Broocks Law Firm
248 Addie Roy Rd., Suite B-301
Austin, TX 78746
(512) 201-2000
Scroll Through To See Some Of The Various Cases In Which The Firm Has Been Involved Or Select From The Menu At Right The Case Category Of Particular Interest
Litigation Overview
The map below indicates some (but not all) of the places across the country where Mr. Broocks has litigated. It also shows some (but not all) of the clients (indicated by the abbreviation "cli") he has represented and some of the adverse parties against whom he has litigated (indicated by the abbreviation "adv").
Litigation can take place in a court (before a judge and/or jury) or in arbitration. As to courts, each state has its own “state court” system, going from district court, to court of appeals to each state’s own supreme court. There is a federal system as well that has district courts and courts of appeal, culminating in the United States Supreme Court. The federal system also has bankruptcy courts in which some cases are litigated. Arbitrations are conducted by agreement before a neutral panel of lawyers, that can range from one to three. When we refer to "litigation," it is to disputes in any of these tribunals.
The process of litigation formally starts with the filing of a lawsuit or claim and almost invariably ends with either a summary dismissal, trial or settlement. Typically, with anything except a settlement, an unhappy litigant can appeal their loss to a higher authority, usually a court of appeals.
Ben Broocks has litigated in tribunals virtually across the country as the map indicates, in some cases representing and others bringing claims against, some of the most prominent business names in American business.
Mr. Broocks is currently licensed and/or admitted to practice with the following:
-
Texas Supreme Court and all Texas state courts
-
Federal Courts in the
-
Western District of Texas
-
Southern District of Texas
-
Northern District of Texas and
-
Eastern District of Texas
-
-
the United States Fourth Circuit Court of Appeals
-
the United States Fifth Circuit Court of Appeals
-
the United States Seventh Circuit Court of Appeals and
-
the United States Supreme Court
In addition to trial practice, Mr. Broocks has personally argued appeals in the Austin and San Antonio Courts of Appeal, and has worked on appeals in the Houston, Dallas and Corpus Christi Courts of Appeal.
He has also personally argued appeals in the federal Fifth and Seventh Circuits and has worked on matters in the federal Fourth Circuit. He has handled cases in numerous cities across Texas, and has appeared pro hac vice in courts in numerous states including:
-
California
-
Delaware
-
Florida
-
Idaho
-
Illinois
-
Louisiana
-
Michigan
-
New Jersey
-
New York
-
Nevada
-
North Carolina
-
Tennessee
International Matters
Broocks’ practice has always had an international aspect. Many cases and projects have taken him to foreign countries. He has taken depositions, been with witnesses, gathered evidence, worked on projects, and/or undertaken significant activities in such places as:
-
Australia
-
Canada
-
China
-
Gibraltar
-
Hong Kong
-
Indonesia.
-
Korea
-
Philippines
-
Malaysia
-
Mexico
-
Singapore
-
South Africa
-
Ukraine
-
United Kingdom (numerous places therein in addition to London including the Isle of Mann and Channel Islands)
Overview of Cases
THE FOLLOWING ARE A SAMPLING OF THE KINDS OF CASES IN WHICH BROOCKS HAS SERVED AS LEAD COUNSEL.
COMPLEX GENERAL COMMERCIAL CASES
Cases that might fall within the description of "general commercial," cover virtually the entire waterfront of complicated commercial disputes. These kinds of cases are so varied they almost defy categorization.
Cli
vs
Adv
For example, in Los Angeles Mr. Broocks represented Omni Hotels in its efforts to acquire a beautiful hotel that was flagged as an Inter-Continental Hotel.
Omni Los Angeles Hotel
Cli
The numerous cases spawned by this matter included simultaneous suits in Texas State Court (Dallas) and two Los Angeles-based federal courts. These matters generally involved the foreclosure/takeover of the hotel while simultaneously working to oust Intercontinental Hotels from a management contract that had been determined to be an “agency coupled with an interest,” and also encompassed issues of creditor rights, stakeholder rights, antitrust issues and a host of other unique complicated issues.
Cli
Mr. Broocks also defended Neiman Marcus in a putative class action in New Jersey arising out of allegations that certain portions of Neiman Marcus’ catalogs were deceptive.
