriters of the United States by Hannah Farber, University of North Carolina Press, Chapel Hill, NC, 2021.
During the latter part of the 18th century, the ground rules for conducting business in the developing nation were set out in the lex mercatoria, or \"law of merchants,\" an unenacted but \"revered body of rules, customs, and best practices\" cited as authority in governing marine and other insurance contracts of the 18th century. \"[R]elentless centralizer Alexander Hamilton … had the federal republic fixed in his sights but the 'laws of merchants' in his back pocket.\" (Ibid.,p.16,17)
As valid today as a quarter millennia ago is Ms. Faber's contention that \"[i]nsurers' abilities to intervene in political and legal affairs both at home and abroad were essential to their continued success.\" (Ibid.,p.23) The time-tested method for bringing one's desires to bear upon political and legal affairs? Lobbying. And insurance lobbying is massive.
According to OpenSecrets, a nonpartisan lobbyist watchdog group, the US insurance industry shelled out $153 million in 2021 to influence lawmakers. The following year, it upped its game to $160 million.
Lawyers and their business clients depend on the insurance industry to safeguard them from any expected perils of commercial activity, from lawsuits to hail damage and business interruption to employee dishonesty. Your clients invest in insurance to protect their livelihoods, and they have a right to expect returns from the insurance company in response to a notice of the loss.
Advertising jingles aside, insurance companies are in business to turn a profit, and to do so, many have developed strategies to reduce claim payments to avoid a drag on their bottom lines.”
The claim process—the method for accessing policy benefits—is central to conducting business successfully. If the insurance company fails to honor the obligations it assumed when it issued your client's policy, your client's business suffers over and above the damage triggering the claim in the first place.
And there's the rub. Advertising jingles aside, insurance companies are in business to turn a profit, and to do so, many have developed strategies to reduce claim payments to avoid a drag on their bottom lines. When carriers cut those checks to lobbyists or send contributions to legislative, congressional and—in states where judges are elected, like Texas—judicial campaigns, whose interests do you think they seek to protect?
Not only that, but these (mostly) out-of-state carriers circumvent the judicial consequences of laws designed to safeguard insureds by keeping cases out of the courtroom. For example, in the 2022 case of Overstreet v. Allstate, the Texas Supreme Court was primed to rectify a decades-old lower court ruling incorrectly construing Section 554.002 of the Texas Insurance Code, and level the playing field between claimants and insurers. In that case, the insurance company wielded the power of the purse to settle the claim out of court, depriving the Court of jurisdiction to issue an opinion.
Businesses across the nation are waking up to this friction. Google the phrase \"insurance recovery\" and see the number of large corporate law firms that incorporate this niche into their practice offerings.
As lawyers representing businesses other than insurance companies, we must be aware of the inherent conflict of interest between our clients and the carriers they rely on. Insurers have a long history of successful efforts reinforcing that reliance while failing to meet their obligations under the policies they issue. And the financial clout they bring to bear against other businesses' interests is vast. It will require a continual and collective effort to achieve something like balance in the scales of justice.
Marc Gravely is the founder of Gravely PC, a Texas-based firm devoted to insurance claim and construction defect disputes on behalf of businesses, homeowners associations and related organizations, and governmental entities.
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For those who do business in Texas or are considering doing so, mark your calendars. September 1, 2024, is the birthdate of a new judicial system in Texas—the Texas Business Courts. This dramatic change aims to resolve complex business disputes more efficiently than under the current civil court system. Texas is somewhat late to the party as the 30th state to create such courts. Although the law (House Bill 19) became effective September 1, 2023, the new Business Courts won't hear cases until after September 1, 2024. Big things require considerable preparation: there is a 12-month ramp-up time to confirm judges, put in rules and erect the necessary infrastructure.
Why is Texas doing this?
There are several reasons, but the general idea is to have a forum for businesses to resolve their business disputes more quickly, to have judges with a business background or prior judicial experience decide such cases, and to try to foster a business-friendly environment. Time will tell whether the Business Courts will achieve such goals.
How many Business Courts will there be, and when will they open?
For starters, five judicial divisions will cover the Austin, Dallas, Fort Worth, Houston and San Antonio areas. These first divisions are pilot projects. The goal is to have 11 Business Court divisions throughout Texas eventually. The creation of the other six divisions, which would serve rural Texas, is deferred to the 2025 Texas Legislature for approval and funding.
How are Business Court judges qualified?
Business Court judges must be at least 35; a U.S. citizen; a resident of the division for at least five years; and a licensed attorney with at least 10 years of experience in corporate transactional work, complex business litigation, previous experience as a civil court judge in Texas or a combination of the three. With the advice and consent of the Texas Senate, the governor will appoint Business Court judges to two-year renewable terms. Each of the five initial divisions will have two judges, and the remaining six rural divisions—if created and funded by the 2025 Legislature—will have one.
