Andrew S. Hanen

This case concerns cross-appeals from a bankruptcy court's ruling on post-confirmation fee requests by Barclays Capital Inc. (BarCap), which had served as financial advisor to ASARCO LLC in its Chapter 11 reorganization after acquiring assets from Lehman Brothers. The bankruptcy court awarded BarCap $975,000 for unanticipated services performed by Lehman but denied an additional $8 million in discretionary fees. On appeal, the district court examined the original engagement letters under 11 U.S.C. §§ 328(a) and 330, assessed whether the terms were improvident due to changed circumstances, and evaluated the reasonableness of the services and requested enhancements against the statutory factors. The court consolidated the appeals and analyzed the scope of approved services, the effect of supplemental unapproved agreements, and the standards for fee adjustments.

business & regulatoryprocedure

This case arose from a traffic stop on Highway 77 in Texas after a state trooper observed a Ford Expedition with Mexican license plates lacking a visible registration sticker. The trooper questioned the driver, Jose Homero Guerrero, in Spanish about his travel plans, became suspicious due to nervousness and inconsistencies in his story, and obtained Guerrero's consent to search the vehicle, which led to the discovery of evidence. Guerrero moved to suppress the evidence, contending that consent was not properly given or was involuntary. The court denied the motion, ruling that the recorded dialogue clearly established that the trooper requested and received permission to search. The court alternatively found that the trooper acted in good faith in believing consent had been given and that the consent was voluntary under the totality of the circumstances.

criminal lawprocedure

This case concerns whether National Union Fire Insurance had a duty to defend or indemnify Puget Plastics under an umbrella policy for a state-court judgment obtained by Microtherm for economic losses from defective plastic water chambers that leaked and damaged water heaters. After a bench trial, the court previously held there was no coverage because the insured's conduct did not qualify as an "occurrence" (defined as an accident neither expected nor intended from the insured's standpoint). In this opinion, the court denies the post-trial motion for a new trial or to alter the judgment under Federal Rules of Civil Procedure 59(a) and 59(e), finding no prejudicial error, manifest mistake of law or fact, or newly discovered evidence. The core reasoning is that the manufacturing process involved intentional under-heating of the plastic, which Texas law and Fifth Circuit precedent treat as non-accidental, and the damages at issue (including lost profits) were not covered property damage from an occurrence.

business & regulatorytorts & liability

The case involved a defendant charged with drug trafficking who moved to dismiss the charges on speedy trial grounds; before the court ruled on that motion, he pleaded guilty pursuant to a plea agreement waiving appeal. Although the plea rendered the underlying criminal matter moot, the court used the order to address testimony from the hearing revealing a 2009 USCIS policy directing that replacement Permanent Resident Cards be issued to Legal Permanent Residents wanted for serious crimes, including "egregious public safety" cases, without notifying ICE or other law enforcement until after adjudication. The court explained that this "no tell" policy allowed the defendant to obtain a card using false information and evade capture until a chance encounter with officers, and it concluded that the policy was not required by law and hindered law enforcement by giving wanted individuals advance notice and documentation to avoid arrest. The court urged that the policy be amended or abandoned to permit simultaneous or prior notification to authorities.

immigrationcriminal law

This case involves Texas corporations and their owner challenging NOAA administrative actions, including Notices of Violation and Assessment (NOVAs) for violations of the Magnuson-Stevens Act and Endangered Species Act related to shrimp trawling without required devices or permits, as well as resulting permit sanctions. Several claims were previously dismissed as time-barred. On cross-motions for summary judgment, the court granted partial relief to each side, reversing the agency's denial of hearings to non-violating corporate plaintiffs regarding permit sanctions tied to other entities' unpaid penalties, vacating those sanctions, and remanding for further proceedings, while upholding the agency's findings and penalties on the remaining claims as supported by the record and rationally related to the violations.