Broocks represented the family of Tom Crow, legendary founder of Cobra Golf Clubs, who turned to Broocks when, in connection with the construction of a golf course around a proposed real estate development in West Texas, it was determined that the entire location was experiencing environmental issues theretofore unknown.
Broocks again represented Jamie Crow (son of Tom Crow), his wife, Margaret, and fellow Australian businessmen Kevin Cook, Murray D'Almeida, and Tony Vallone, against health supplement giant WELLNESS INTERNATIONAL NETWORK, LTD, and certain of its owners and officers, in a case where Crow was approached by WIN to open the market to WIN's products in Australia. The case involved issues associated with obtaining approval for sale of health products in Australia from the Therapeutic Goods Administration, Australia's counterpart to the Food and Drug Administration.
Cli
Cli
In New Orleans Broocks defended Omni Hotels in a trial regarding allegations of improper hotel maintenance that allegedly resulted in personal injuries to guests and workers from alleged exposure to toxic substances.
INVESTMENT AND MANAGEMENT RELATED FAILURES; SECURITIES FRAUD
These kinds of cases, tried and handled, have included disputes between and among competing factions of equity owners; equity owners against management and vice versa; and disputes between and among competing factions of management.
In a particularly difficult case, Mr. Broocks was lead counsel in an arbitration where a founder of a company was alleged to have been forced out by partners, who were alleged to have been conducting undisclosed negotiations to sell the business.
Other cases litigated have included a trial in Delaware Chancery Court regarding the interpretation of shareholder voting agreements as well as derivative actions among the competing factions of investors. In one case involving Sealy Mattress and its parent company, private equity group Bain Capital, litigation arose, among other things, regarding the interpretation and a reformation of voting agreements, shareholders agreements, and other relevant agreements amidst allegations Bain and Sealy had attempted to accomplish an involuntary squeeze out of the non-operating shareholder group.
Cli
Mark Brunell and Tony Boselli when they played professional football for the NFL’s Jacksonville Jaguars
Other cases handled have included complex voting rights issues among classes of equity holders as well as derivative claims. Many of these cases have included claims of violations of fiduciary duties. Often, alleged securities violations are intertwined with other investment and management related disputes.
Similarly, cases involving primarily allegations of violations of state and federal securities laws have been both brought and defended, which pitted buyers and sellers of equity interests. For example, one case of note involved “green energy” consolidated holding company Gridpoint, Inc. which had issued its stock in exchange for all the stock of bio-diesel refining company, Standard Renewable Energy, amid later allegations that Gridpoint’s financials were not accurate. Broocks represented Standard Renewable Energy and legendary “green” investor, David Gelbaum and his investment vehicle, the Quercus Trust.
Resolving these kinds of cases is often not simple.
Publicly filed settlement agreement ending case
SECURITIES TRADING AND RELATED MATTERS
Cases have been litigated involving details of securities trading, including trading floors operating in Asia and trading back on US markets, as well as other broker/dealer and investment adviser related issues.
The following is a portion of an opinion rendered by the federal Fifth Circuit Court of Appeals in which case Broocks was lead counsel. The matter involved a dispute between on the one hand, a securities trading floor in China that employed Chinese stock traders to trade US securities on US exchanges (Broocks’ client), and a US firm of trainers who were to train Chinese personnel to trade those securities. This case involved issues of conduct constituting that of an investment adviser and broker dealer under federal and state law.
336 Fed.Appx. 443
United States Court of Appeals,
Fifth Circuit.
S & D TRADING ACADEMY, LLC; S & D Global Trading Inc., Plaintiffs—Appellants
v.
AAFIS INC., Defendant–Appellee
S & D Trading Academy, LLC; S & D Global Trading Inc., Plaintiffs—Appellees
v.
AAFIS Inc., Defendant–Appellant.
Nos. 08–40711, 08–40776.
Appeal from the United States District Court for the Southern District of Texas, USDC No. 3:06–CV–739.
Before REAVLEY, WIENER, and SOUTHWICK, Circuit Judges.
Opinion
PER CURIAM:*
S & D Trading Academy, LLC and S & D Global Trading, Inc. (collectively, “S & D”) appeal the district court’s grant of summary judgment in favor of AAFIS, Inc. on S & D’s contractual and quasi-contractual claims. AAFIS cross-appeals regarding the award of costs. For the reasons that follow, we AFFIRM the district court’s ruling with respect to each issue.
