Practice Area Highlights
Butler Snow attorney Alison Tasma Vance recently obtained a defense verdict in a two-week sexual harassment trial in federal court, a case that was featured in the August 2010 edition of Federal Jury Verdict Reporter. The jury returned a unanimous verdict for the Firm’s client. Vance is a member of Butler Snow’s Labor and Employment Group and has successfully defended companies such as Baxter Healthcare Corp., Regions Bank, Beau Rivage Resorts Inc. and West Fraser.
Mississippi – Members of Butler Snow’s Commercial Litigation Group have been representing ConocoPhillips Company in a significant global warming lawsuit in federal court. Private plaintiffs whose property was damaged by Hurricane Katrina sought money damages from oil and energy companies on the theory that the defendants’ greenhouse gas emissions caused or strengthened the storm, and therefore damaged the plaintiffs. The district court dismissed the suit, determining that under the political question doctrine, issues concerning the level of greenhouse gas emissions should not be determined by the courts, but rather by the executive and legislative branches of government. The court also found that the plaintiffs lacked Article III standing to assert these claims. Plaintiffs appealed the dismissal to the Fifth Circuit Court of Appeals, and in an unusual turn of events, an en banc panel of the Fifth Circuit dismissed the appeal. The Butler Snow team was led by Kenneth W. Barton and Benjamin M. Watson.
Mississippi – Shortly before trial in the United States District Court for the Southern District of Mississippi, Butler Snow obtained favorable rulings that excluded the plaintiff’s causation expert and granted a motion for summary judgment on behalf of Varn International, Inc. In this wrongful death action, the heirs of a woman who died from leukemia blamed her illness and death on exposure to a cleaning product that allegedly contained benzene. There was no evidence showing that the product contained benzene. Also, the plaintiff did not offer sufficient evidence to demonstrate that benzene could cause the particular type of leukemia from which the plaintiff died, nor was there any proof that the plaintiff received a toxic exposure of the product in question. The Butler Snow team was led by Kenneth W. Barton, James H. Bolin and Mark A. Dreher.
New York – Members of Butler Snow’s Pharmaceutical, Medical Device and Healthcare Industry Group, returned another defense verdict for Merck & Co. in the second case to go to trial over claims the company’s osteoporosis drug Fosamax causes a medical condition known as “jaw death." The jury’s decision in the case tried in U.S. District Court, Southern District of New York (Manhattan), was announced Wednesday, May 5, 2010. The plaintiff alleged she developed osteonecrosis of the jaw (ONJ) from taking Fosamax. The federal jury ruled that she didn’t have ONJ upon hearing evidence presented by Merck’s legal team. U.S. District Judge John Keenan oversaw the trial. In September 2009, Keenan declared a mistrial in the first Fosamax case to go to a jury over claims the drug might hamper blood flow to the jaw. The Butler Snow team was led by Christy D. Jones with the support of Alyson Bustamante Jones and Adam J. Spicer.
Mississippi – Members of Butler Snow’s Commercial Litigation Group successfully tried a contractor negligence case in the United States District Court for Mississippi Phosphates Corporation (MPC) against Analytic Stress Relieving, Inc. (ASR), a post-weld heat treatment specialist. The suit alleged that ASR negligently performed its post-weld heat treatment, thereby warping certain components of MPC’s boiler. At the conclusion of a 5-day trial, the jury awarded MPC a total of $3,101,506 in damages, with 40% of the fault attributable to ASR. The Court, therefore, entered a $1,240,602 judgment against ASR, and, in a recent ruling, the district court denied ASR’s motion for a judgment notwithstanding the verdict. The Butler Snow team included Phil B. Abernethy, Robert M. Frey, John A. (Jack) Crawford, Jr. and Patrick T. Bergin.
