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INDEPENDENT NEUTRAL. COMMERCIAL LAWYER AT HIRSCH & WESTHEIMER, PC 1966-2020. Extensive experience in commercial transactions and commercial litigation in state and federal courts as well as bankruptcy and probate. Extensive experience in cases involving corporations and partnership issues, breach of contract, lending, bank deposits and transfers, real estate, energy and construction, administration of trusts and estates and breach of fiduciary duty. J.D. University of Texas School of Law, with honors (1966), Associate editor, Texas Law Review Transactional experience includes buying and selling businesses, both in public and private transactions.
Mediated over 1500 commercial disputes between domestic and multi-national companies, mainly ad hoc, including the following representative sample: Energy • Contract dispute between service company and operator of well for damage to well allegedly caused by failure to properly perform drill-out work and pipe retrieval in horizontal well. • Dispute between working interest owner and operator of wells regarding Exploration Agreement and Joint Operating Agreement and failure to comply with COPAS accounting procedures and pay amounts under the joint interest billings. • Case involving insurance coverage for loss of an offshore sub-sea well in the North Sea under an Energy Package Policy issued by various London insurers and alleged damages to the assembly allegedly caused by severe windstorm. • Dispute between exploration company and service company involving alleged fraud, a bad squeeze job, incompetent control of water flow, and failure to pay for services rendered. • Dispute involving the failure of a wireless drift indicator to accurately monitor the angle of the drill bit during drilling operations. • Dispute between developers and suppliers of resin coated sands used in fracking involving allegations of breach of contract, violation of trade dress, and unfair competition. • Dispute regarding whether certain non-participating royalty interests in two tracks of land were valid and subsisting, or the interest terminated pursuant to the terms of the Royalty Deeds. • Dispute between contracting parties concerning the alleged faulty design and construction of a special use drilling platform and unfair pricing for the completed rig. • Dispute involving a service company suit to recover on a sworn account and cross action for damage to wells and threat of bankruptcy of defendant. • Claim for the recovery of damages allegedly caused to property by release of salt water and flaring of gas. • Claims for personal injury and property damage caused by a superfund site between 2000 individuals and a refinery accused of dumping toxic waste. • Dispute involving title to oil and gas interests, offset wells and directional drilling and allocation of revenue between different oil wells. • Dispute involving alleged breach of a commission agreement seeking specific performance of delivery of assignment of overriding royalty interest allegedly due for finding an operator of an offshore oil and gas concession in the Mediterranean. Commercial • Dispute between parties to an exclusive license agreement for the sale and distribution of hardware and software tools that measure emissions in refineries and chemical plants to determine if the company is in environmental compliance. • Mediation of over 20 personal injury claims against an Energy Company resulting from the explosion of a refinery. • Dispute involving buyer and seller of a condominium unit for breach of purchase and sale agreement relating to time for closing and completion of the unit and plans and specifications for construction of the unit. • Dispute between several parties involving breach of architect copyright laws. • Dispute between an owner of refinery equipment, financial institution with security interests and liens on refinery equipment, and company storing the refinery equipment. • Dispute involving a retailer that sold consumer loans by bulk sale. • Dispute between stockholders/family members of several companies in the equipment rental business involving alleged breach of fiduciary duty and willful violation of agreements. • Dispute between minority investor-shareholders of medical technology company alleging fraud, interference with business relationships, breach of fiduciary in operations, and management of companies in which some of the investors may own interests. • Dispute between owners of undeveloped office condominiums involving misuse and misappropriation of funds by operator of real property. • Securities cases involving fraud, unsuitability, and breach of fiduciary duty. • Claim by FTC seeking injunctive relief and penalties against a technology advertising company for allegedly participating in deceptive and unfair acts and practices in the course of transmitting unsolicited commercial electronic text messaging. • Will contest lawsuits involving allegations of incompetency and undue influence. • Trust litigation for breach of fiduciary duties and failure to properly account to beneficiaries. Employment • Dispute between employer and employee under employment contracts. • Disputes involving covenants not to compete, non-disclosure and confidentiality agreements. • Disputes involving age and gender discrimination and sexual harassment.
I believe that the mediation is the parties process and it my job to use my best efforts to understand their issues and goals to lead them to settlement using either facilitation, evaluation, or both. I stress the advantages of settlement:t their control, certainty, closure and reduced costs and try to explore the options rather than litigation being creative under the circumstances of a particular case.
$2000 PER PARTY PER DAY OF MEDIATION
• American Arbitration Association Panel of Neutrals (Large Complex Commercial Cases; National Panels: Banking and Secured Transactions); • International Centre for Dispute Resolution (AAA International Panel); • CPR International Institute for Conflict Prevention and Resolution (Distinguished Neutrals; National Panels: Accounting, Banking, Energy and Financial Services Panel); • National Association of Distinguished Neutrals; and • Ad-hoc.