I. BACKGROUND
In early 2005, AAFIS approached Donald J. Cleary about giving training on the day trading of stocks. AAFIS, a Los Angeles based investment company, is an active trader in the United States stock markets. It employs a company based in China called Asian American Association, Shen Yang, Limit Liability Company (“ASY”). ASY employs Chinese citizens to trade on AAFIS’s account, but ASY’s employees first need to be trained. Cleary was to train twenty-eight of ASY’s Chinese traders. Cleary recruited Robert Compher to assist him with the training. Those two formed S & D Trading Academy, LLC and S & D Global Trading, Inc., through which they would provide their services to AAFIS.
S & D entered into an oral agreement with AAFIS to train the ASY employees. S & D would receive a base compensation of one dollar for every thousand shares traded during a six-month probationary period and for up to thirty-six months thereafter. Bonus compensation would be based on the profits generated by the traders. Training occurred both in Texas and China. While in Texas, S & D performed most of its training in an apartment furnished with tables and computers; the Chinese traders both worked and lived there. The training consisted of Cleary and Compher’s monitoring the live, online trading activities of the ASY employees while also trading on their own accounts.1 Cleary and Compher further provided the employees with market research, stock recommendations, and trading strategies at the beginning of each trading day. And they set the “stop loss” for each trader, which was the maximum loss a trader could sustain before the trader was required to exit the market for the day. Cleary and Compher provided such training for a continuous period of approximately sixteen months. During the training, neither S & D nor Cleary nor Compher held any state or federal registrations or licenses.
The training began without a written agreement between S & D and AAFIS. The parties reached an impasse in their negotiations about a contract. AAFIS terminated its arrangement with S & D, Cleary, and Compher, effective October 2006. S & D had been paid periodically for its work, but it believed additional compensation was due. In November 2006, S & D filed suit against AAFIS, alleging breach of contract and misappropriation of trade secrets. S & D later amended its complaint, dropping the trade secrets claim and adding claims for quantum meruit, unjust enrichment, and money had and received.
In April 2008, AAFIS moved for summary judgment. It alleged that S & D’s failure to register as an investment adviser or broker/dealer with the proper state and federal authorities precluded S & D from recovering under the oral agreement between the parties. S & D responded that it was not a broker/dealer and that it qualified under a “teacher” exception to the investment adviser registration requirements.
The district court agreed with AAFIS and granted its motion for summary judgment solely because S & D had failed to register as an investment adviser as required by the Texas Securities Act. The court rejected S & D’s contention that it fit into an exception to the statute’s registration requirement for teachers. The court looked to a Securities and Exchange Commission no-action letter. That letter interpreted an almost identical exception to the investment adviser provision of the federal Investment Adviser Act. It concluded that the teacher exception “only covers actual teachers who work for accredited and certified institutions or schools of higher learning.” S & D did not qualify.
TRADE SECRETS AND INTELLECTUAL PROPERTY RELATED CASES
Mr. Broocks has tried and handled some of the most complicated trade secret and related “intellectual property” issues.
For example, given Mr. Broocks’ prior experience in the world of high-frequency securities trading he was called upon to represent a global securities trading firm in North Carolina which had spent significant sums developing high-frequency securities trading strategies and writing the computer code to execute high volumes of trades based
Excerpts of Publicly filed TROentered by United States Federal Court
Cli
on the strategies developed, only to find out that one of their programmers had created and deployed a mirror operation in Asia to take not only the strategies but the software code being developed for their own use. The unfaithful employee’s activities were far down the road even encompassing meetings with prospective hedge fund investors who in turn were going to solicit clients themselves. In these kinds of cases, speed is often crucial to obtain restraining orders and injunctions, which was done there, and in the North Carolina case, a United States District Court granted the unusual interim remedy of a partial asset freeze.
These kinds of cases can often overlap with other bodies of law such as employee privacy rights, particularly where an investigation into the employee’s activities prior to filing suit involves the examination of employee email accounts (sometimes personal) and other sources of information, which implicates state and federal privacy statutes.
Mr. Broocks has litigated many forms of trade secret intellectual property-related controversies, including scenarios where employees have taken a variety of information from their company and even begun to use that in competition with their employer while still employed. Cases have included issues associated with customer lists; internally developed processes and procedures; internally developed company forms and checklists; even trade secret status claimed on information that belongs to third parties but entrusted to a company who then seeks trade secret status of that information.
