On April 23, 2024, the FTC announced its final Rule banning non-compete clauses for most workers as unfair competition under federal law. This final Rule has already been challenged in two district courts in Texas. But even if it does not go into force across the entire country, individual states may decide to follow suit, becoming less hospitable to non-compete clauses currently held to be enforceable under state law. Senior counsel Brandon Winchester and associate Fraser Holmes outline key considerations—and potential solutions—for businesses seeking to minimize damage to their operations.

On March 6, 2024, the SEC voted 3-2 to adopt final rules requiring registrants to disclose climate-related information. However, a multitude of legal challenges to these rules have been consolidated before the Eighth Circuit, which is now tasked with determining their legality. As the litigation proceeds, the case will have important consequences for the regulatory power of federal agencies and the ultimate disclosure requirements for registrants. Partner Persis Dean and associate Gabe Slater outline key changes in the new rules and offer guidance for registrants seeking to prepare for compliance.

Four years on from the Supreme Court’s monumental decision in McGirt v. Oklahoma, the results have been a mixed bag for all parties involved. In their previous McGirt update, managing partner Andy Hicks and associate Dave Finkel analyzed potential tax and regulatory implications in the first few months following the decision. Now, with the benefit of hindsight, they update those initial predictions and reflect on McGirt’s effects in the Sooner State.

On January 17, 2024, the Supreme Court heard oral arguments in tandem cases Loper Bright Enterprises v. Raimondo and Relentless, Inc., et al. v. Dept. of Commerce, et al., which ask whether the court should overrule one of its most frequently cited precedents: the Chevron doctrine. Hicks Johnson staff attorney Jennifer Cordell explains the doctrine’s history and application, then outlines one of the court’s available paths in addressing the issue of statutory silence.

Federal courts have long held that Title VII discrimination must consist of material harm or disadvantage. However, on December 6, 2023, the Supreme Court heard oral argument in a Title VII case out of the Eighth Circuit, Muldrow v. City of St. Louis, that could radically lower this threshold – and reshape the landscape of workplace discrimination law entirely. Hicks Johnson associate Dave Finkel analyzes the decision’s potential implications, including challenges to employer DEI programs.

On December 4, 2023, the Supreme Court will hear oral argument in a case that may have major implications for bankruptcy law in the Fifth Circuit. While the Fifth Circuit has held that bankruptcy courts may not incorporate third-party releases, this case, Harrington v. Purdue Pharma L.P., et. al., challenges the legality of Purdue’s Chapter 11 bankruptcy reorganization plan on the grounds that the plan exceeds the Bankruptcy Code’s authorization by releasing claims held by non-debtors against other non-debtor third parties without the claimants’ consent. Partner Marc Tabolsky and associate Adam Greiner discuss the case’s background as well as its potential to reverse current Fifth Circuit precedent that denies the use of releases between non-debtors in Chapter 11 reorganization plans.

On June 2, 2023, the Texas Supreme Court agreed to hear Ammonite Oil & Gas Corp. v. Railroad Commission of Texas and EOG Resources, which concerns a state regulator’s rejection of 16 applications submitted by Ammonite to force pool its mineral estate with adjacent wells operated by EOG under the Texas Mineral Interest Pooling Act (MIPA). Now, the court is poised to weigh in on several points regarding the scope and interpretation of the MIPA. Partner Persis Dean and associate Kelly Swanson provide key details of the case as well as its potential implications.

The Texas Supreme Court recently clarified an issue that has been the source of extensive litigation for decades: the so-called “double fraction dilemma.” In a landmark victory, Hicks Johnson partner Marc Tabolsky successfully argued a dispute over a century-old deed containing a reservation of mineral rights that used a double fraction.

On Friday, May 12, the Texas Senate passed  a bill that would create a specialized business court to oversee complex civil litigation. Hicks Johnson senior counsel Katherine Ring provides an overview of key changes proposed by the bill, which aims to streamline the resolution of high-stakes business disputes statewide.

On July 9, 2021, President Joe Biden signed an executive order calling for stronger enforcement of antitrust laws to promote competition and curtail the consolidation of American industries. Since then, the DOJ has pursued a vigorous campaign of antitrust enforcement, including blocking purportedly anti-competitive mergers and addressing non-merger anti-competitive conduct. Hicks Johnson senior counsel Brandon Winchester and associate Kelly Swanson discuss the DOJ’s recent efforts and offer guidance for companies considering a merger in the current antitrust landscape.

Like any other type of litigation, trade secret cases rise or fall on the strength of the evidence that can be put before the factfinder. Yet before a lawyer can focus on what evidence they have to make or defend their case, they must first collect that evidence. With information technology being incorporated into every business at a lightning-fast pace, evidence has accordingly become increasingly complicated to source. The final part of this series outlines best practices for the identification, collection, and preservation of evidence for use in a trade secrets case.

As discussed in part one of this series, trade secret litigation presents a minefield of evidentiary challenges. But while the act of misappropriation is often simple enough to demonstrate, calculating the precise value of damages can be extremely difficult. This second article outlines the evidence needed to articulate a legally cognizable damages model.

Trade secret litigation is set to increase in the coming decades, accelerated by the enactment of the federal Defend Trade Secrets Act (“DTSA”) in 2016. Most cases do not contain direct evidence of stolen secrets, however. Instead, stray pieces of indirect evidence must come together to tell a larger story of theft. Consequently, lawyers handling this type of litigation must take the time to understand its intricacies and machinations, particularly the specific statutory requirements imposed by the uniform trade secrets acts (such as the Texas Uniform Trade Secrets Act, or “TUTSA”) and the evidence that will and will not satisfy these requirements.

A new three-part series by Hicks Johnson partner Varant Yegparian examines different concerns regarding evidence in trade secret cases, aiming to shed light on the correlative legal requirements to which this evidence is applied. This first article articulates the legal framework envisioned by TUTSA, addressing the requirements to prove the existence of a trade secret and to establish liability.

On July 1, 2020, the United States-Mexico-Canada Agreement (USMCA) took effect, replacing the 1994 North American Free Trade Agreement (NAFTA). The USMCA provides a three-year sunset period for investors to submit arbitration claims related to foreign investments established or acquired under NAFTA. Now that the practical deadline of April 1, 2023 has passed, investors can no longer access NAFTA’s dispute resolution mechanism and must file investment claims under the USMCA regime. A new article by Hicks Johnson managing partner Andy Hicks and associate Fatima Aslam outlines key changes that investors should look out for.

According to a recent decision handed down by the Delaware courts, corporate officers must now contend with a new avenue of liability: the duty of oversight. Previously, only a company’s board could face personal liability from derivative suits alleging failure to adequately oversee and mitigate the risks relevant to their duties. While courts have formerly held that corporate officers owe the same fiduciary duties of loyalty and care as directors, this decision clarifies that precedent by explicitly tethering officers to a duty of oversight. Senior counsel Brandon Winchester and associate Adam Greiner outline the implications of the decision as well as next steps for organizations seeking to mitigate risk.

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. Hicks Johnson 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,” Hicks Johnson 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 Hicks Johnson 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. Hicks Johnson 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. Hicks Johnson 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. Hicks Johnson 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. Hicks Johnson 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. Hicks Johnson senior counsel Brandon Winchester discusses.