- EMH Earns Arbitration Victories
- EMH Garners Appellate Win
- Firm Partners Speak on Various Topics
- Victory in Death Benefits Case
- EMH Opens Austin Office
- Three EMH Lawyers Earn Texas "Rising Star" Distinction
- Complete Arbitration Victory For Defense Contractor Client
- Calpine Obtains Multi-Million Dollar Judgement
- EMH Wins Arbitration Battle
- EMH Obtains Dismissal Of Nationwide Class Action Lawsuit Against Valero
- EMH Obtains Significant Victory in STOLI Litigation
- Edison Named Texas Super Lawyer
- EMH Partners Address Critical Issues in Stranger Owned Life Insurance Litigation
- Two Outstanding Lawyers Join EMH’s Ranks
- EMH Obtains Class Certification Denial in Antitrust Funeral Home Litigation
- Firm Partner Tom Hetherington Named a Texas Monthly “Rising Star”
HOUSTON (June 12, 2010) — EMH lawyers recently obtained two significant arbitration victories — one on the plaintiff side and one the defense side.
In the plaintiff's case, EMH lawyers successfully obtained an award for Industrias Promi de Occidente, S.A. de C.V. ("Promi") of Mexico in a commercial arbitration before the American Arbitration Association’s International Centre for Dispute Resolution. Promi entered into a contract with Advanced Processes, Inc. ("API") of Pennsylvania that required API to manufacture a silica granulator to certain specifications. When the granulator failed to perform as promised and API was unable to cure the defect, Promi filed a demand for arbitration. After an evidentiary hearing, Promi prevailed on its claims for breach of contract and negligent misrepresentation against API. In addition to awarding all actual damages incurred by Promi, the arbitrator adopted EMH’s argument that a contractual limitation of liability clause was inapplicable, and awarded Promi lost profits, attorneys’ fees, costs and interest. Matt Matthews, head of EMH's international arbitration section, represented Promi.
In the defense case, EMH won a complete victory for UniCare Life & Health Insurance Company ("UniCare") in an American Arbitration Association arbitration brought by a former agent alleging wrongful termination of his agency contract. The arbitrator found that UniCare acted properly in terminating the agent contract, that the former agent take nothing, and that the former agent pay costs. EMH partner Tom Hetherington represented UniCare.
HOUSTON (May 8, 2010) — The Fifth Circuit Court of Appeals has affirmed a summary judgment granted in favor of EMH client American General Life Insurance Company.
The Fifth Circuit held that Defendant Michael Kirsh, an agent of American General, must repay 100% of commissions paid to him on policies that were surrendered by the policy owners. The Fifth Circuit stated that “Kirsh’s contracts obligated him to repay 100% of the commissions on the two relevant whole life insurance policies if the policy owners exchanged them for term life insurance within three years of the policies’ effective dates. Because the policy owners did so, we affirm the district court’s grant of summary judgment.” In doing so, the Fifth Circuit rejected Kirsh’s arguments that he was not contractually obligated to repay the commissions and, even if he were, it would be at a rate of less than 100%. United States District Court Judge Kenneth Hoyt handled the case at the district court level.
EMH lawyers David McDowell and Jessica Wilson represented American General.
HOUSTON (May 2010) — EMH partners Andrew Edison, David McDowell and Tom Hetherington continue to speak on a number of legal topics at continuing legal education seminars.
Messrs. McDowell and Hetherington were invited to speak in April at the annual meeting of the Association of Home Office Underwriters in San Antonio, Texas on new developments in stranger originated life insurance litigation. Messrs. McDowell and Hetherington have substantial expertise in matters effecting the life, health and disability insurance industries, and are frequent speakers on the topic of stranger originated life insurance transactions.
Mr. Edison recently spoke as part of the Houston Bar Association's Changing Practice for Changing Times Series. Mr. Edison's topic: "Transitions: The Advent of Small and Medium-Sized Firms." Mr. Edison covered the various legal and ethical challenges of running a small-medium sized law firm in these challenging economic times.
