Appeals and Trials – The Law Offices of Wm. Frank Carroll

Indicative of Mr. Carroll’s extensive range of trial and appellate experience are the more than 100 of his cases which have been reported. Among those cases are the following:

Antitrust/Lender Liability/Fraud

Hunt v. Bankers Trust Co., 689 F. Supp. 666 (N.D. Tex. 1987)

Lead trial counsel for bank in suit by borrower to prevent enforcement of loan agreements and foreclosure on the ground that the bank’s actions violated the antitrust laws. The Court held that an antitrust violation is a defense to enforcement of a contract only if enforcement itself would amount to an antitrust violation.

Antitrust/Lender Liability/Preliminary Injunctions

Hunt v. Bankers Trust Co., 646 F. Supp. 59 (N.D. Tex.), aff’d, 799 F.2d 1060 (5th Cir. 1986)

Lead trial and appellate counsel for bank in an appeal from orders enjoying parties to pre-bankruptcy litigation from filing any suit – including a bankruptcy – other than in the forum court. The debtors, in violation of the orders, filed bankruptcy in another state and were ordered to transfer the case to the forum court by the district court. The Court upheld the injunction finding that it did not deprive debtors of any constitutional right to select venue and that unsecured creditors have no right to dictate venue. The Court further held that it had the power by direct order to require the transfer of the case from Louisiana to Texas instead of remanding it to the district court.

Antitrust/Multidistrict Litigation

In Re Beef Indus. Antitrust Litig., 419 F. Supp. 720 (J.P.M.L. 1976)

Trial counsel for defendant in having eight private price fixing class actions consolidated in a single forum where the Panel rejected the argument that, because the transferee Court might be more favorable to the defendants’ arguments, was not a factor relevant to determining transfer.

Antitrust/Multidistrict Litigation

In Re Corn Derivatives Antitrust Litig., 486 F. Supp. 929 (J.P.M.L. 1980)

Lead trial counsel for defendant in having twenty-five private price fixing class actions consolidated in a single forum other than the forum where the government’s grand jury proceedings were held.

Antitrust/Obstruction of Justice/Government Misconduct

United States v. Treadway, 445 F. Supp. 959 (N.D. Tex. 1978)

Lead trial counsel for defendant indicted for obstruction of justice in connection with a price fixing investigation. The government attorney presenting the case to the grand jury also testified before the grand jury as to the nature of documents allegedly destroyed. In a case of first impression the Court held that once a witness, including a prosecutor, testified before the grand jury he was an unauthorized person in the grand jury room. The Court also quashed the indictment on the ground that there was a violation of the Disciplinary Rules which were intended to insure a fairly administered judicial system.

Antitrust/Price Fixing

In Re: Online Travel Co. (OTC) Hotel Booking Antitrust Litigation, 997 F.Supp.2d 526, 2014 WL626555 (N.D. Tex. 2014) [Antitrust].

Trial counsel for national hotel chain in putative class action suit by consumers claiming that hotels and online booking agents conspired to inflate price of hotel rooms booked online. The Court dismissed the claims finding that the allegations of the complaint were insufficient to state a claim for conspiracy since the claims were equally consistent with lawful as with unlawful conduct. The Court further found that inter-firm communications, price competition preceding the alleged conspiracy, and the defendants’ market power did not constitute sufficient “factual enhancements” to move the allegations from neutral to illegal activities.

Antitrust/Price Fixing

In Re Beef Indus. Antitrust Litig., 1977-2 Trade Cases 61,794 (N.D. Tex. 1977), rev’d, 600 F.2d 1148 (5th Cir. 1979)

Trial counsel for defendant in consolidated class actions alleging price fixing claims in the purchase of beef by retail grocery chains.

Antitrust/Recusal of Federal Judge

In Re Placid Oil Co., 802 F.2d 783 (5th Cir. 1986)

Lead trial and appellate counsel for bank in an antitrust action in which the plaintiffs’ sought to recuse the trial judge on the ground that he had a large financial investment in a non-party bank. In rejecting recusal on the ground that any decision could adversely affect the entire banking, the Court held that a showing that a judge who owns stock in a company in the same industry as one of the parties establishes only an indirect, speculative financial interest which is insufficient for disqualification.

Attorneys’ Fees/Against United States/Hyde Amendment

Claro v. United States, 579 F.3d 452 (5th Cir. 2009)

Lead appellate counsel for claimant in suit against the United States to recover attorneys’ fees under the Hyde Amendment incurred in defense of a criminal prosecution which was determined to have been improper and wrongful. In a case of first impression the Court held that attorneys’ fees could be recovered in connection with prosecuting the Hyde amendment claim and that such fees could be based upon a contingency fee agreement.

