LOUISVILLE, Kentucky, and DALLAS – The Kentucky Court of Appeals has ruled in favor of JBS USA LLC and Swift Pork Co. in a long-running dispute over improvements at the JBS Louisville Pork Plant in the Butchertown area of Louisville, Kentucky. In its July 10 decision, which became final on Aug. 10, the court ruled against the Butchertown Neighborhood Association (BNA) in its efforts to prohibit JBS from making improvements at the plant. The dispute dates back to 2009, when JBS sought a Modified Conditional Use Permit (MCUP) to build a covered hog chute. The Louisville Board of Zoning Adjustment (BOZA) granted the MCUP with several conditions, including requiring JBS to add $137,000 worth of landscaping around the plant and surrounding area. JBS appealed the zoning board’s ruling to Kentucky state court, claiming the landscaping requirement was unconstitutional. The court agreed and sent the MCUP back to the zoning board for further consideration consistent with the court’s ruling. Although the BNA raised numerous procedural objections before BOZA in an effort to thwart the board from considering or granting the company’s request for a MCUP, JBS was granted another MCUP that allowed the company to build the new hog chute and make other improvements at the processing plant. As a result of its unsuccessful effort to procedurally bar the company’s MCUP application from being reconsidered by BOZA, the BNA appealed to a Louisville district court, which likewise rejected the BNA’s arguments. Ultimately, the case worked its way up to the Kentucky Court of Appeals. In the recent decision, the appeals court rejected the BNA’s complaints.  The opinion marks the first time the Kentucky Court of Appeals has issued an opinion on the merits of the long-standing, highly-publicized

Firm News Bailey Brauer client JBS USA LLC and Swift Pork Co. won a ruling from the Jefferson Circuit Court in Louisville, Kentucky that allows the company to make a series of major improvements at the JBS Louisville Pork Plant in the Butchertown area of Louisville. Attorney Clayton Bailey was recently selected as a Litigation Star by Benchmark Litigation for its 2016 edition. Attorney Alex Brauer recently presented at the Association of Corporate Counsel’s Small Law Fair in Austin, Texas. Attorney Ben Stewart was selected to be a member of the Dallas Stars Season Ticket Holder Council. What types of damages are available if someone fraudulently induces you to enter into an agreement? If you are damaged by a material misrepresentation that you reasonably relied upon in entering into an agreement, you can recover certain damages. The trick is to know which damages to pursue as not all damages are created equal. Today’s newspapers are filled with stories about people and companies being defrauded. Whether it be investments, contracts for goods and services, or partnerships, lawsuits are filed every day alleging fraud claims. But litigants must beware – damages sought based on a fraud claim are not one-size-fits all. In fact, as reflected in a case involving a Baylor coach, the particular damages sought can lead to the unraveling of a fraud case. If you enter into an agreement based on a fraudulent representation and are damaged, you have two remedies: (1) maintain the contract and recover damages for the fraud; or (2) rescind the contract, return what you purchased, and receive back what you paid. Damages for fraud are divided into two categories, direct damages and consequential damages. An example of consequential damages would

DALLAS – JBS USA LLC and Swift Pork Co. have won a ruling that allows the company to make a series of major improvements at the JBS Louisville Pork Plant in the Butchertown area of Louisville, Kentucky. The judge’s order clears the way for JBS to complete work on a set of improvements aimed at upgrading the appearance of the plant as well as reducing the plant’s impact on the surrounding neighborhood. The improvements include an enclosed chute for processing animals, a covered outdoor employee break area, a decorative fence in front of the facility, and a small expansion of the plant’s processing area. Click here and here to see news coverage of the ruling. The Louisville Metro Board of Zoning Adjustment (BOZA) approved the proposed improvements in March 2014, but that ruling was appealed by the Butchertown Neighborhood Association (BNA), which has a history of lodging complaints against JBS. In her April 7 ruling, Jefferson Circuit Court Judge Ann Bailey Smith upheld the zoning board’s decision and chastised the neighborhood association for its history of antagonism toward JBS: [T]he Association has made what amounts to hyper technical objections to the Board’s approval process that can only lead the Court to conclude that the Association’s problem is not with the physical modifications themselves, but with JBS’ very presence in Butchertown. Indeed, the Association’s main objection is that the Board did not reconsider the conditional use permit it issued in 1969 for the entire premises, thus calling into question whether JBS should continue to operate its meat packing plant in the neighborhood at all. Attorney Clayton Bailey, a name partner in the Dallas complex litigation boutique Bailey Brauer PLLC who briefed and argued JBS’ case before

Firm News - March 2015 Bailey Brauer client JBS USA LLC and Swift Pork Co. won the dismissal of a nuisance lawsuit filed by multiple plaintiffs over the JBS Louisville Pork Plant’s use of a parking lot near the processing plant in the Butchertown area of Louisville, Kentucky. Attorney Clayton Bailey was a guest speaker at the 2015 Louisiana Poultry Seminar held in Shreveport, Louisiana. Attorney Alex Brauer was named to the 2015 Texas Rising Stars list, marking the sixth consecutive year that attorney Brauer was selected by the publisher of Rising Stars. Attorney Ben Stewart was featured in articles published by the Dallas Morning News and The Texas Lawbook addressing shadow banking and a recent decline in Texas business bankruptcy filings. Texas law may be changing regarding the ability to recover attorney’s fees in breach of contract cases. In the past, successful plaintiffs in breach of contract cases were able to recover their reasonable attorney’s fees from defendants under Section 38.001 of the Civil Practice and Remedies Code. Recent decisions from the Houston Court of Appeals and a Dallas federal district court may limit this ability if the defendant is a partnership or limited liability company. Texas law follows the “American Rule” when it comes to recovery of attorney’s fees in a litigation matter. The American Rule provides that each party must pay its own attorney’s fees. You may have heard that despite the American Rule, parties in Texas can recover their attorney’s fees if they are the prevailing plaintiff in a breach of contract case. This ability generally arises in one of two ways: (1) the contract at issue contains a clause providing that the prevailing party in a dispute can recover its

