Texas GavelOur last four posts on the highest civil court in the Lone Star State went from Bloody Day at Texas Supreme Court (Mar. 28, 2014) to Do Plaintiffs Stand a Chance in the Supreme Court of Texas? (Apr. 25) to Do Plaintiffs Stand a Chance in the Supreme Court of Texas — Part 2 (May 30) to Do Plaintiffs Stand a Chance in the Texas Supreme Court — Part 3 (June 23).

The streak continues. In the three Fridays that followed our June 23 post — the Court usually issues opinions at the end of each business week — the Court has kept up its, er, consistency.

Behold, the Court:

  • Reinstated a grant of no-evidence summary judgment in favor of a defendant land owner whose employee chased a trespassing vehicle across the land at high speed, leading to a rollover and three fatalities. The Court reasoned that chasing the vehicle across unlit roads "d[id] not create [a] likelihood of serious injury to the defendants" absent evidence of "aggressive moves" on the part of the employee or the speed at which he was travelling. Boerjan v. Rodriguez, No. 12-0838 (Tex. June 27, 2014).
  • Ruled that a royalty owner was not entitled to a $10 million jury award for underpayment of royalties, finding that the costs of separating CO2 from casinghead gas may be assessed against the royalty interest as a postproduction expense, despite the parties previously classifying all oil separation activity as a production expense.  French v. Occidental Permian Ltd., No. 12-1002 (Tex. June 27, 2014).

  • Reversed a trial court order requiring a majority shareholder found to have engaged in oppressive conduct to buy-out the minority shareholder's interest for fair value. The Court ruled that a buy-out order is not an authorized remedy for oppressive conduct under the TBOC. Cardiac Perfusion Services, Inc. v. Hughes, No. 13-0014 (Tex. June 27, 2014).
  • Ruled that the imposition of a spoliation instruction against a defendant store owner who allowed video surveillance footage to be automatically erased was an abuse of discretion because the degree of resulting prejudice was not in accordance with the spoliating party's culpability. The Court reversed judgment for plaintiff and remanded for new trial. Brookshire Brothers, LTD v. Alridge, No. 10-0846 (Tex. July 3, 2014).
  • Denied a plaintiff's takings claim after the state claimed and fought for ownership of part of Plaintiff's land for two decades, reducing the value of the land and preventing her from finding a willing buyer. Although the court found that "the State's conduct is troubling," it held that no taking occurs until the assertion of ownership is coupled with taking physical possession. Porretto v. Texas General Land Office, No. 12-0483 (Tex. July 3, 2014).
  • Dismissed the claims of an asbestos plaintiff's estate because the claims failed to comply with the requirements of new legislation enacted post-injury that changed the procedural requirements for statutory wrongful death causes of action. To do so, the Court overruled a court of appeals ruling that the new requirements were unconstitutionally retroactive as applied to Plaintiff's claims.Union Carbide Corp. v. Synatzske, No. 12-0617 (July 3, 2014).
  • Overturned the denial of immunity to a government-entity defendant, dismissing a commercial tenant's breach of contract claim. Although entering into a contract for goods or services waives governmental immunity from claims by the contracting party, the Court reasoned that the lease was not such a contract despite a use restriction requiring plaintiff to operate a marina. Lubbock County Water Control v. Church & Akin, LLC, No. 12-1039 (Tex. July 3, 2014).
  • Affirmed dismissal of an asbestos plaintiff's claim against a manufacturer, finding that evidence of considerable exposure to defendant's products was, given evidence of additional exposure to other sources of asbestos, insufficient to establish causation in the absence of evidence quantifying the aggregate dose of asbestos attributable to defendant. Bostic v. Georgia-Pacific Corp., No. 10-0775 (Tex. July 11, 2014).
  • Vacated a $1.2 million jury verdict against a fuel system manufacturer for installing a faulty flex connector, resulting in massive fuel loss. The court ruled that a spoliation instruction issued against the defendant after it lost the flex connector in question was, absent evidence of intentional concealment, an abuse of discretion. Petroleum Solutions, Inc. v. Head, No. 11-0425 (Tex. July 11, 2014).