Bankruptcy/Plan Confirmation Standards

In re MCorp Fin., Inc., 160 B.R. 941 (S.D. Tex. 1993)

Lead trial counsel for the receiver of the failed MBank banking system in confirming a plan of liquidation for the bank holding company involving assets and claims in excess of $800 million. The Court, in a detailed evaluation of federal banking and bankruptcy law, favorably determined valuation, contingency, liability and various other issues in favor of the receiver.

ERISA/Breach of Contract and Fiduciary Duty/Fraud

Lewis v. Bank of America, N.A., 2002 WL 493083 (N.D. Tex. March 29, 2002), rev’d, 343 F.3d. 540 (5th. Cir.), reh. denied 347 F.3d 587 (per curiam) (2003), cert. denied, 540 U.S. 1213 (2004)

Lead trial and appellate counsel for bank in a suit to determine whether bank failed to comply with an alleged oral promise to maintain retirement funds in a tax exempt status. The bank contended that since the plaintiff intended to pledge the accounts to secure his company’s loan from the bank, the tax result would have been the same whether the funds were pledged from an exempt or non-exempt account. The court held that since the result would have been the same in either instance – the loss of tax exempt status – there was no causation of damages by the bank.

Evidence/Punitive Damages

Brock v. Jackie Fine Arts, Inc., 1986 U.S. Dist. Lexis 16265 (D. Kan. December 18, 1986)

Lead trial counsel for plaintiff in a suit to recover damages in connection with the right to reproduce images of a Picasso painting. Defendants filed a motion for judgment notwithstanding the verdict or for a new trial. The court denied the motions relating to various evidentiary rulings and held that punitive damages were supported by the evidence.

Federal Procedure/Closing Argument/New Trial

Wallner v. Farish, 2011 WL 1085307 (N.D. Tex. March 23, 2011), aff’d, 470 Fed. Appx. 230, 2012 WL 752470 (5th Cir. March 8, 2012)

Lead trial counsel for purchaser of securities in connection with the development of a residential real estate development in which jury returned a verdict of $1.8 million finding fraud. The Court held that out of pocket expenses were an appropriate measure of damages for fraud and that because the misrepresentations were intentional, exemplary damages were appropriate.

Federal Procedure/Personal Jurisdiction//Minimum Contacts/Criminal Subpoena Compliance as Contact

Claro v. Mason, No. H-06-2398 2007 WL 654609 (S.D. Tex. February 27, 2007)

Lead trial counsel for plaintiff in suit involving question of whether compliance with a criminal subpoena could be considered as a contact with the forum for jurisdictional purposes.

Federal Procedure/Removal/Definition of Party to Suit

FDIC v. Loyd, 744 F. Supp. 126 (N.D. Tex. 1990), rev’d, 955 F.2d 316 (5th Cir. 1992)

Lead trial and appellate counsel for the receiver of a failed bank and the successor bank in a suit to recover damages for breach of fiduciary duty and conversion. The case involved a number of complex federal procedural and jurisdiction issues, but was a case of first impression in holding that in order for the time for removal to commence the person entitled to remove must be a “party” to the suit.

Federal Procedure/Sanctions

Ty, Inc. v. Laux Designs, Inc., 2002 U.S. District Lexis 540 (N.D. Tex. July 10, 2002)

Trial counsel for judgment debtor in post judgment discovery proceedings. Court imposed sanctions on debtor for failing to produce records which had been ordered to be produced but were only produced minutes before the hearing on motion for contempt.

Federal Procedure/Standards for MDL Transfer

In Re Cessna 208 Series Aircraft Prod. Liab. Lit., 560 F.Supp. 2d 1380 (MDL 2008)

Trial counsel for aircraft manufacture in lawsuit for wrongful death. MDL Panel held that actions should be transferred to one forum for pretrial consolidation since all cases involved common factual questions concerning the testing, design and manufacture of the aircraft.

Financial Institutions/Class Action/Civil Rights

Ramsey v. Neindorff, 177 F.3d 977 (5th Cir. 1999) (Loc. Rule 34.2)

Lead trial and appellate counsel for wholly owned mortgage lending subsidiary of national bank in suit alleging improper charge of filing, facsimile and other alleged “junk fees”.