HOUSTON (May 4, 2010) — EMH lawyers David McDowell and Alana Pulaski successfully defended American United Life Ins. Co. ("AUL") in a case seeking death benefits on an ERISA group life insurance policy. EMH’s client denied benefits and rescinded coverage on the basis of material misrepresentations made by the deceased during the application process. Specifically, AUL learned that the deceased had provided a false Social Security Number both to his employer and on his life insurance application and was not legally living or working in the United States. Because the deceased was not eligible for employment in the United States, EMH argued that he was ineligible for coverage under the group plan.
In a 38-page report and recommendation (see report and recommendation here), United States Magistrate Judge Caroline M. Craven recommended that the case be dismissed because AUL’s denial and rescission was appropriate under the applicable ERISA standards of review and federal common law governing rescission. United States District Court Judge David J. Folsom adopted the report and recommendation of the Magistrate in its entirety, dismissing the case. See Judge Folsom's opinion here.
AUSTIN (April 12, 2010) — Edison, McDowell & Hetherington LLP announced today that it has opened an office in Austin, Texas. The office will be lead by Eric Storm, formerly of Bracewell & Giuliani LLP.
“We are very excited to expand into the Central Texas region,” said firm partner David McDowell. “We handle cases all over the State of Texas and the state’s Capitol is a natural fit for our growing presence.”
EMH’s Austin office is located at 2802 Flintrock Trace, Suite 229, Austin, TX 78738.
HOUSTON (April 1, 2010) — Edison, McDowell & Hetherington LLP is pleased to announce that three of its attorneys -- Tom Hetherington, Courtney Scantlin and Eric Storm -- have been selected by Texas Monthly magazine as 2010 “Rising Stars.”
Mr. Hetherington, a founding partner of Edison, McDowell & Hetherington LLP, earns the “Rising Star” accolade for the sixth year. A fierce courtroom opponent, Mr. Hetherington has spent the past year criss-crossing the country to handle disputes for a wide range of corporate clients.
Ms. Scantlin was recognized as a “Rising Star” in employment law, where she counsels clients on employment issues and handles a myriad of employment-related litigation matters. Ms. Scantlin also maintains a general commercial litigation docket.
Mr. Storm recently joined the firm and will head the firm’s newly opened Austin office. A former Texas Supreme Court clerk, Mr. Storm enjoys a diverse commercial litigation docket.
The “Rising Star” award is based on a three-part system that determines the top 2.5 percent of the state's up-and-coming lawyers. First, over 65,000 Texas lawyers are surveyed and asked to nominate the best lawyers that they have personally observed in action. When the surveys are in, Texas Monthly conducts independent research of the nominees' credentials. Lastly, the final selection is made. "Rising Stars" are attorneys who are either 40 years old and under or who have been practicing for ten or fewer years.
Houston (March 2010) — A three-member arbitration panel has issued a resounding defense victory for an EMH client in a hotly contested arbitration proceeding.
EMH represented a defense contractor in a multi-million breach of contract case. After a week-long American Arbitration Association hearing, the arbitration panel issued a lengthy written opinion completely vindicating EMH’s client. The panel found that “[t]he arbitration was groundless and frivolous as to [EMH’s client]. There was no evidence that [EMH’s client] committed any wrong, and [the Claimant] failed even to articulate a viable legal cause of action.” The panel also held that EMH’s client was entitled to recover all of its attorney’s fees and expenses associated with the arbitration.
Andrew Edison led the defense effort, assisted by Jarrett Ganer and Matt Matthews.
HOUSTON (February 22, 2010) — EMH has obtained a multi-million judgment for Calpine Power Management, L.P. in a breach of contract case. Calpine, a major United States power company, sued Tara Energy LLC in state district court in Harris County, seeking millions dollars for Tara’s failure to pay for various energy services. For several years, Tara refused to acknowledge that it owed Calpine any money. Instead, Tara filed counterclaims in the litigation seeking tens of millions of dollars in damages under Texas antitrust laws. Harris County State District Court Judge Randy Wilson threw out Tara’s counterclaims on summary judgment and set the case for a February 22 jury trial. Minutes before jury selection, the parties entered into an Agreed Final Judgment that calls for Tara to pay Calpine a total of $2.65 million over the next several years.
EMH lawyers Andrew Edison and Alana Pulaski represented Calpine.
DALLAS (February 1, 2010) — United States District Court Judge Sam A. Lindsay of the Northern District of Texas has rejected an effort by Baylor University Medical Center to compel EMH client Nippon Life Insurance Company of America to arbitrate claims related to late payments under a hospital services agreement.