The slaughter has become extreme.

If you have a choice about where to file a case, you might give serious thought to going somewhere other than the state courts of Texas.

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Photo of Barry Barnett Barry Barnett

Clients and colleagues call Barry Barnett an “incredibly gifted lawyer” (Chambers and Partners) who is “magic in the courtroom” (Who’s Who Legal), “the top antitrust lawyer in Texas” (Chambers and Partners), and “a person of unquestioned integrity” (David J. Beck, founder of Beck…

Clients and colleagues call Barry Barnett an “incredibly gifted lawyer” (Chambers and Partners) who is “magic in the courtroom” (Who’s Who Legal), “the top antitrust lawyer in Texas” (Chambers and Partners), and “a person of unquestioned integrity” (David J. Beck, founder of Beck Redden).

Barnett is a Fellow in the American College of Trial Lawyers, and Lawdragon has named him one of the top 500 lawyers in the United States three years in a row. Best Lawyers in America has honored him as “Lawyer of the Year” for Bet-the-Company Litigation (2019 and 2017) and Patent Litigation (2020) in Houston. Based in Texas and New York, Barnett has tried complex business disputes across the United States.

Barnett’s background, training, and experience make him indispensable to his clients. The small-town son of a Texas roughneck and grandson of a Texas sharecropper, Barnett “developed an unusual common sense about people, their motivations, and their dilemmas,” according to former client Michael Lewis.

Barnett has been historically recognized for his effectiveness and judgment. His peers chose him, for example, to the American College of Trial Lawyers and American Law Institute. His decades of trial and appellate work representing both plaintiffs and defendants have made him a master strategist and nimble tactician in complex disputes.

Barnett focuses on enforcement of antitrust laws, the “Magna Carta of free enterprise,” in Supreme Court Justice Thurgood Marshall’s memorable phrase. “Barry is one of the nation’s outstanding antitrust lawyers,” according to Joseph Goldberg, a member of the Private Antitrust Enforcement Hall of Fame. Named among Texas’s top ten antitrust lawyers of 2023, Business Today calls Barnett a “trailblazer” among the “distinguished legal minds” who “dedicate their skill and expertise to the maintenance of healthy competition in various sectors” of the Lone Star State’s booming economy. Barnett is also adept in energy and intellectual property matters and has battled for clients against a Who’s Who list of corporate behemoths, including Abbott Labs, Alcoa, Apple, AT&T, BlackBerry, Broadcom, Comcast, Dow, JPMorgan Chase, Samsung, and Visa.

Barnett commands a courtroom with calm and credibility and “is the perfect lawyer for bet the company litigation,” said Scott Regan, General Counsel of former client Whiting Petroleum. His performance before the Supreme Court in Comcast Corp. v. Behrend prompted the Court to withdraw the question on which it had granted review. The judge in a trial involving mobile phone technology called Barnett “one of the best” and that his opening statement the finest he had ever seen. Another trial judge told Barnett minutes after a jury returned a favorable verdict against the county’s biggest employer that he was one of the two best trial lawyers he’d ever come across—adding that the other one was dead.

A versatile trial lawyer, Barnett knows how to handle a case all the way from strategic pre-suit planning to affirmance on appeal. He’s tried cases to verdict and then briefed and argued them when they went before appellate courts, including the Second, Third, Fifth, and Tenth Circuits, the Supreme Court of Louisiana, and (in the case of Comcast Corp. v. Behrend) the Supreme Court of the United States.

Barnett is a sought-after public speaker, often serving on panels and talking about topics like the trials of antitrust class actions and techniques for streamlining complex litigation. He also comments on trends in commercial litigation and the implications of major rulings for outlets such as NPR, Reuters, Law360, Corporate Counsel, and The Dallas Morning News. He’s even appeared in a Frontline program about underfunding of state pensions, authored chapters on “Fee Arrangements” and “Techniques for Expediting and Streamlining Litigation” (the latter with Steve Susman) in the ABA’s definitive treatise on Business and Commercial Litigation in Federal Courts, 5th, and commented on How Antitrust Enforcers Might Think Like Plaintiffs’ Lawyers.