Financial Institutions/Conditions for Presentment of Claim on Letter of Credit

Squyres v. FDIC, CIV. A. 3-90-2463-H, 1992 WL 167487 (N.D. Tex. April 16, 1992)

Lead trial counsel for receiver of a failed bank in a suit by the beneficiary of letter of credit issued by the failed bank. The Court held that strict compliance with the terms of the letter of credit, including timing and location of presentment, was required. Presentment on a successor bank was held to be insufficient once notice was issued as to the terms of insolvency.

Financial Institutions/Consumer Class Action/Truth in Lending

George v. Beneficial Fin. Co., 81 F.R.D. 4 (N.D. Tex. 1978)

Lead trial counsel for loan company in a consumer class action suit under the Truth in Lending Act for failure to furnish a complete disclosure statement. In denying class certification the Court found that counterclaims for deficiencies on the loans were compulsory and that such claims made the class unmanageable.

Financial Institutions/Consumer Fraud/DTPA Class Action

Peltier Ent., Inc. v. Hilton, 51 S.W.3rd 616, (Tex. App.-Tyler 2000, pet. denied)

Lead trial and appellate counsel for bank in consumer class action suit alleging that the failure to disclosure the difference between a car dealer’s interest rate charge and the rate at which the bank bought the contract constituted fraud and a violation of the DTPA. After trial of the individual plaintiffs’ claims to a jury and obtaining a favorable verdict, the trial court nevertheless certified a class. The Court of Appeals ordered the class decertified finding that common questions did not predominate because the materiality of the misrepresentation and each plaintiff’s reliance required individualized proof.

Financial Institutions/Defenses to Guaranty and Personal Liability of Bank Officers

Whitehead v. FDIC, CIV. A. 3-89-0973-T, 1989 WL 505936, (N.D. Tex. Sept. 13, 1989)

Lead trial counsel for receiver of failed bank and successor bank in suit asserting that the plaintiff was fraudulently induced to pledge a certificate of deposit and provide a guaranty on a note and also asserting claims for breach of contract, tortious interference, breach of duty of good faith and prima facie tort. The Court held that individual officers of the failed bank were protected by federal law from claims based upon oral representations and that the failure of a bank and subsequent transfer of the guaranty did not release the guarantor on the note.

Financial Institutions/Duty of Good Faith and Fair Dealing on Loans/Prima Facie Tort, Motions in Limine, Lender Liability

Tatum v. NationsBank of Texas, N.A., No. 05-94-01998-CV, 1995 WL 437413 (Tex. App.–Dallas 1995, writ denied)

Lead trial and appellate counsel for bank in a jury trial by a borrower alleging that the bank wrongfully accelerated his indebtedness and called three letters of credits. The borrower asserted claims for fraud, breach of duty of good faith and fair dealing and prima facie tort. The jury returned a take nothing verdict, which was affirmed by the Court of Appeals, holding (1) that a borrower/lender relationship does not create a duty of good faith and fair dealing and (2) that a claim for prima facie tort is not recognized in Texas.

Financial Institutions/Failed Bank/D&O Liability

FDIC v. Dee, et al. ___F.Supp. 3d___, 2015 WL 100479 (D. N.M. March 3, 2015).

Lead trial counsel for former officers and directors of failed bank in a suit by FDIC to recover damages for negligence, gross negligence and breach of fiduciary duty. The court held that the FDIC was required to plead an injury in fact and a causal connection between the alleged acts of defendants and that injury in order to have Article III standing to bring suit.

Financial Institutions/Federal Preemption by Banking Laws/Powers of FDIC

NCNB Texas Nat’l Bank v. Cowden, 712 F. Supp. 1249 (W.D. Tex. 1989), aff’d, 895 F.2d 1488 (5th Cir. 1990)

Lead trial and appellate counsel for the Federal Deposit Insurance Corporation as insurer and receiver of the failed First Republic banking system in a suit to determine the validity of the transfer of 26,000 fiduciary relationships (including 17,000 trusts) valued in excess of $50 billion from the failed banks to the successor bank. The defendants argued that fiduciary relationships could only be transferred in accordance with the Texas Probate and Texas Trust Codes in separate state court proceedings. In a case of first impression the Court held that federal banking regulations and laws preempted Texas law with respect to the transfer of fiduciary relationships of a failed national bank.

Financial Institutions/Joint Tenancy with Right of Survivorship/Ownership of Funds in Deposit Account

Chopin v. InterFirst Bank Dallas, N.A., 694 S.W.2d 79 (Tex. App.–Dallas 1985, writ ref’d n.r.e.)

