Rich Phillips Quoted in Law360 on SCOTX Cases to Watch

“5 Texas Supreme Court Cases To Watch”

In the Texas Supreme Court’s new term, the court could set national precedent on whether independent patent agents can be covered by attorney-client privilege and give lawyers a valuable tool to dismiss cases brought against them based on statements made in court.

Hill v. Shamoun & Norman LLP

Hunt Petroleum Corp. heir Al Hill Jr. is arguing Shamoun & Norman LLP should be limited to a $600 hourly rate for its work negotiating a global settlement resolving disputes over the family’s estate, and that a lower appellate court wrongly allowed the firm to recover the benefit of an unenforceable oral contingency fee agreement when it upheld a $7.25 million attorneys’ fee award.

The firm has argued that although it was paid about $900,000 in hourly fees for work on four lawsuits related to the estate, it took on the substantive work of negotiating the global settlement on an emergency basis and should be paid the bonus that Hill promised.

“It could be interesting in the day of alternate fee agreements whether there is a distinction between a contingent fee and a success bonus,” Rich Phillips of Thompson & Knight LLP said. “Obviously the smart thing to do is always put it in writing.”

In re: Xerox Corp.

In one of the court’s most recently granted cases, Xerox will argue it’s wrongly facing sole liability in a civil Medicaid fraud suit accusing the company of signing off on $1.1 billion in claims for orthodontic services without properly vetting them. Xerox contends it should be able to point the finger at and share blame with the orthodontists who provided the procedures under the state’s proportionate responsibility rules.

At issue is whether the civil penalties Texas is seeking under the Texas Medicaid Fraud Prevention Act qualify as “damages” that are subject to proportionate responsibility calculations under Chapter 33 of the Texas Civil Practice and Remedies Code. The application of Chapter 33 to tort-based claims has been tested periodically since it was enacted and is a perennial difficult issue for litigators to wrestle with, Phillips of Thompson & Knight said.

Phillips said the case could be a chance for the court to write more about Chapter 33 and how it interacts with other tort claims and the TMFPA. And the outcome of the case could have an important effect on health care fraud cases, he said.

“It’ll be interesting because obviously you’re going to go after the deep-pocketed people and they’re going to point the finger at other responsible parties,” Phillips said. “If the state can separate them out like this and keep them from pointing the finger at each other, the focus will be on the people who have the ability to pay.”