business & regulatoryenvironmentfederal powerprocedure

This case involves former Chapter 13 debtors who sued mortgage lender Countrywide Home Loans after the company allegedly sought to collect undisclosed post-petition fees and expenses following their bankruptcy discharges, without court approval, and threatened or pursued foreclosure on their homes. The plaintiffs filed an adversary proceeding in bankruptcy court claiming violations of the Bankruptcy Code, rules, and their confirmed plans, along with improper accounting and unreasonable charges, and sought class certification. Countrywide moved to withdraw the reference to district court, but the court denied the motion, adopting the bankruptcy court's recommendation that the claims involve core proceedings under 28 U.S.C. § 157(b)(2) that should remain in bankruptcy court despite an existing split among courts on disclosure requirements for such fees.

procedureproperty

This case concerns the confirmation of a plan of reorganization in the Chapter 11 bankruptcy of ASARCO LLC and its affiliates, pitting the debtors' proposed plan against a competing plan submitted by the parent company. The district court, acting on the bankruptcy court's report and recommendation, confirmed the parent's plan and entered related injunctions and orders under Bankruptcy Code provisions including § 524(g) and § 1129(c). The core reasoning was that the parent's plan was confirmable, offered equivalent or greater value, and prevailed under the § 1129(c) factors of plan type, creditor treatment, feasibility, and stakeholder preferences, while objections concerning labor agreements, special successorship clauses, environmental trusts, and governmental claims did not bar confirmation.

business & regulatorylabor & employmentenvironment

This case involves an insurance coverage dispute in which National Union sought a declaratory judgment that it had no duty to defend or indemnify its insureds, Puget Plastics and Arctic Slope, under a commercial umbrella policy for a multimillion-dollar Texas state court judgment against Puget arising from claims of defective molding of plastic water heater chambers, breach of warranty, negligence, fraud, and DTPA violations. The court held that National Union owed no coverage, ruling that the underlying damages did not constitute an "occurrence" under the policy because they were a highly probable result of Puget's deliberate actions (judged objectively) and that the insureds failed to meet their burden of allocating the judgment between covered property damage and uncovered losses. The core reasoning focused on policy interpretation of the occurrence definition, the objective nature of the "highly probable" prong, and the allocation requirement, with a contingent alternative finding that coverage would exist if those holdings were reversed on appeal.

business & regulatorytorts & liability

This case involved multiple corporate plaintiffs owned by Jorge Gonzalez challenging four NOAA administrative actions that imposed civil penalties and permit sanctions for alleged violations of the Magnuson-Stevens Act and Endangered Species Act in the Gulf shrimp fishery, including by-catch device failures and fishing without required permits. The court granted the defendant's motion to dismiss in part, dismissing claims arising from two 2002 and 2004 NOVAs because the plaintiffs failed to seek judicial review within the 30-day statutory deadline under 16 U.S.C. § 1858(b). It denied dismissal for claims from two later NOVAs, finding those challenges timely filed and the substantive issues insufficiently developed for resolution on a motion to dismiss. The core reasoning centered on the distinct nature of each penalty assessment, the strict timeliness requirement for review, and the principle that failure to challenge one enforcement action does not bar review of separate later applications of the same regulations.

business & regulatoryenvironmentprocedure

The case concerns a motion by Americas Mining Corporation (AMC) to stay execution of a prior district court judgment that had awarded ASARCO LLC the return of 260 million shares of Southern Copper Corporation stock plus over $1.38 billion in damages and interest, pending AMC's appeal to the Fifth Circuit. The court partially granted and partially denied the stay under Federal Rule of Civil Procedure 62, treating the stock return as an "order to do" under subsection (c) and the monetary award under subsection (d). It found that the balance of equities heavily favored AMC on the stock portion due to risks of irreparable harm such as adverse tax consequences, and therefore stayed execution of that part on the condition that the shares be deposited in escrow with a neutral party. For the monetary portion, the court required AMC to provide security through existing assets or a supersedeas bond, with deadlines tied to ASARCO's ongoing bankruptcy proceedings. The decision rested on the four-factor test for stays pending appeal, including likelihood of success on the merits, irreparable injury, harm to other parties, and the public interest.