Lead trial and appellate counsel for the bank as independent executor to recover funds deposited in joint accounts with decedent’s sister-in-law as a signatory. In a case of first impression the Court held that there must be a written agreement specifically providing that the account is held as “joint tenants with right of survivorship” in order to transfer ownership of the funds to the surviving account party.

Financial Institutions/Lender Liability/Loan Participation Agreements

Royal Bank of Canada v. FDIC, 733 F. Supp. 1091 (N.D. Tex. 1990)

Lead trial counsel for the receiver of a failed bank in a suit involving a participation agreement alleging fraud, breach of contract and breach of fiduciary duty. The Court held that federal law protected the receiver from liability as to any oral agreements of the failed bank and that the receiver was immune from liability for punitive damages.

Financial Institutions/Lender Liability/Oral Agreements

Bell & Murphy and Assocs., Inc. v. InterFirst Bank Gateway, N.A., 894 F.2d 750 (5th Cir. 1990), cert. denied sub nom, Bell & Murphy & Assocs., Inc. v. FDIC, 498 U.S. 895 (1990)

Lead trial and appellate counsel for the receiver of a failed bank and the successor bank in suit in which borrower sought damages for fraud based upon the refusal of the failed bank to extend loans and honor overdrafts in exchange for surrendering its account receivable and funds from its pension and profit sharing plan to the bank. The Fifth Circuit held that undocumented agreements did not bind the receiver, and in a case of first impression, held that such claims could not be asserted against the bank acquiring the assets of the failed bank.

Financial Institutions/Lender Liability/Post Default Interest Rate

FDIC v. Patel, 46 F.3d 482 (5th Cir. 1995)

Lead trial and appellate counsel for the Federal Deposit Insurance Corporation and the successor bank in suit to recover on a $2.5 million promissory note. The Court held that the successor bank could not have ratified the failed bank’s obligations nor could any representations made by the failed bank give rise to an off-set on the note.

Financial Institutions/Lender Liability/Validity of Lien on Aircraft

Aero Support Sys., Inc. v. FDIC, 726 F. Supp. 651 (N.D. Tex. 1989)

Lead trial counsel for the receiver of a failed bank and the successor bank in suit in which an airplane repair company sought damages and foreclosure of their mechanic’s lien. The Court held that federal law preempted the perfection of lien claims on aircraft and that the receiver and successor bank were not bound by any oral agreement of the failed bank.

Financial Institutions/Preemption of Texas Trust Code/Powers of FDIC/Purchase and Assumption Agreements

First Nat’l Bank of Andrews v. FDIC, 707 F. Supp. 265 (W.D. Tex. 1988)

Lead trial counsel for the receiver of a failed state bank in connection with issues involving the validity of the transfer of trust assets from a failed state bank to a successor institution. The Court held, in a case of first impression, that the Texas Banking Code preempted the Texas Trust Code with respect to transfer of trust department assets by a failed state bank.

Financial Institutions/Standards for Injunctive Relief

Federal Home Loan Mortg. Corp v. American Home Mortg. Corp., 2007 W L 2228619 (N.D. Tex. 2007)

Trial counsel for Freddie Mac in suit for injunctive relief to obtain possession of mortgage loan and servicing files after termination of servicer. The court granted the injunctive relief holding that the defendant had no property interest in the files and no right to retain them upon termination.

Insurance/Duty to Defend

OneBeacon Ins. Co. v. Don’s Building Supply, Inc., 553 F.3d 901 (5th Cir. 2008)

Lead appellate counsel for insured. The Court held that property damage occurred when actual physical damage to the property occurred. The dates the physical damage was or could have been discovered are irrelevant. The duty to defend arises if any amount of tangible injury occurred during the policy period and it does not matter if the insured had a valid limitations defense.

International Law/Discovery

In Re Cessna 208 Series Aircraft Prod. Liab. Lit., 2008 U.S. Dist. Lexis 71864 (D. Kan. August 7, 2008)

Trial counsel for aircraft manufacture in suit for wrongful death. Plaintiff argued that no time limit should be set on responding to manufacturer’s interrogatories since information was in Russia. Court denied Plaintiff’s request and ordered Plaintiff’s to provide information within 60 days.