In a strongly worded opinion, Judge Lindsay held that, while Nippon did agree to pay claims according to the hospital services agreement, it was never technically a party to it and, therefore, could not be forced to arbitrate under its terms. An article about the case can be found here.
EMH lawyers Tom Hetherington and Jarrett Ganer represented Nippon.
LOS ANGELES (September 30, 2009) — A federal judge in Los Angeles has dismissed a nationwide consumer class action lawsuit filed against a number of leading energy companies, including firm client Valero California Retail Company.
The Plaintiffs, consumers of gasoline, alleged that the defendants failed to deliver 100 percent of the fuel at the octane rating advertised when Plaintiffs purchased fuel at a higher octane rating than the previous customer at a single-nozzle pump. United States District Court Judge George H. King granted the Defendants’ Motion to Dismiss the Second Amended Complaint, finding that Plaintiffs’ claims were precluded by the combination of California laws and regulations that render Defendants’ conduct with respect to single-nozzle dispensers the only lawful means to deliver fuel. Judge King’s opinion can be found here.
EMH lawyers Andrew Edison and Jessica Wilson represented Valero in the lawsuit. Other defendants included Chevron USA, Inc., Exxon-Mobil Corporation, ConocoPhillips Company, BP Products North America Inc. and Equilon Enterprises, LLC.
(March 3, 2010) — EMH client PHL Variable Insurance Company (“Phoenix”) and life insurance companies across the country obtained a significant victory today on one of the most debated and fiercely contested issues in Stranger Owned Life Insurance (“STOLI”) litigation: whether an insurer can rescind an insurance policy while retaining policy premiums as an offset against damages the insurer suffered as a result of the policy’s issuance.
Chief Judge Michael J. Davis of the United States District Court for the District of Minnesota issued a Memorandum Opinion and Order providing Phoenix with all of its requested relief in PHL Variable Insurance Company v. Lucille E. Morello 2007 Irrevocable Trust; Cause No. 08-572. A copy of the Memorandum Opinion and Order can be found here. In November 2007, the Lucille E. Morello 2007 Irrevocable Trust (the “Morello Trust”) submitted a claim to Phoenix, seeking payment of $10,000,000 in death benefits. After Phoenix’s contestability investigation did not substantiate the financial representations made in the application -- that Ms. Morello had a net worth of $34 million and income in excess of $800,000 annually -- Phoenix filed suit, seeking to rescind the policy while also seeking to offset premiums paid by the Trust against the damages Phoenix had suffered, including commissions paid to insurance producers and its attorney’s fees.
The Morello Trust counter-claimed, seeking payment of the death benefit and asserting bad-faith claims. After discovery revealed the expansive nature of the fraud, the Morello Trust agreed to policy rescission and retention of premiums by Phoenix. Premium financier New Stream Insurance, LLC, intervened, seeking to preclude Phoenix from rescinding the policy without fully refunding premiums. After extensive briefing and argument by the parties, the Court issued a 16 page memorandum opinion and order, ruling in Phoenix’s favor on all issues and holding that Phoenix would be permitted to retain premiums paid on the policy. This represents the first opinion on this issue in Minnesota STOLI litigation, and represents one of the first opinions in the nation.
HOUSTON (October 1, 2009) — Andrew Edison, a founding partner of Edison, McDowell & Hetherington, has been named among the top lawyers in Texas in the Texas Super Lawyers list published in Texas Monthly magazine.
The prestigious Texas Super Lawyers list highlights just 5 percent of the approximately 70,000 attorneys in the State of Texas. Honorees are singled out through a peer nomination process, followed by a blue-ribbon panel review and independent research performed by Texas Super Lawyers editors. The final list published by Law & Politics Media Inc. appears in the October issue of Texas Monthly.
Mr. Edison has developed a reputation as a skilled courtroom litigator and trusted advisor to businesses. His thriving practice encompasses a wide variety of litigation, including securities fraud, antitrust, complex business litigation and eminent domain work. He is currently head of the trial section at Edison, McDowell & Hetherington.