DALLAS – JBS USA LLC and Swift Pork Co. on March 2 won the dismissal of a complaint filed over JBS Louisville Pork Plant’s use of a parking lot near the processing plant in the Butchertown area of Louisville, Kentucky. Click here to see news coverage of the lawsuit’s dismissal. The suit by Butchertown Neighborhood Association Inc. (BNA) and individual area residents was filed in 2006 against Swift and the Louisville/Jefferson County Metro Government, which leased the parking lot to Swift. The company used the lot as a staging area for trucks awaiting pickup by grocery stores and other buyers of Swift brand processed pork. Neighbors complained about noise and diesel emissions from truck engines, among other issues. The lawsuit sat mostly dormant until 2013 when the plaintiffs amended their filing to include Swift’s parent company, JBS USA, as a defendant. Around this time, Swift and JBS brought in their longtime litigation counsel Clayton Bailey from the Dallas complex litigation boutique Bailey Brauer PLLC to serve as co-counsel with attorneys Glenn Price and Bart Greenwald from the Louisville office of Frost Brown Todd LLP. After the plaintiffs amended their petition, JBS USA and Swift filed a motion asking the plaintiffs to substantiate their allegations. JBS and Swift later served written discovery and sought to depose BNA President and Butchertown resident Andrew Cornelius seeking information supporting the plaintiffs’ claims. The plaintiffs responded on Feb. 25 by filing a motion for dismissal. Circuit Court Judge A.C. McKay Chauvin of Louisville approved the motion on March 2, dismissing the case against JBS, Swift and the county with prejudice. “Clearly, my clients are pleased with this turn of events,” says Mr. Bailey. “And in return for the dismissal, JBS

DALLAS – Attorney Alexander M. Brauer, a name partner in the Dallas trial and appellate boutique Bailey Brauer PLLC, has been recognized on the 2015 Texas Rising Stars list for his work in litigation matters. This is the sixth consecutive year that Mr. Brauer has been selected by the publishers of Rising Stars, which honors young legal leaders. To be eligible for the exclusive annual listing, a candidate must be either 40 or younger or in practice for 10 years or less. No more than 2.5 percent of Texas lawyers are selected to Rising Stars, which is published by Thomson Reuters’ legal division. To compile the list, the publication conducts a statewide survey of lawyers. Mr. Brauer represents individual and corporate clients in high-stakes litigation at both the trial and appellate levels. Mr. Brauer and his colleagues have a track record of delivering exceptional results for clients, including: • Obtaining dismissal of a lawsuit filed against a Florida-based company after challenging the jurisdiction of Texas courts; • Obtaining a favorable ruling in bankruptcy court for the former parent of Furr’s Cafeteria against the purchaser of the company’s assets; • Defeating antitrust and deceptive trade practices claims filed by nearly 200 plaintiffs from Louisiana, Arkansas and Texas in one of the nation’s most challenging venues; • Successfully resolving claims of an alleged fraudulent investment scheme during a federal jury trial, and; • Defeating fraud and contract claims alleged against a technology company officer in a complex multi-party dispute stemming from the issuance of preferred stock. “Alex is an extraordinary lawyer who achieves great results for his clients,” says Bailey Brauer co-founder Clayton Bailey. “He has had great success over his past 10-plus years of practicing, so

By Mark Curriden Senior Writer at The Texas Lawbook DALLAS (Jan. 13) – Former American Airlines General Counsel Gary Kennedy told a private gathering last month of a hundred internal legal and corporate advisers for Energy Future Holdings that the utility should brace itself for the “almost unimaginable costs” of being in U.S. Bankruptcy Court. “Our legal bills in the bankruptcy case at American Airlines ran about $500,000 a day,” Kennedy said, causing audible gasps from the EFH folks. “It has become too expensive to go bankrupt today. I tell people to avoid bankruptcy if at all possible because it is not a good time.” Apparently, a growing number of Texas business leaders agree. Hundreds of companies facing significant financial distress are bypassing federal bankruptcy courts as a means of restructuring debt and reorganizing their business models and are turning to private sources of relief instead. The number of Texas businesses filing for bankruptcy declined 20 percent in 2014 and plummeted more than 56 percent during the past five years, according to new statistics compiled by Androvett Legal Media. Legal and financial experts say the factors include a booming economy, dirt-low interest rates, an unprecedented access to cash through the emergence of a shadow banking system and the ballooning cost of litigating a case in bankruptcy court. But those same insiders predict that the plunging price of oil and gas will likely lead to a significant increase in new business bankruptcy filings in the next six months. “No business wants to go into Chapter 11 if they can help it,” says Martin Sosland, a partner in the Dallas office of Weil, Gotshal & Manges, which is widely acclaimed as one of the best bankruptcy law