Labor/Arbitration/Binding Effect of Retirement Committee Decision

Mills v. Braniff Airways, Inc., 527 S.W.2d 838 (Tex. Civ. App.–Eastland 1975, no writ)

Lead trial and appellate counsel for an airline in a suit by a retired employee challenging the benefits he had been awarded by the Retirement Committee which was composed of equal numbers of management and union representatives. The Court treated the Committee decision as an arbitration award under the Railway Labor Act and held that there was no right to appeal the decision to a court.

Labor/Arbitration//Certification/Enforceability of Arbitration Award

General Warehousemen and Helpers v. Standard Brands, Inc., 560 F.2d 700 (5th Cir. 1977), rev’d en banc, 579 F.2d 1282 (5th Cir. 1978), cert. denied, 441 U.S. 957 (1979).

Trial and appellate counsel for employer in a suit to set aside an arbitration award granting super seniority to employees transferring from a plant which was eventually closed to a new plant. The union representation at the first plant was different from that at the new plant. The Court concluded that the award was not enforceable since it would have forced the employer to commit an unfair labor practice at the second plant in violation of the National Labor Relations Act (“NLRA”).

Patent Infringement/Motion to Amend, Undue Delay

De Moore v. International Paper Co., 1998 U.S. Dist. Lexis 12072 (N.D. Tex. July 30, 1998)

Trial counsel for defendant in patent infringement and false advertising action. Defendant filed a motion for summary judgment and plaintiffs filed a motion to amend on the last day permitted by the Scheduling Order. The court denied the motion to amend on grounds of prejudice to defendant who had previously moved for summary judgment and found that even though the motion was filed before the deadline, it constituted undue delay.

Patent Infringement/Motion to Transfer

Baxa Corp. v. Forhealth Technologies, Inc., 2006 WL 680503 (N.D. Tex. March 15, 2006)

Lead trial counsel for Defendant in patent infringement case filed in district where the “flagship installation” of the infringing product occurred. On Defendant’s motion the case was transferred to the Defendant’s home district because it was the “center of gravity of the accused activity.”

Patent Infringement/Stay of Case Pending Reexamination

Baxa Corp. v. Forhealth Technologies, Inc., 2006 U.S. District Lexis 28583 (M.D. Fla. May 2006)

Lead trial counsel for Defendant in patent infringement case. On Defendant’s Motion to Stay pending patent reexamination the Court held stay was appropriate since the case was in early stages of litigation and reexamination would significantly impact the issues to be litigated.

Real Estate/Amendment of Homeowner Declarations by Developer

Raman Chandler Properties, L.C. v. Caldwell Creek Homeowners Assoc., Inc., 178 S.W.3d 384 (Tex. App.-Fort Worth, 2005, pet. denied)

Lead appellate counsel for homeowners association in a suit against the developer who had purported to grant an easement to his new development to use the association’s common areas. The court invalidated the easement on the grounds that the developer had lost the power to change the association’s declarations and that the developer was estopped to take such action because lot owners bought in reliance upon representations that they would have exclusive use and enjoyment of the common areas.

Real Estate/Summary Judgment Standards/Title Defects

ART Midwest v. Clapper, 2002 WL 441256 (N.D. Tex. Mar. 20, 2002) rev’d, 242 Fed. Appx. 13D, 2007 WL 1721685 (5th Cir. 2007)

Trial counsel for seller of real property in jury trial involving breach by buyer who alleged that seller did not have marketable title. Court of Appeals held that marketability of title is not affected by zoning limitations.

Real Estate/Warehousing Agreement

APL Logistics Americas, Ltd. v. TTE Tech., Inc., 549 Fed.Appx.247, 2013 W.L. 6510907 (5th Cir. 2013) [Warehousing Agreement].

Trial and appellate counsel for lessee in appeal obtaining reversal of adverse $1.6 million damage award for breach of a warehousing agreement. The lessor argued that the phrase “will no longer have any obligations” did not release all obligations under the warehousing agreement. Contrary to the District Court, the Fifth Circuit concluded that the word “any” has no limitation and that upon payment of the fee all obligations under the warehousing agreement were released.

Securities/Class Action/Trust Indenture Act

Broad v. Rockwell Int’l Corp., 1977 Fed. Sec. L. Rprt. (CCH) 96,193 (N.D. Tex. 1977); 1977 Fed. Sec. L. Rprt. (CCH) 95,894 (N.D. Tex. 1977); 1976 Fed. Sec. L. Rptr. (CCH) 95,816 (N.D. Tex. 1976) rev’d, 614 F.2d 418 (5th Cir. 1980), rev’d en banc, 642 F.2d 929 (5th Cir. 1981)

Lead trial and appellate counsel in a jury trial and on appeal for the indenture trustee in a class action by debenture holders alleging securities fraud violations and other claims in connection with the treatment received by the plaintiffs in a merger. The Court held that the implied covenant of good faith and fair dealing could not give debenture holders rights inconsistent with the terms of the indenture and that exercising its contractual rights did not violate such implied covenant.