Clients and other hard graders have praised Barnett for his courtroom skills and legal acumen.

A client in a $100 million oil and gas case, which Barnett’s team won at trial and held on appeal, said Barnett and his team “presented a rare combination of strong legal intellect, common sense about right and wrong, and credibility in the courtroom.” David McCombs at Haynes and Boone said Barnett “has a natural presence that goes over well with juries and judges.”

Even former adversaries give Barnett high marks. Lead opposing counsel in a decade-long antitrust slugfest said “Barry is a highly skilled advocate. He understands what really matters in telling a narrative and does so in a very compelling manner.”

Barnett relishes opportunities to collaborate with all kinds of people. At the Center for American and International Law (CAIL), founded by a former prosecutor at Nuremberg in 1947 and headquartered in the Dallas area, he has served on the Executive Committee, co-chaired the committee that produced CAIL’s first-ever strategic plan, supported CAIL’s Institute for Law Enforcement Administration and other development efforts, and proposed formation of a new Institute for Social Justice Law. CAIL’s former President David Beck said “Barry is extremely bright” and is “very well prepared in every lawsuit or professional task he undertakes.”

Barnett is also a Trustee of the New-York Historical Society, a Sterling Fellow at Yale, a member of the Yale University Art Gallery’s Governing Board, a winner of the Class Award for his work on behalf of his college class, and a proud contributor to the Yellow Ribbon Program at Harvard Law. Barnett’s pro bono work includes leading the trial team representing people who are at greatest risk of severe illness and death as a result of being exposed to the novel coronavirus SARS-CoV-2 while being detained in the Dallas County jail—work for which he received the NGAN Legal Advocacy Fund RBG Award.

At Susman Godfrey, Barnett has served on the firm’s Executive Committee, Employment Committee, and ad hoc committees on partner compensation, succession of leadership, and revision of the firm’s partnership agreement. He also twice chaired the Practice Development Committee.

Barnett understands that clients face many pressures. Managing the stress is important, especially in matters that take years to resolve. He encourages clients to call him whenever they have a question or concern and to keep the inevitable ups and downs in perspective. He wants them to know that he will do his level best to help them achieve their goals. He also strives to foster trust and to make working with him a pleasure.

Cyrus “Skip” Marter, the General Counsel of Bonanza Creek in Denver and a former Susman Godfrey partner and client, said Barnett is “excellent about communicating with clients in a full and honest manner” and can “negotiate for his clients from a position of strength, because he is not afraid to take a case through a full trial on the merits.” Stacey Doré, the President of Hunt Utility Services and a former client, said that Barnett is “an excellent trial lawyer and the person you want to hire for your bet-the-company cases. He is client focused, responsive, and uniquely savvy about trial and settlement strategy.” A New York colleague said, “Barry is a joy to work with as co-counsel. He tackles complex procedural and factual hurdles capably, efficiently, and without drama.”

Barnett’s wide-ranging experience and calm, down-to-earth approach enable him to connect with clients, judges, jurors, witnesses, and even opposing counsel. He grew up in Nacogdoches, Texas. He co-captained his high school varsity football team as an All-East Texas middle linebacker while also serving as the Editor of Key Club’s Texas-Oklahoma District, won the Best Typist award, took the History Team to glory, and sang in the East Texas All Region Choir. As Dan Kelly of client Vistra Corp. put it, Barnett is “a great person to be around.”

Barnett is steady and loyal. He has practiced at Susman Godfrey his entire career. He and his wife Nancy live in Dallas and enjoy spending time in Houston and New York. Their daughter works for H-E-B in Houston, and their son is a Haynes and Boone transactions lawyer in Dallas.

As a member of Ivy League championship football teams in his junior and senior years at Yale and a parent of two Yalies, Barnett has no trouble choosing sides for “The Game” in November. And he knows how important fighting all the way to the end is. On his last play from scrimmage, in the waning minutes of The Game on Nov. 22, 1980, he recovered a Crimson fumble.

Yale won, 14-0.