Business Torts

The majority of commercial cases now include one or more claims based on business torts such as fraud, negligent misrepresentation, breach of fiduciary duty, defamation, or tortious interference. Business torts typically present opportunities for creative lawyering by both the plaintiff and the defendant with respect to liability theories and damage calculations. Navigating the various restrictions courts have placed on business torts, particularly those prosecuted in conjunction with contract claims or taking advantage of those restrictions when representing the defense, can present a challenge to the best of lawyers. Lawyers in our firm have had substantial success both sustaining and defeating business tort claims.


Tom Fulkerson has represented Enron Oil & Gas Company in a $223-million claim by working-interest owners that EOG, as operator, made improper price concessions connected to joint natural gas sales, handling all aspects of the jury trial up through the verdict favoring EOG. He handled the $657-million claim of the National Gypsum Company Asbestos Settlement Trust against former officers of NGC for fraud and breach of fiduciary duty claims arising out of NGC’s bankruptcy, including the successful appeal of summary judgments obtained by defendants in the trial court. After the trial court’s summary judgment was overturned, he advised his clients to settle. They did so for the public sum of $12.5 million. A further appeal by the remaining plaintiffs resulted in the reinstatement of the trial court’s summary judgment. A total of $10 million was recovered by the trust net of contingency fees. He represented two Chinese-American businessmen in the defense of a $38-million breach of fiduciary duty case arising out of a domestic real estate corporation funded by money from the People’s Republic of China’s principal state lenders. It was alleged that although our client was a minority shareholder, he actively managed a series of real estate investments in Texas, directing the businesses owning those properties to sell them to affiliates at discounted prices and diverting portions of the proceeds of those sales. Tom represented the founders of a venture to transport liquefied natural gas in their defense of claims of usurpation of corporate opportunity by one of the group’s former employers.


Wes Lotz assisted in the representation of Exxon Mobil in a complex commercial arbitration involving breach of fiduciary duty and contract claims involving a joint venture that was one of the largest gas and power traders in North America. He handled extensive pretrial discovery and preparation, including more than 20 depositions, witness preparation, overseeing a team of document reviewers, working with expert witnesses in the fields of energy trading, accounting, and internal controls, second-chairing a four-week arbitration, and participating in post-hearing briefing and argument. He previously assisted in the representation of a power generation company asserting breach of contract claims and with the defense of a private independent energy company in oil and gas litigation between working-interest owners involving claims under a joint venture agreement and joint operating agreement. He assisted in the successful representation of Total Separation Solutions, LLC in litigation involving breach of contract, breach of fiduciary duty, theft of trade secrets, and other business torts.


These are but examples of the myriad of fraud and breach-of-fiduciary-duty cases, large and small, that the firm’s lawyers have handled. Each case is unique, but no matter what its size, every business tort case requires the kind of careful lawyering and attention to detail that our lawyers have developed through their years of experience handling such cases on both sides of the docket.