Taxation/Airline Leasehold

Irving Indep. Sch. Dist. v. Delta Air Lines, Inc., 534 S.W.2d 365 (Tex. Civ. App.–Texarkana 1976, writ ref’d n.r.e.)

Lead trial and appellate counsel for an airline in challenging the taxation of its leasehold interest in real property owned by the cities of Dallas and Fort Worth at DFW Airport. The Court held that leasehold interests are taxable only if made so by statute and that the Legislature could elect not to tax leasehold interests used in connection with public transportation facilities.

Telecommunications Act/Predatory Pricing/Federal Jurisdiction

Budget Prepay, Inc. v. AT&T Corporation, 605 F.3d 273 (5th Cir. 2010)

Lead trial counsel for a premier communications company and its telecommunications subsidiaries in a dispute alleging predatory pricing of wholesale services to resellers pursuant to an interconnect agreement. Resellers, rather than challenging the pricing in the 18 affected state public utility commissions, filed in federal court to enjoin the new pricing methodology. The District Court granted the injunction holding that it had federal question jurisdiction to do so because the enforcement of an interconnect agreement required the interpretation and enforcement of federal law. Although acknowledging that some interpretation of federal law would be necessary, the Fifth Circuit Court of Appeals held that the federal rights involved were not “substantial” – that is interpretation of the federal law was “relevant to, but not dispositive of” the claim. The Court of Appeals reversed the injunction and held that the District Court lacked jurisdiction of the claims.

Texas Procedure/Appealability of TRO Enjoining Shareholder Meeting

Global Natural Resources v. Bear, Stearns & Co., 642 S.W.2d 852 (Tex. Civ. App.–Dallas 1982, no writ)

Lead trial and appellate counsel for management of a foreign corporation in a suit by disgruntled shareholders attempting to oust them. Late on a Thursday afternoon the dissidents obtained on ex parte TRO enjoining a meeting of shareholders and the consumption of a merger scheduled for Monday on the Isle of Jersey. We moved Friday morning to dissolve the TRO and at 4:00 p.m. the trial judge advised the parties that he had been busy with other matters and would be unable to rule. Having anticipated such action, we had arranged for a panel of the Court of Appeals to be available for an emergency review. After 5:00 p.m. on Friday the Court held an emergency hearing and reversed the TRO holding that it had jurisdiction because the TRO was “tantamount to a temporary injunction” and that it was improper because it granted “temporary injunctive relief” without notice and hearing.

Texas Procedure/Validity of Rule 11 Agreement

Sadler v. Bank of America, 2004 WL 1392325 (Tex. App.—San Antonio, June 23, 2004, no pet.)

Lead trial and appellate counsel for bank in a suit to recover damages for breach of a settlement agreement in a prior lawsuit which was never signed by all parties. The plaintiff asserted that since the settlement agreement was prepared by the defendant, it was binding even if it was unsigned. The court held that there was no evidence that the bank signed or promised to sign an agreement which complied with Rule 11 Tex. R. Civ. P.

Trademark Infringement/Res Judicata

Hawkins Pro-Cuts v. DJT Hair, 1997 U.S. Dist. Lexis 22418 (N.D. Tex. July 25, 1997).

Lead trial counsel for franchisor in suit against terminated franchisee for trademark infringement under the Lanham Act, unfair competition and breach of contract. Court held franchisee’s claims relating to wrongful termination were barred by doctrine of res judicata, trademark was infringed, continued use by franchisee was likely to cause confusion and permanent injunction was appropriate to prevent irreparable harm.

UCC/Breach of Commercial Contract/Principal and Agent

Three Seventy Leasing Corp. v. Ampex Corp., 528 F.2d 993 (5th Cir. 1976)

Trial and appellate counsel for seller of computer core memory in suit for breach of contract. After trial, judgment was entered against the buyer for failure to establish damages. The buyer sought to recover lost profits as compensatory damages despite a provision in the agreement which precluded compensatory damages. The Court held that lost profits were a form of compensatory damages and were not recoverable, and since no legally recoverable measure of damages was proven, only an award of nominal damages would be permitted.