New York – Butler Snow recently obtained an excellent result in the federal sentencing of a former partner of Ernst & Young, convicted in the Southern District of New York of several counts involving tax strategies. Although the guideline range was 240 months, the firm’s team was able to successfully argue that the circumstances of this case and our client warranted a sentence well below the guideline range. Judge Sidney H. Stein agreed and imposed a sentence of only 20 months with no fine. The sentence marked the shortest given to any of the defendants, and it was well below the sentence prosecutors sought and that which probation had recommended. The Butler Snow team was led by Amanda B. Barbour with the support of James B. Tucker, Robert G. (Bob) Anderson and James K. (Jay) McDaniel.
Tennessee - Butler Snow successfully represented Chickasaw Nation Industries in a matter of tribal sovereign immunity before the United States Court of Appeals for the Sixth Circuit. Memphis Biofuels, LLC v. Chickasaw Nation Industries, Inc., 585 F.3d 917 (6th Cir. 2009). Chickasaw Nation Industries is a corporation wholly owned by the Chickasaw Nation tribe of Oklahoma, but is an entity separate and distinct from the Chickasaw Nation. When CNI repudiated a contract with a Tennessee corporation, that corporation sued CNI in federal court seeking to compel arbitration. The District Court dismissed for lack of jurisdiction, and the Sixth Circuit affirmed. In a matter of first impression, the Court found that the federal statute under which CNI was chartered created an “arm of the tribe” entitled to the same sovereign immunity as the tribe itself. The tribe had imposed certain conditions upon any waiver of sovereign immunity in the corporation’s charter, and those conditions had not been met. Thus, CNI was immune from suit. The Butler Snow team was led by Donna Brown Jacobs, Randall D. Noel and Daniel W. Van Horn.
Mississippi – Butler Snow recently served as Community Development Entity Counsel, Bond Counsel, State Equity Investment Counsel and Economic Development Incentives Counsel in a $23,000,000 New Markets Tax Credits (NMTCs) financing transaction combining federal and state NMTCs, Mississippi Business Finance Corporation Gulf Opportunity Zone (GO Zone) Bonds and state and local economic development incentives. The project involved the construction of a medical office building located on the campus of Singing River Hospital in Pascagoula, Mississippi, which should be a great benefit to the community that is in much need of new state of the art facilities to house healthcare services. Utilization of the federal and state NMTC program, GO Zone bond financing and other economic development incentives resulted in substantial economic benefits to the project, including private equity investment, below market interest rates and state and local tax savings. The Butler Snow team included members of the Public Law and Finance Group: John England, Jet Hollingsworth, Gene Magee, Jack Nichols and Kim Smith.
Chicago – Butler Snow recently served as Trial Counsel in a product liability case against Johnson & Johnson and McNeil Consumer Healthcare in connection with Children’s Motrin and Stevens-Johnson Syndrome/ Toxic Epidermal Necrolysis (Karen Robinson v. Johnson & Johnson, et al.). The suit alleged that Karen Robinson, an adult at the time of her injury, suffered optical problems (including the loss of sight from one eye) and Toxic Epidermal Necrolysis as a result of her use of Children’s Motrin. At the conclusion of a 7-day trial, Chief Judge Holderman of the Northern District of Illinois entered judgment for the Defendants. The Butler Snow team was led by Kari L. Sutherland, Michael B. Hewes, Ben J. Scott, and Kerri Benson, all members of the firm’s Pharmaceutical, Medical Device and Healthcare Industry Group.
New Jersey - Members of Butler Snow’s Product Liability; Pharmaceutical, Medical Device and Healthcare Industry; and Appellate and Written Advocacy Practice Groups teamed up to obtain summary judgment for Baxter Healthcare in a case filed in U.S. District Court in New Jersey. Plaintiff alleged that Baxter’s prescription-only intravenous therapy Polygam caused thrombotic events that ultimately led to renal function loss. Plaintiff claimed that the prescribing information accompanying the therapy did not adequately warn physicians of the risk of thrombotic events. The District Court granted summary judgment in Baxter’s favor, finding that Plaintiff’s prescribing physician clearly understood that thrombotic events were a possibility following IVIG therapy and that ”the warning communicates adequate information on the dangers and safe use of the product.” Plaintiff appealed the judgment to the U.S. Court of Appeals for the Third Circuit, which affirmed the judgment in Baxter’s favor. Butler Snow lawyers on the team included Lee Davis Thames, William M. Gage and Donna Brown Jacobs.