Adv
Cli
Cli
These kinds of disputes have also involved matters unrelated to corporate espionage/theft but no less complex including joint ventures formed among companies for the joint exploitation and development of technologies who later suffer the complexities of a "corporate divorce" where rights and title to intellectual property jointly developed must be addressed.
CONSTRUCTION AND CONSTRUCTION RELATED MATTERS
Cases handled have included complex construction cases and customer damages alleged because of claimed faulty repair work.
In San Francisco, for example, Broocks represented the Omni Hotels in a multi-million-dollar dispute over the building basically from scratch of an historic building shell into a luxury hotel in the middle of downtown San Francisco.
Construction related litigation has also included such things as maintenance issues on escalators and elevators in retail establishments such as Neiman Marcus.
Cli
Construction and related litigation has also involved claims against architects, contractors and subcontractors and esoteric claims regarding construction related issues in processing facilities such as Ethanol and Biodiesel refineries.
Not actual refinery; similar photo used for reference
OIL, GAS AND ENERGY RELATED MATTERS
Cases have been tried and handled involving all aspects of the oil, gas, and energy business, including the following:
Cases involving alleged fraud and breach of duty in acquiring and selling oil and gas leases
Oil and gas cases involving interpretation and presentation of geological and geophysical data associated with underground structures, formations and target zones
3-D Seismic
Oil and gas cases involving complex oil and gas issues associated with the interpretation of joint operating agreements and associated participation agreements
Cli
Disputes regarding all manner of oil field equipment and operation, including drilling chokes, sand separators, water separators, fracking sand and storage
Disputes among joint owners in a natural gas pipeline over operational issues and duties
Adv
LIBEL, SLANDER AND BUSINESS DEFAMATION
No type of case is quite as hard fought as those involving defamation – where a name or reputation has been tarnished.
Broocks has tried and handled such defamation cases and done so against some of the largest broadcast companies in the country, including Capital Cities ABC as well as TMZ and Warner Brothers in high profile cases.
Adv
Adv
Adv
He has litigated as well business defamation cases where collection of commercial debts has resulted in wrongful collection actions as well as defamation claims.
THE BUSINESS OF MORTGAGE BANKING
Mr. Broocks has been involved in numerous matters in the non-bank residential mortgage market, in cases involving many aspects of the mortgage banking business, including the esoteric aspects of buying and selling of servicing rights and mark-to-market valuations of portfolio servicing rights.
GOVERNMENTAL AGENCIES AND CONSUMER RELATED MATTERS
Cases tried and handled have included defending actions brought by the Federal Trade Commission involving allegations of unfair and deceptive trade practices as well as other governmental agencies.
FTC standards of “unfair and deceptive” acts, is also a standard employed by financial institutions, whom Broocks has been called on to advise in the past.
Other matters have been litigated before or against other state agencies.
Adv
Adv
Adv
EMPLOYMENT RELATED MATTERS
Mr. Broocks has tried and handled employment related matters all the way from drafting to enforcing arbitration, confidentiality and non-compete agreements, to detecting and prosecuting sophisticated corporate espionage and corporate theft, including the representation of Neiman Marcus in California courts on employment issues.
Cli
Cli
Cli
Cli
INVESTIGATIONS
Mr. Broocks has been involved in investigations, both internal and external, including a clandestine “sting” operation where advice was given about activities undertaken in connection with this sting. A published version gives the essence:
Over espresso and orange juice, Dallas developer Louis Garfield Reese III huddled with several would-be business partners in a suite in Milan’s four-star Excelsior Hotel. Amid sophisticated chatter about the charms of Florence and Milan, Reese ran through a series of possible real estate deals in Hawaii and Dallas, most notably a plan to purchase the exclusive Mauna Lani Bay Hotel and some surrounding land on Hawaii’s Kohala Coast, a deal worth more than $50 million. …Now he had some equally big players ready to bite: a delegation of Swiss bank officers led by an executive named Hans Von Helbach—or so Reese thought as he explained how they might make a cool $40 million selling German retirees expensive patio homes on the lava-rock coast. Von Helbach and his two companions were keenly interested in Reese’s background, and they had good reason. In 1992, Reese began a three-year stretch in a federal prison after pleading guilty to defrauding bank regulators and cheating the IRS. From the mid-1980s real estate and savings-and-loan collapse, he still owed roughly $90 million to the Federal Deposit Insurance Corp. and private collection companies that, over the years, had purchased court judgments against him at government auctions. Reese still owes the feds $3.4 million in restitution in his criminal case.