HOUSTON (April 16, 2009) — Named partners David McDowell and Tom Hetherington recently spoke at the 2009 Life Insurance Conference in Orlando, Florida on critical issues in stranger owned life insurance litigation (“STOLI”). Messrs. McDowell and Hetherington shared their experience in recent STOLI cases, outlined recent developments in case law, discussed new strategies being used by STOLI promoters and addressed the impact the global economic downturn has had on STOLI activity.
Messrs. McDowell and Hetherington are frequent speakers on matters affecting the life insurance industry and have substantial expertise on STOLI related issues. They have filed and defended numerous cases involving stranger and investor originated life insurance transactions, and offer in depth knowledge of state insurable interest laws, life insurance fraud, financial underwriting issues, and other issues involved in STOLI related litigation.
For more information regarding STOLI litigation please contact Mr. McDowell (713-337-5582) or Mr. Hetherington (713-337-5583) directly.
Edison, McDowell & Hetherington is a Texas-based litigation boutique with offices in Houston and Dallas/Ft. Worth. The firm serves clients throughout Texas and across the United States.
HOUSTON (April 16, 2009) — Edison, McDowell & Hetherington LLP announced today that Alana K. Pulaski and Ruben J. Olvera have joined the firm, further bolstering the firm’s experience in complex commercial matters.
A 2001 graduate of Emory School of Law, Ms. Pulaski served as law clerk to the Honorable Justice Xavier Rodriguez at the Texas Supreme Court. She then spent seven years as a trial attorney at Bracewell & Giuliani LLP, where she handled a wide variety of commercial litigation matters. Ms. Pulaski has experience in life, health and disability insurance litigation, employment-related litigation, ERISA litigation, financial services litigation and energy industry matters. Ms. Pulaski's drive and ambition extend outside the office, where she enjoys distance running and has completed the Houston marathon and various half marathons.
Mr. Olvera maintains a general civil litigation practice, with experience in construction litigation, real estate litigation, factoring litigation, employment litigation, and insurance and financial services litigation. Mr. Olvera earned his undergraduate degree from Texas A&M University and his law degree from South Texas College of Law. Prior to joining Edison, McDowell & Hetherington LLP, Mr. Olvera was an associate at Coats, Rose, Yale, Ryman & Lee.
“Alana and Ruben are terrific lawyers and outstanding people,” said named partner Andrew Edison. “We are thrilled they both have chosen to join our firm. Their considerable experience in highly complex and diverse commercial matters provides a tremendous resource for firm clients.”
HOUSTON (April 1, 2009) — United States District Court Judge Kenneth Hoyt has adopted a magistrate judge’s recommendations to deny class certification in two highly publicized class action antitrust lawsuits targeting the funeral industry. Andrew Edison of Edison, McDowell & Hetherington and J. Clifford Gunter III of Bracewell & Giuliani LLP successfully represented Service Corporation International, the world's largest funeral and cemetery company, in the two antitrust cases.
For an article about the case, see here.
The cases began in 2005 when a consumer advocacy group sued the country's three largest funeral home chains and a leading casket maker, charging that the defendants conspired to keep casket prices high and shut out casket discounters in violation of federal antitrust laws. The two purported class action lawsuits, which were originally filed in federal court in San Francisco, California and then later transferred to the Southern District of Texas, were brought on behalf of casket consumers and independent casket retailers across the United States. Plaintiffs were seeking more than $1 billion in damages. The cases are expected to be appealed to the Fifth Circuit Court of Appeals.
HOUSTON (April 1, 2009) — Edison, McDowell & Hetherington partner Tom Hetherington has been selected by Texas Monthly magazine as a “Rising Star” for the fifth time.
The “Rising Star” award is based on a three-part system that determines the top 2.5 percent of the state's up-and-coming lawyers. First, over 65,000 Texas lawyers are surveyed and asked to nominate the best lawyers that they have personally observed in action. When the surveys are in, Texas Monthly conducts independent research of the nominees' credentials. Lastly, the final selection is made. "Rising Stars" are attorneys who are either 40 years old and under or who have been practicing for ten or fewer years.
Mr. Hetherington, a founding partner of Edison, McDowell & Hetherington LLP, has established himself as one of the top young legal minds around. He enjoys a diverse docket of commercial litigation matters and takes great pride in his trial successes. Mr. Hetherington was previously a Texas Monthly “Rising Star” in 2004, 2005, 2006 and 2008.