Tennessee – Butler Snow recently obtained a favorable result on behalf of Vintage Health Resources (Vintage Health Resources Inc. v. Guiangan, No. W2008-1288, 2009 WL 2601327, August 25, 2009). The matter arose from the recruitment of a nurse from the Philippines by Tennessee-based Vintage Health Resources Inc., a nurse recruiting company, and involved a breach of contract regarding a three-year employment agreement with Vintage. When Vintage sued for damages caused by the breach, the nurse argued that the contract was unenforceable. The nurse claimed that the agreement was unconscionable due to differences between recruitment materials and the ultimate contract and because of the unequal bargaining power between the parties. The Tennessee Court of Appeals held that the agreement at issue was “far from” one-sided and was not “unreasonably harsh” or “oppressive.” The court further held that public policy was not violated by the terms of the contract or by the conduct of Vintage in threatening to report the nurse to immigration authorities because such threats occurred after the breach and did not change his conduct in leaving the company before his three-year term expired. The Butler Snow team was led by Elizabeth E. Chance of the firm’s Appellate and Written Advocacy Group.
Mississippi – Butler Snow recently obtained a unanimous defense verdict for AT&T (Nielsen v. AT&T) in a breach of contract and intentional interference with contract action in the Second Judicial District of Tallahatchie County, Mississippi. Plaintiffs sought actual damages in excess of $1 million and also sought punitive damages. Following a three-day trial and brief deliberations, the jury returned a 12-0 verdict for AT&T. The Butler Snow team was led by Frank M. Holbrook and Eric E. Hudson, members of the firm’s Commercial Litigation Group.
Appellate and Written Advocacy
Product Liability
Jackson, Miss. – The Mississippi Court of Appeals recently affirmed summary judgment in favor of Doosan Infracore America Corporation, f/k/a Daewoo Heavy Industries America Corporation in a product liability suit (Townsend v. Doosan Infracore American Corp., 3 So.3d 150 (Miss. Ct. App. 2009). Butler Snow initially obtained summary judgment for Doosan in the Circuit Court of Hinds County, and the team successfully defended that ruling on appeal. The appellate court agreed with Doosan Infracore’s argument that the methods employed by plaintiff’s expert were “result-oriented tests,” which failed to meet either the relevancy or reliability standards outlined in Daubert. The team was led by Butler Snow’s Mike McWilliams, LeAnn Nealey, Bobby Miller and co-counsel Michael Bai of Littleton Joyce.
New Jersey – Butler Snow recently served as Lead Counsel in the second product liability case against Johnson & Johnson and McNeil Consumer Healthcare in connection with Children’s Motrin and Stevens-Johnson Syndrome (
Kimberly Zundel, et al., v. Johnson & Johnson, et al.) The trial resulted in a unanimous defense verdict. The suit alleged Stephanie Zundel, approximately 3-years-old at the time of injury, lost her sight and suffered from Stevens-Johnson Syndrome as a result of her use of Children’s Motrin. The Butler Snow team was led by
Christy D. Jones,
Michael B. Hewes,
Kari L. Sutherland,
Ben J. Scott and Diane Wigley, all members of the firm's
Pharmaceutical, Medical Device and Healthcare Industry Group.
Tennessee – The Tennessee Court of Appeals Circuit Court of Appeals affirmed a $4 million jury verdict in favor of Butler Snow client David Jordan in Jordan v. Burlington Northern et al., 2009 WL 112561 (Tenn. App., January 15, 2009), an F.E.L.A. case. Mr. Jordan, assigned by his employer, the Norfolk Southern Railroad, to work in a space with insufficient clearance, was struck by a passing train and suffered multiple injuries. The Butler Snow Appellate Group, led by Robert M. Frey, was retained by Mr. Jordan's trial counsel to defend the verdict on appeal.