OTHER TRIAL AND APPELLATE MATTERS

Federal

ART Midwest, Inc. v. Clapper, 2002 WL 441256 (N.D. Tex. Mar. 20, 2002) rev’d, 2007 WL 1721685 (5th Cir. 2007) [Summary Judgment Standards; Title Defects]

ART Midwest, Inc. v. Clapper, 2003 WL 22840021 (N.D. Tex. Oct. 24, 2002), aff’d, 2002 WL 32304102 (N.D. Tex. Nov. 12, 2002) [Motion to Remand, Indispensable Party, Sanctions]

Bank One, Texas v. Graff, 963 F.2d 371 (5th Cir. 1992) (Table), cert. denied, 506 U.S. 1048 (1993) [Banking]

Belmarel v. Craig’s Pro-Cuts, Inc., 1998 U.S. Dist. Lexis 19845 (N.D. Tex. November 25, 1998) [Motion for Summary Judgment, ADA]

Claro v. Mason, No. H-06-2398 2007 WL 654609 (S.D. Tex. February 27, 2007) [Personal Jurisdiction]

Cervin v. Northcrest Fin., Inc., (N.D. Tex. August 5, 2002) [Wrongful Foreclosure]

Farr v. FDIC, 904 F.2d 703 (5th Cir. 1990) (Loc. Rule 34.2), cert. denied, 498 U.S. 1119 (1991) [Banking]

FDIC v. Ambika Inv. Co., 42 F.3d 64 (5th Cir. 1994) (Loc. Rule 34.2) [Financial Institutions/Lender Liability/Interest Rates]

FDIC v. Sellards, 731 F. Supp. 1300 (N.D. Tex. 1990) [Removal of State Appellate case to Federal Court]

First RepublicBank Fort Worth, N.A. v. Norglass, Inc., 751 F. Supp. 1224 (N.D. Tex. 1991), aff’d in part, vacated in part, 958 F.2d 117 (5th Cir. 1992). [Lender Liability]

George v. LeBlanc, 78 F.R.D. 281 (N.D. Tex.), aff’d, 565 F.2d 1213 (5th Cir. 1977) [Securities Fraud]

Goldberg v. CPC Int’l, Inc., 495 F. Supp. 233 (N.D. Cal. 1980) [Antitrust]

GTE Card Services v. AT&T, 1997 WL 74712 (N.D. Tex.), aff’d, 124 F.3d 191 (5th Cir. 1997) (Loc. Rule 34.2) [Deceptive Advertising]

In Re American Principals Holdings, Inc. Securities Litigation, 1987 U.S. Dist. Lexis 16944 and 16945 (S.D. Cal. July 9, 1987) [Motion to Dismiss, Securities Act of 1933, Securities Exchange Act of 1934, RICO]

In Re Beef Indus. Antitrust Litig., 1977-2 Trade Cases 61,794 (N.D. Tex. 1977), rev’d, 600 F.2d 1148 (5th Cir. 1979) [Antitrust/Price fixing]

Keller v. Braniff Int’l Airlines, 481 F.2d 1401 (5th Cir. 1973) (Sum. Cal., Loc. Rules 18,21) [Employment]

Mabary v. Hometown Bank, 2013 WL 1124026 (S.D. Tex. 2013) rev. in part, vacated in part, 771 F.3d 820 (5^th Cir. 2014) [Class Action, Electronic Funds Transfer Act]

Mabary v. Hometown Bank, 276 F.R.D. 196 (S.D. Tex. 2011) [Electronic Funds Transfer Act]

Mabary v. Hometown Bank, 2011 WL 5864325 (S.D. Tex. November 22, 2011) [Electronic Funds Transfer Act]

Mabary v. Hometown Bank, 888 F. Supp. 2d 857 (S.D. Tex. August 30, 2012) [Electronic Funds Transfer Act]

McGovern v. American Airlines, Inc., 511 F.2d 653 (5th Cir.), reh. den., 514 F.2d 1072 (5th Cir. 1975) [Venue]

Metallurgical Indus., Inc. v. Fourtek, Inc., 762 F.2d 1002 (5th Cir. 1985), 771 F.2d 915 (5th Cir. 1985), 790 F.2d 1195 5th Cir. 1986) [Business Torts/Misappropriation of Trade Secrets]

Monesson v. Safeway Stores, Inc., 480 F.2d 923 (5th Cir. 1973) (Sum. Cal., Loc. Rules 18,21) [Breach of Contract]