How will the Business Courts work?
A party can file a suit in the Business Courts or remove a case to the Business Courts from the court in which the case was originally filed. HB 19 also has a transfer provision that will allow a court in which a case was initially filed to request the transfer of the case to the Business Court if it is deemed to be within the Business Court's jurisdiction.
What about jury trials?
Business Court cases can be tried by a jury when required by the Texas Constitution. Although the Business Courts will be statewide, jury trials will be held in the county where the case could have originally been filed. But if a contract between the parties to a Business Court case contains a venue provision, a jury trial of that case will occur in the agreed venue. The parties to a Business Court case can also agree to have a trial in any county they choose.
Will the Business Courts Issue Written Opinions?
Yes. One of the reasons the business community supported HB 19 is the requirement for the Business Courts to issue written opinions. Proponents say this should lead to a more developed commercial law body and inform businesses how their future disputes may pan out.
How does a party appeal a judgment from the Business Courts?
A new appeals court (the 15th Court of Appeals in Austin) will have exclusive intermediate appellate jurisdiction over the Business Courts. This appeals court will have five justices, initially appointed by the governor but elected after that.
Companies should examine contracts and consider whether to have such disputes handled in the Business Courts.”
What disputes will the Business Courts hear?
The Business Courts will hear disputes over $5 million or $10 million that fit within specific categories in the statute. A few examples include disputes regarding an organization's governance or internal affairs, securities litigation, and breach of contract in which the parties agreed to venue in the Business Courts. Regardless of the amount of controversy, if a company is publicly traded, the Business Courts will have jurisdiction if the case pertains to certain types of disputes, such as securities litigation.
Can parties agree to sue or be sued in the Business Courts?
Yes. HB 19 will likely influence how parties address venue and jurisdiction in their contracts. HB 19 authorizes parties to agree to the jurisdiction of the Business Court through their contract (provided at least $10 million is in controversy). Due to the small number of Business Court divisions and the appointment of judges, sophisticated parties may prefer having their commercial disputes heard in the Business Courts. But the devil is in the details. If one of the Business Court districts that is not yet authorized is the appropriate district, a company may consider including one of the districts already operating in the forum selection clause.
What do opponents of the Business Courts say?
Opponents say that the Business Courts create two justice systems and that no empirical studies show the need for judicial reforms in Texas. Further, the 15th Court of Appeals will prevent Texans from appealing their cases directly to locally elected judges. Expect constitutional challenges to the Business Courts, including the argument that appointing judges violates the Texas Constitution, which requires district court judges to be elected. Opponents further argue that the limited jurisdiction of the Fifteenth Court of Appeals violates the Texas Constitution, which requires that the Court of Appeals must have appellate jurisdiction co-extensive with the limits of their respective districts. Another potential challenge is that the Business Courts may violate the right to a jury trial.
Won't the Texas Business Courts lead to more commercial litigation?
Possibly, and here's how. One of HB 19's purposes is to require written opinions to have a more well-developed body of case law on complex business disputes. Without cases being filed in the Business Courts, there can be no judgments or written opinions. The more cases filed, the more written opinions. It will, of course, take time for a body of case law from the Texas Business Courts and the 15th Court of Appeals to develop.
Finally, is there anything businesses should be doing to prepare?
Like it or not, the Business Courts will be here before you know it. Now is the time to prepare and plan. Companies should examine contracts and consider whether to have such disputes handled in the Business Courts.
By talking now to your legal department or outside counsel to determine how the Business Courts may impact your company, you may be one step ahead of your adversaries by better understanding how the Business Courts will work to resolve certain commercial disputes.
Alan Dabdoub is a partner with Lynn Pinker Hurst & Schwegmann, representing plaintiffs and defendants in business torts, contract disputes, trade secrets litigation, fiduciary duty litigation, partnership disputes, and bankruptcy litigation.
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Hawaii’s experience shows the way forward—and how difficult it will be to get there. ","LinkUrl":"/articles/legal-impacts-of-rising-sea-levels-in-hawaii/4842","LinkText":"Legal Impacts of Rising Sea Levels in Hawaii","LinkTarget":null,"LinkRel":null,"TrafficId":4842,"TrafficCategory":"article","InPartnership":false,"CssClass":"swiper-slide","AriaLabel":"ArticleWithImage","ViewName":"ArticleWithImage","ViewPath":"~/Views/Shared/Components/Cards/Articles/ArticleWithImage.cshtml"},{"AuthorRawName":"Ronald W. 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