New Orleans – The Fifth Circuit Court of Appeals recently affirmed summary judgment in favor of Baxter Healthcare Corporation in an employment case. Butler Snow initially obtained summary judgment for Baxter in the U.S. District Court for the Northern District of Mississippi, and the team successfully defended that ruling on appeal; the Fifth Circuit ruled that the district court's dismissal of the plaintiff's discrimination and retaliation claims was warranted. The Butler Snow team was led by Alison Tasma Vance and Paula Graves Ardelean.
California – Butler Snow recently served as Lead Counsel in the first product liability case against Johnson & Johnson in connection with Children’s Motrin and Stevens-Johnson Syndrome (Sabrina Brierton Johnson v. Johnson & Johnson, et. al.). The suit, filed in Los Angeles Superior Court, alleged the company failed to label the over-the-counter pain reliever with proper warnings. After a six-week trial, jurors voted against liability. The Johnson family had sought nearly $1 billion in damages. The Butler Snow team was led by Christy D. Jones, Michael B. Hewes, Kari L. Sutherland, Alyson Bustamante Jones and Diane Wigley.
Tennessee – Butler Snow successfully defended Chickasaw Nation Industries, Inc. (CNI), the commercial arm of the Chickasaw Nation, in a $20 million breach of contract lawsuit filed in U.S. District Court for the Western District of Tennessee. The firm obtained a dismissal with prejudice on sovereign immunity grounds that expressly found for the first time that CNI enjoys the same immunity as the Chickasaw Nation. The Butler Snow team was led by Daniel W. Van Horn and Randall D. Noel.
Mississippi – Butler Snow recently served as counsel in connection with the formation and capitalization of a joint venture between a local client of the firm and its affiliates and an Indiana-based company that is affiliated with an Italian heavy equipment parts manufacturer. The transaction involved the combination of operations located primarily in the southern and mid-western states as well as operations in Canada. The financial terms are confidential. The Butler Snow team was led by R. Barry Cannada and Selby A. Ireland and included project teams from a variety of practice groups, including teams from the Corporate and Securities Group led by Benjamin W. Roberson; the Real Estate Group led by Debora L. Horn; the Labor and Employment Group led by Jeffrey A. Walker and Ann Bowden-Hollis; the Tax Group led by W. Eugene Magee and Gilbert C. Van Loon and the Environmental Group led by Michael D. Caples.
White Collar Crime
Fraud and Trafficking in Counterfeit Goods
Louisiana – Butler Snow recently served as counsel in a criminal case in which our client, the operator of a local convenience store, was charged with conspiracy to defraud the United States and trafficking in counterfeit goods and services. Because of the firm’s compelling argument, the government voluntarily filed a Rule 48(a) motion for dismissal without prejudice. Judge Robert James, U.S. District Judge in the Western District of Louisiana, accepted the motion and signed an Order granting dismissal of all charges. The Butler Snow team was led by Robert G. Anderson of the firm’s White Collar Crime and Government Investigations Group.
Mississippi – Butler Snow recently defended Cato Corporation in an employment case in which the plaintiff claimed that Cato discriminated and retaliated against her and asserted malicious prosecution and abuse of process claims. After considering the briefs submitted by the Butler Snow team, U.S. District Judge Tom S. Lee ruled in favor of Cato, dismissing all claims and awarding costs to Cato. The Butler Snow team was led by Paula Graves Ardelean and Erin P. Lane of the Labor and Employment Group.
Tennessee – Butler Snow recently defended Lance, Inc. and its subsidiary in an alleged breach of production and distribution agreement with over $1 million in alleged lost commissions. On the eve of trial, Judge Thomas Anderson, in the U.S. District Court for the Western District of Tennessee, granted the defense motion for summary judgment and dismissed Plaintiff's case in its entirety. The Butler Snow team was led by Randall D. Noel, Ben J. Scott and Amy M. Pepke.
