Volume 47, Issue No. 1 (Winter 2017)

Does Halliburton II Allow Defendants to Prove a Lack of "Correctiveness" to Defeat Class Certification?

In Halliburton Co. v. Erica P. John Fund, Inc. (“Halliburton II”), the U.S. Supreme Court held that defendants in federal securities fraud cases may defeat class certification by proving a lack of “price impact” at the class certification stage. This holding gave defendants in such cases a significant new opportunity to defeat class certification. But lower courts so far have not given Halliburton II the robust application that Halliburton and other corporate defendants may have hoped for.

The Texas Margin Tax: Is It Time For The Curtain Call?

On January 1, 2008, the business landscape changed dramatically for tens of thousands of Texas-based businesses. This change was the result of legislation that made significant revisions to the Texas franchise tax (now commonly called the “margin” tax) by expanding its scope to include entities that never before had been subject to the tax and significantly altering how the tax is calculated. To put it mildly, the margin tax has not been well received, and it is doubtful that it will reach its tenth anniversary.

Filling in the Gaps: Shareholder Oppression After Ritchie v Rupe, Part 1

On June 20, 2014, the Texas Supreme Court’s decision in Ritchie v. Rupe initiated a seismic shift in Texas law governing the protection of minority shareholders in closely-held corporations and limited liability companies. After almost thirty years of steady appellate court development of a judicial remedy for oppressive conduct against minority shareholders, recognizing the trial court’s power to force an oppressive controlling shareholder to purchase the oppressed minority shareholder’s stock for a fair value, the Texas Supreme Court suddenly announced that no common law cause of action for oppression existed and that Texas courts had no power to order a buy-out under the statutory remedy for oppression. This article provides an insight into how effective Texas law governs the relationship between shareholders and corporations in light of the Ritchie v. Rupe decision. The author aims to evaluate the extent that the law has left a “gap” in the protection to individual minority shareholder interest after Ritchie, and explore how the court should interpret existing legal rights, corporate duties and remedies to fill in these gaps.

WHETHER UCC ARTICLE 4 IN TEXAS PREEMPTS COMMON LAW FRAUD AND BREACH OF CONTRACT CLAIMS IN THE RELATIONSHIP BETWEEN A BANK AND ITS CUSTOMER

Under Texas law, the UCC regulates a bank’s handling of deposits and collections for its customers. American Dream Team, Inc. (“ADT”) filed suit against Citizens State Bank (“Bank”) alleging that Bank had improperly charged back $30,000.00 against its account for a provisional credit extended on a counterfeit check. The trial court granted summary judgment to Bank, and ADT appealed. There are two pertinent issues in this review: (1) whether Uniform Commercial Code Article 4 (the “Code”) preempts a claim of common law fraud when looking at communication between a bank and its customer; and (2) whether the Code preempts common law rules concerning breach of contract. The Tyler Court of Appeals (the “Court”) held that: (1) if the Code is silent on an issue, common law may supplement the Code; and (2) the Code preempts common law breach of contract claims.

ARE ARBITRATION CLAUSES IN ENGAGEMENT LETTERS BINDING WHEN THE CLIENT DOESN’T SIGN AND THE PARTY SUING IS DOING SO DERIVATIVELY?

WHETHER AN AGREEMENT TO ARBITRATE DISPUTES IS ILLUSORY AND THUS UNENFORCEABLE WHEN ONE PARTY HAS THE POWER TO TERMINATE ITS OBLIGATION AT ANY TIME, EFFECTIVE IMMEDIATELY WITHOUT ADVANCE NOTICE OF TERMINATION

WHETHER A COURT SHOULD MANDATE ARBITRATION PURSUANT TO AN AGREEMENT WHEN THE MOVANT CHALLENGES THE FORMATION OF THAT AGREEMENT

Advice: Do not walk into a trap, especially one of your own making. The Maxwell Family Partnership walked into a trap when it sought to compel arbitration of a dispute involving an asserted partnership agreement with the Kents, while at the same time vigorously arguing that the asserted partnership agreement containing the arbitration clause was never formed because of lack of consideration.1 Accordingly, the appellate court affirmed the trial court’s decision in denying the attorney’s motion to compel arbitration.