business & regulatoryprocedure

The case centered on ASARCO LLC and Southern Peru Holdings, LLC, as debtors in bankruptcy, seeking to recover from Americas Mining Corporation the shares representing 54.18% ownership in Southern Peru Copper Company that ASARCO transferred to AMC in March 2003, plus associated damages. Following a four-week bench trial, the court had already ruled that AMC was liable for actual fraudulent transfer, aiding and abetting a breach of fiduciary duty, and conspiracy, based on the circumstances of the inter-company sale amid ASARCO's financial distress and creditor pressures. In this opinion addressing remedies, the court ordered equitable relief including the return of the stock's value through structured payments with prejudgment interest calculated from the suit's filing date, while resolving related motions on suspension of judgment and collateral issues under applicable state and federal law.

business & regulatoryproceduretorts & liability

This case involves the sentencing of defendant Edgar Heberto Lopez after he pleaded guilty to drug trafficking conspiracy and possession counts involving over 100 kilograms of marijuana and cocaine, using a firearm during a drug crime, and failure to appear in court. The court addressed multiple objections to the Presentence Investigation Report, including claims that certain information violated a proffer agreement under Sentencing Guidelines §1B1.8, that some incidents were not part of the charged conspiracy due to scant involvement or lack of agreement with a government informant, and challenges to the firearm conviction and consecutive sentencing. The court granted the objections related to the proffer agreement and the non-existence of a cocaine conspiracy but denied the rest, finding sufficient evidence for relevant conduct calculations exceeding 100 kilograms of marijuana and upholding consecutive sentencing under 18 U.S.C. §924(c) since no greater mandatory minimum applied to the drug counts. Core reasoning relied on statutory thresholds, guidelines provisions excluding only pre-agreement information, and Fifth Circuit precedents on conspiracy and attempt offenses even without actual drugs.

criminal law

The case involved the parents of Jacob Roth suing four defense contractors in Texas state court under negligence and gross negligence theories after Roth fell to his death from a semi-submersible drilling platform (SBX-1) being modified for the U.S. Missile Defense Program while moored in navigable Texas waters. Defendants removed the action to federal court, claiming exclusive jurisdiction under the Public Vessels Act and Suits in Admiralty Act. Plaintiffs moved to remand, arguing the claims were ordinary state-law torts not arising in admiralty because the work was non-maritime and the platform was under construction. The court examined whether the suit could have been filed originally in federal court and whether removal was proper, focusing on the connection to navigable waters and the platform's vessel status to assess admiralty jurisdiction.

proceduretorts & liabilityfederal power

In this case, Texas residents Victorio and Aleyda Solis sued Wal-Mart Stores East, L.P. and an unidentified store manager in state court after Mr. Solis slipped and fell on a liquid substance in a Wal-Mart aisle, asserting negligence and premises liability claims. Wal-Mart removed the action to federal court on diversity grounds, arguing that the manager was improperly joined to defeat jurisdiction, and the plaintiffs later sought to amend their complaint to name department manager Rafael Orozco as a defendant, which would require remand. The court denied the motion to amend and the motion to remand, holding that the plaintiffs had no reasonable possibility of recovery against Orozco under Texas law. The court reasoned that recent Texas Supreme Court precedent extending Leitch v. Hornsby to premises liability claims precludes personal liability for employees acting within the scope of their duties, and that any potential duty recognized in earlier cases like Selph v. McLemore applied only to store managers with custody and control over an entire store, not to department managers like Orozco.

torts & liabilityprocedure

The case involved a contract dispute between Cardinal Health Solutions and Valley Baptist Medical Center regarding Pharmacy Agreements under which Cardinal Health managed the hospitals' pharmacy services, including purchasing and dispensing drugs. Valley Baptist asserted a counterclaim for breach of fiduciary duty, claiming the agreements created an agency relationship that imposed fiduciary obligations on Cardinal Health. The court granted summary judgment to Cardinal Health on this claim and denied Valley Baptist's motion, holding that the contracts did not create a formal fiduciary duty as a matter of law under Texas agency principles. The ruling relied on the undisputed contract terms showing no principal-agent relationship with the requisite control by Valley Baptist, treating the existence of fiduciary duty as a legal question.