Tennessee – Butler Snow successfully defended Community Connect, Inc. (d/b/a the BlackPlanet.com website) in a Tennessee state court action in which the plaintiff claimed libel, invasion of privacy, and a violation of Tennessee’s Personal Rights Protection Act in connection with the posting of a photograph and other information on the defendant’s website. After Butler Snow filed a motion to dismiss challenging personal jurisdiction over the New York-based, Internet company, plaintiff capitulated and consented to a dismissal with prejudice for lack of personal jurisdiction prior to a hearing on the motion. As a result, Community Connect was dismissed outright, without incurring any further expenses or providing any settlement funds. The Butler Snow team was led by Randall D. Noel and Melody McAnally of the firm's Commericial Litigation Group.
Mississippi – Butler Snow recently served as counsel in a multi-million-dollar transaction that helped form one of the nation’s largest check collection companies. Located in Oxford, Mississippi, Security Check, LLC, the country’s fourth-largest check collection company prior to the sale, was purchased by a Midwestern private equity fund. The Butler Snow team was led by R. Barry Cannada, Selby A. Ireland and Benjamin W. Roberson and included other members from the Corporate and Securities Group as well as members from the Tax and Employee Benefits Groups.
Mississippi – Butler Snow recently secured summary judgment for a Fortune 500 pharmaceutical and medical device company in a Title VII matter where the plaintiff alleged her employment was terminated because of her race and in retaliation for complaining about race discrimination. The Court granted summary judgment in the client’s favor on both claims. Butler Snow Attorney Alison T. Vance led the firm’s effort.
Mississippi – Butler Snow recently obtained a summary judgment for Community First Holdings, Inc., d/b/a Picayune Item in a defamation case pending in the United States District Court for the Southern District of Mississippi (Jerry Hegwood v. Community First Holdings, Inc., d/b/a Picayune Item, No. 1:06cv1105-LG-JMR (March 12, 2008)). Plaintiff filed a suit for defamation and gross negligence based on the news article, “Deputies make several arrests,” published by the Picayune Item. The news article – based on an official news release prepared and distributed by the Pearl River County Sheriff’s Department – reported about Plaintiff’s arrest by the Sheriff’s Department for home repair fraud. The Court dismissed Plaintiff’s defamation claim on the ground that the article was a fair and accurate republication of an official report and, accordingly, was protected by the official report privilege. In dismissing Plaintiff’s gross negligence claim for Defendant’s failure to retract, the Court held that Mississippi’s Retraction Statute, Miss. Code Ann. § 95-1-5 (2008), does not create a duty under Mississippi law to retract. The Butler Snow team was led by John C. Henegan and Malissa Winfield.
Mississippi – Butler Snow obtained a defense verdict on Wednesday, February 27, 2008, in a premises liability case against a major department store in which the plaintiff alleged she was injured while shopping and sustained mild brain damage. The jury deliberated about an hour before returning a defense verdict in the case, tried in federal court in Jackson before The Honorable Henry T. Wingate. The Butler Snow team was led by Chad R. Hutchinson.
Mississippi – A judgment obtained by Butler Snow for ATT-Mississippi (f/k/a BellSouth Telecommunications, Inc.) was recently affirmed on appeal in Ty and Lisa Marie Wamsley v. BellSouth, Warren County Chancery Court, Cause No. 2006-351 (January 8, 2008). The Wamsleys sued BellSouth in trespass seeking damages and relocation of a utility pole that was in their front yard when they purchased their home. After a bench trial, the trial court held (and the appellate court affirmed), that BellSouth’s installation of its pole and attachments on the original landowner/developer’s undivided property, at his request, does not constitute trespass. A subsequent purchaser of one of the severed parcels (like the Wamsleys), therefore, could not make BellSouth a trespasser for maintaining the utility facilities previously installed. The Butler Snow team was led by LeAnn W. Nealey and John C. Henegan.