Not to worry, Reese assured Von Helbach. He hadn’t let the debts crimp his case flow. ‘I’m quite capable of compartmentalizing my problem,’ Reese said. ‘I have no creditors that call…My life is as calm and quiet as if I were at sea on a clear morning…It’s quite true that I lost hundreds of millions of dollars of their money and my money. But that did not affect my lifestyle.’
To be sure, he lives in the same 6,107 square-foot house on a gated four-acre estate in Preston Hollow that he bought in 1982. Through a company owned by his wife, which makes ‘a million and a half, two million a year,’ he pulls out enough for ‘household expenses and the lifestyle,’ he told the Swiss bankers, and he continues unabated buying large tracts in Dallas’ outskirts, subdividing them, and selling them to some of the largest homebuilders in the nation, including Pulte Homes and Centex Homes.
Despite what he described to Von Helbach as his ‘mid-term vacation’ at the Yankton Federal Prison Camp in South Dakota, he moved tens of millions of dollars of real estate into companies and trust funds owned by his wife and three children, and still controls them, he told the group. He bought and renovated dozens of those properties as a pioneer investor in Lower Greenville Avenue and Deep Ellum, Dallas’ entertainment zones.
There’s offshore money too, he told the small gathering, demonstrating what seemed to be a considerable knowledge of the secretive banking practices of the Cayman Islands and the Isle of Man, an autonomous financial haven located in the Irish Sea. ‘I have access to my offshore money,’ he said. ‘Any moment.’
When one of Von Helbach’s associates asked whether the federal government or creditors might come after him at any moment, he replied, snapping his fingers, ‘None of that stuff happens, and if it does happen, believe me, they will tire like that. They will give up almost instantly.’
Well, not exactly, Reese was about to learn. Behind the fake German accent and pretense of noble pedigree, Von Helbach was actually Juval Aviv, a colorful private investigator working for Reese’s largest creditor…. The Milan meeting, held in August 1997, turned out to be an elaborate sting….
Korosec, Thomas. “Hide and seek.” Dallas Observer, Thursday, June 8, 2000.
CRIMINAL
Mr. Broocks has, with co-counsel who practices criminal law exclusively, defended a criminal bid-rigging and price-fixing case; conducted an investigation of Medicare fraud; and defended a property forfeiture action brought by the Justice Department.
HOSPITAL AND PHYSICIAN TYPE CASES
Mr. Broocks has handled a wide range of credentialing issues, capital formation by means of physician investment, dealings with hospital-based physicians, as well as fraud and abuse, and related issues.
ANTITRUST
Mr. Broocks has been involved in a wide range of these types of cases, including “tying” arrangements, price fixing and bid rigging, to exclusive dealing arrangements, to name a few.
FAMILY LAW RELATED CASES
Broocks has handled a number of family related cases, including involuntary mental commitment as well as divorce cases.
OPPOSING COUNSEL FACED
Mr. Broocks has faced some of the most prominent opposing lawyers and law firms in the country including the following (an asterisk [*] indicates he has not only litigated against the firm but also in a different case(s) has served as co-counsel). This list is by no means exhaustive.
Baker & Botts *
Farella Braun
Locke Lorde
Beck, Redden
Fulbright & Jaworski
Munsch, Hardt, Kopf & Harr
Sheppard, Mullin, Richter & Hampton
Susman & Godfrey *
Bell, Boyd & Lloyd
Gardere & Wynne
Thompson & Knight
Hogan & Hartson
Mikal Watts, Watts, Guerra *
Bishop, Payne, Williams & Werley
Morrison & Foerster
Andy Vickery
Vinson & Elkins
Robert Creely
Bracewell (formerly Bracewell & Giuliani)
Hohmann, Taube and Sommers (Eric Taube) *
Morris, Nichols Arsht & Tunnell
Winstead & Sechrest
Chamberlain Hrdlicka
Jenner and Block
Sidley Austin
Kirkland & Ellis
Jackson Walker (Chip Babcock)
McGinnis Lochridge & Kilgore (Jack Balagia, former General Counsel for Exxon)