I received my first training in 1989. The arbitration training was with AAA and mediation training from the Association of Attorney Mediators. Recent training has been through my participation as an attendee and presenter a large variety of continuing education and training sponsored by AAA and CPR and other commercial associations in the energy industry, including: . See the following: Online Zoom Mediation Training (CPR 2020); ABA Zoom Webinar (2020); AAA Exercising Arbitrator Discretion: A Look at Some Best Practices ACE11, 2015; AAA Course: Arbitrator Discretion - A Look at Some Best Practices, 2015; ICDR International Symposium in Advanced Case Management Issues 2014; AAA Principled Deliberations: Decision-Making Skills for Arbitrators ACE08, 2014; 11th Annual ICDR Miami International Arbitration Conference-International Dispute Resolution in the Americas, 2013; Faculty, AAA Managing a Successful Arbitration, 2013; Faculty, AAA Managing the Arbitration Process for Efficiency & Economy Following the Preliminary Hearing, 2012; College of Commercial Arbitrators Annual Meeting, 2015, 2014, 2012, 2011, 2010, 2009, 2008; AAA Regaining Speed and Economy in Dispute Resolution, 2011; AAA Thirty Steps to a Better Arbitration, 2011; AAA, Efficient ADR - Saving the Client's Money Through Technology and Common Sense, 2010; AAA, ADR Strategies That Save Time and Money, 2010; AAA/ICDR Neutrals Conference, 2009; Juris Conference, Electronic Evidence and Disclosure International Arbitration, 2008; State Bar of Texas CLE, Alternative Dispute Resolution Texas Style, 2007; State Bar of Texas ADR Section, Legislative and Case Law Update, 2007; Houston Bar Association ADR Section, South Texas College of Law and Association of Attorney Mediators, Advanced Mediation Training: Communication Tools and Techniques, 2007; Faculty, AAA Dealing with Delay Tactics in Arbitration ACE04, 2006, 2005; AAA Neutrals Conference(2006, 2005, 2004, 2003).
RECENT PRESENTATIONS:
- “Disclosures, Dispositive Motions and Discovery Disputes in Arbitration,” HBA ADR Section (November 14, 2017).
- “AAA’s ACE 14: Red Flags and Risk Areas: Challenges to Arbitrator Authority,” Houston, Texas (October 25, 2017).
- “Emergency Arbitrations,” 17th Annual Meeting of the College Commercial Arbitrators, Minneapolis, MN (October 13, 2017).
- “Handling Your First (or Next) Arbitration,” State Bar of Texas CLE, Austin, Texas (December 6, 2013).
- “Managing a Successful Arbitration,” American Arbitration Association, College of Commercial Arbitrators and JAMS, New Orleans, Louisiana (March 14, 2013).
- “Managing the Arbitration Process for Efficiency and Economy Following the Preliminary Hearing,” American Arbitration Association University, ACE Course (August 23, 2012).
- “Mediated Settlement Agreements,” Advanced Mediation Training, AA White Dispute Resolution Center, University of Houston Law School (December 2011).
- “The Award” Managing Your First Arbitration,” AAA, CCA, JAMS and AA White Dispute Resolution Center, University of Houston Law School (November 2011).
- “The College of Commercial Arbitrator’s Protocols for Expectations, and Cost-Effective Commercial Arbitration: An Overview,” ADR Section, State Bar of Texas Annual Meeting (June 2011).
- “Arbitration Roundtable,” State Bar of Texas, ADR Counsel (February 28, 2010).
- “Review of Arbitration Awards for Mistakes of Law or Fact,” The Texas Lawyer, April 23, 2012.
- “Resolution of Domestic and International Bankruptcy Issues through Mediation,” Conflict Management, A Publication of the Committee on Alternative Dispute Resolution – American Bar Association, p. 19 (Summer 2005 – Volume 9, Issue 2).
- “ADR Basics,” Conflict Management, A Publication of the Committee on Alternative Dispute Resolution – American Bar Association, p. 16 (Summer 2004 – Volume 8, Issue 3).
- “Mediation of a Bankruptcy Case,” American Bankruptcy Institute Journal, p. 12 (May 2003).
- “Helping Attorneys See Beyond the Case: Return to Objectivity,” Alternative Resolutions2, p. 13 (November 2002).
- “Alternative Dispute Resolution with the Resolution Trust Corporation and the Federal Deposit Insurance Corporation,” 9 The Practical Real Estate Lawyer, p. 27 (May 1993).
YES. SUPREME COURT OF THE STATE OF TEXAS; STATE OF TEXAS BAR ASSOCIATION; ABA/AAA
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