Mississippi – Butler Snow recently obtained a summary judgment for Yamaha Motor Corp., U.S.A., and Yamaha Motor Co. Ltd. in a product liability case pending in the United States District Court for the Southern District of Mississippi (Baggett v. Yamaha Motor Corp., U.S.A., No. 3:06-CV-00184-TSL-JCS, slip op. (S.D. Miss. Jan. 11, 2008)). The Court dismissed the case because the plaintiff intentionally dismantled the Yamaha all-terrain vehicle ("ATV") before Yamaha had the opportunity to examine the ATV in the condition it was immediately after two alleged accidents, for which the plaintiff was suing. The Court recognized that although up to that point the remedy for the spoliation of evidence in the Fifth Circuit was an "adverse inference," the Court joined other federal district and circuit courts in recognizing that because (1) the plaintiff intentionally destroyed the evidence, (2) the plaintiff knew the relevance of the evidence to his case, and (3) the defendants were substantially prejudiced by its destruction, the outright dismissal of the case was warranted. Also significantly, the Court held a recall notice was not sufficient by itself to establish a defect caused the alleged accidents. The plaintiff still had to prove such a defect caused the accidents through an expert witness or other evidence. The Butler Snow team was led by Robert A. Miller and Trey E. Bourn.
Wireless Industry Negotiation
Mississippi - Butler Snow represented the Mississippi Wireless Communication Commission and the Mississippi Department of Information Technology in their successful negotiation and signing on June 29, 2007, of a $220 million contract to build the Mississippi Wireless Integrated Network. The MSWIN project, one of the largest single public works projects in the state’s history, will deploy a wireless voice and data capable infrastructure over the next six years to provide all users a public-safety grade, statewide, interoperable, seamless roaming radio system. The system is intended to provide highly reliable, fast access, for the state’s emergency-responders and public safety personnel. The Butler Snow team was represented by Mark Garriga, Johnny Healy and Ron Taylor.
Mississippi - Butler Snow represented Oxford Publishing, Inc. its affiliates and their respective shareholders in connection with the sale of all of their stock to Questex Media Group, Inc., a global business-to-business diversified media company based in Newton, Massachusetts. Among other things, Oxford Publishing conducts the nation’s largest beverage and food trade show annually in Las Vegas, Nevada. Butler Snow supervised a multi-stage auction process for the selling companies and served as transaction counsel in connection with the consummation of the sale. The Butler Snow team was led by Barry Cannada and Sai Ireland and included Paul Varner, Jack Nichols, Gilbert Van Loon, Johnny Healy, Jim Montgomery and Marcie Davant.
Uniform Commercial Code
Mississippi - Butler Snow successfully defended Highside Chemicals, Inc. in a commercial dispute against claims under the Uniform Commercial Code and tort law brought by a Canadian manufacturer of automotive service equipment claiming economic damages in excess of $4.5 million. Anita Modak-Truran and Mark Dreher of Butler Snow's Jackson office and Bob Galloway from Butler Snow 's Coast office tried the case for Highside Chemicals, Inc. in Federal Court in Gulfport, MS. After an eight day trial, the jury returned a defense verdict in favor of Highside Chemicals, Inc. on all claims.
Chemicals
Michigan - A team of Butler Snow attorneys led by Lee Davis Thames recently prevailed in a chemical exposure case involving 256 individual plaintiffs. The case was in the U.S. District Court, Eastern District of Michigan. Eric Hudson worked with Thames to develop the discovery necessary for dispositive motions, and attorneys in the firm's Appellate and Written Advocacy Group prepared both dispositive motions and numerous Daubert motions. Donna Jacobs, Practice Group Leader, argued the dispositive motions. In March 2007, the Court entered judgment as a matter of law in favor of Butler Snow's client.
Mergers, Acquisitions & Restructuring
Tennessee - Butler Snow represented West Fraser Timber Co, Ltd. in the purchase of 13 lumber mills located in seven southern states from International Paper Company for approximately $325 million. Butler Snow served as lead US counsel on the transaction and worked with West Fraser's Canadian counsel, Lang Michener LLP, to complete the acquisition and associated financing, and real estate matters for the acquisition and related timber supply agreements. The Butler Snow team was led by G. Robert Morris, and included Joey Dudek, Gregg Gumbert, Jeff Walker, Virginia Wilson and Jason Yarbro.