business & regulatoryhealthcare

The United States brought eminent domain actions to acquire fee simple estates in private land under 40 U.S.C. § 3114 and 8 U.S.C. § 1103 to build fencing and related infrastructure along the U.S.-Mexico border. Landowners objected, arguing that recent amendments to 8 U.S.C. § 1103 note (Section 102(b)) restrict such takings to property "along the border," which they interpreted as land directly on or touching the border, and that their parcels did not meet this test. The court reviewed the statutory evolution from the 1996 IIRIRA through the 2005, 2006, and 2007 amendments, noting Congress's repeated use of broader phrases such as "in the vicinity of" or "in the border area" and its grant of expansive waiver authority to the Secretary of Homeland Security. It concluded that the phrase "along the border" does not impose a strict physical-adjacency requirement and that the Secretary retains discretion to select sites where fencing is most practical and effective.

immigrationfederal powerproperty

In this case, employees sued their former employer under the Fair Labor Standards Act alleging wage and hour violations arising from their employment at an orthopedic shoes business. The employer moved to compel arbitration based on arbitration provisions in the signed employment contracts. Applying the Fifth Circuit's two-step test, the court found valid agreements to arbitrate under Texas law that covered the FLSA claims, with no contrary federal statute or policy, and rejected or deferred objections concerning assent due to missing signatures, mutuality, unconscionability, and unmet conditions like prior mediation or timely filing. The court therefore granted the motion to compel, stayed the federal action, and directed the parties to proceed before an arbitrator.

labor & employmentprocedure

The case centered on ASARCO LLC and Southern Peru Holdings LLC, as bankruptcy debtors, suing Americas Mining Corporation to recover 54.18% of Southern Peru Copper Company stock transferred in 2003 or for related damages, along with claims for actual and constructive fraudulent transfer, breach of fiduciary duty by ASARCO's directors, aiding and abetting that breach, and conspiracy; the defendant raised counterclaims for breach of representations and warranties and various affirmative defenses. After a four-week bench trial, the court resolved pending summary judgment and Daubert motions in the context of the evidence, found that ASARCO's directors owed and breached fiduciary duties to the company and creditors by approving the undervalued transfer that left ASARCO cash-strapped, and concluded that AMC aided and abetted the breach with proximate causation of damages while rejecting some defenses such as waiver, ratification, or lack of unlawful acts for the conspiracy claim. The core reasoning relied on trial testimony, exhibits, and findings that the transaction was not at arm's length, deprived creditors of value, and met the elements for liability on the fiduciary and aiding-and-abetting counts, though AMC owed no independent duty.

business & regulatoryproceduretorts & liability

In Gonzalez v. United States, plaintiff Gerardo Gonzalez sued the United States under the Suits in Admiralty Act, asserting negligence and seaworthiness claims for injuries sustained while working aboard the government vessel SBX-1. The central issue was whether the Longshore and Harbor Workers' Compensation Act (LHWCA) or the Jones Act applied to the claims, as the two statutes are mutually exclusive. The court determined that the LHWCA governed because Gonzalez conceded its applicability by addressing only its vessel duties in his summary judgment response and the record otherwise did not support Jones Act seaman status. Accordingly, the court granted judgment for the government on the seaworthiness claim, which is unavailable under the LHWCA.

proceduretorts & liability

The case involved the United States filing a condemnation action to acquire a temporary easement on Dr. Tamez's property near the U.S.-Mexico border for surveying and planning related to border fencing mandated by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Dr. Tamez objected to the government's use of the Declaration of Taking Act for immediate possession, arguing that IIRIRA required only straight-condemnation procedures under the General Condemnation Act, prior negotiations with landowners, and compliance with a 2007 consultation provision before any taking. The court addressed these objections in ruling on the government's motion for possession, finding that the DTA procedure is available when condemnation authority is granted, that the statute requires a bona fide negotiation effort but allows flexibility in method rather than a rigid sequence, and that consultation requirements apply but do not necessarily bar the action. The core reasoning relied on the language of 8 U.S.C. § 1103(b), implicit congressional endorsement of expedited procedures in eminent domain grants, and case law permitting takings where good-faith efforts are shown.

immigrationpropertyprocedurefederal power