Pony Creek Cattle Co., Inc. v. The Great Atl. and Pac. Tea Co., 1975-2 Trade Cases 60,660 (N.D. Tex. 1975) [Antitrust/Indirect Purchaser Doctrine]

Riverside-Airport Freeway, J.V. v. FDIC, 920 F.2d 930 (5th Cir. 1990) (Loc. Rule 34.2) [Banking]

Sibarium v. NCNB Texas Nat’l Bank, 107 B.R. 108 (N.D. Tex. 1989) [Mandatory and Permissive Withdrawal of Reference]

Southwest Airlines Co. v. Texas Int’l Airlines, Inc., 396 F. Supp. 678 (N.D. Tex. 1975), aff’d, 546 F.2d 84 (5th Cir. 1977) [Virtual Representation/Federal Aviation Act]

United States v. Amwest Sav. Ass’n., 999 F. Supp. 852 (N.D. Tex. 1997) [Qui Tam Action/ Federal False Claims Act]

United States v. International Paper Co., 457 F. Supp. 571 (S.D. Tex. 1978) [Antitrust/Grand Jury Issues]

VRV Devel., LLP v. Mid-Continent Cas. Co., 2010 U.S. Dist. Lexis 8982 (N.D. Tex. Feb. 3, 2010), aff’d., 630 F.3d 451 (5th Cir. 2011) [Duty to Defend]

State

All American Telephone, Inc. v. USLD Communications, Inc., 291 S.W.3d 518 (Tex.App.–Fort Worth 2009, pet. denied) [Defamation/Malicious Prosecution]

Cavalry Investments, L.L.C. v. Sunstar Acceptance Corp., No. 05-00-00508-CV, 2001 WL 371545 (Tex. App.–Dallas 2001, pet. denied) [Letter of Intent as Contract]

GTE Communication Sys. Corp. v. Telecom Communications, Inc., No. 05-96-00430-CV, 1998 WL 548763 (Tex. App.–Dallas 1998, pet. denied) [Defenses to Breach of Contract/Daubert Exclusion, Lawyer and Juror Misconduct]

Jagob Square 67 Joint Venture v. Beal Mortgage, Inc., No. 05-97-02053-CV, 1999 WL 1068728 (Tex. App.–Dallas 1999, no pet.) [Lender Liability]

McGovern v. American Airlines, Inc., 537 S.W.2d 341 (Tex. Civ. App.–Beaumont 1976, writ ref’d n.r.e.) [Illegal Campaign Contributions]

NationsCredit Corporation v. CSSI, The Support Group, Inc., NO. 05-97-02053 WL 1068728 (Tex. App.–Dallas 2001, no pet.) [Covenant Not to Compete and Proof Standards on Attorneys’ Fees]

Rodebaugh v. Beachum, 576 S.W.2d 143 (Tex. Civ. App.–Waco 1979, no writ) [Discovery Sanctions]

EXPERIENCE – SELECTED CLASS ACTIONS:

In addition to his trial and appellate experience above, Mr. Carroll has devoted a significant amount of time to litigating class action matters. The following is a sample of those cases arising in a number of different contracts and industries.

Class Action/Antitrust

Goldberg v. CPC Int’l, Inc., 495 F. Supp. 233 (N.D. Cal. 1980)

Lead trial counsel for defendant in twenty-five class actions pending in seven states asserting price fixing claims in the sale of high fructose corn syrup and other products.

Class Action/Antitrust/Multidistrict Litigation

In Re Beef Indus. Antitrust Litig., 419 F. Supp. 720 (J.P.M.L. 1976)

Class Action/Antitrust/Multidistrict Litigation

In Re Corn Derivatives Antitrust Litig., 486 F. Supp. 929 (J.P.M.L. 1980)

Class Action/Antitrust/Price Fixing

In Re Beef Indus. Antitrust Litig., 1977-2 Trade Cases 61,794 (N.D. Tex. 1977), rev’d, 600 F.2d 1148 (5th Cir. 1979)

Trial and appellate counsel for defendant in consolidated class actions alleging price fixing claims in the purchase of beef by retail grocery chains.

Class Action/Breach of Fiduciary Duty

Trial counsel for airline in shareholders’ derivate suit for breach of fiduciary and making improper political contributions. Settled prior to determination that it could proceed as a shareholder derivative action.

Class Action/Breach of Warranty

Trial counsel for software manufacturer in suit alleging that software was defectively designed and/or breach of contract for failure to anticipate and correct Y2K problems. Settlement without class being certified.