March 23, 2011

Will Judicial Partisanship Impact Healthcare’s Constitutionality?

The four federal district judges who have ruled thus far on the constitutionality of the Obama health care law were split along party lines—with two Democratic appointees upholding the law and two Republican appointees declaring it unconstitutional. The Florida decision striking down the law will be appealed to the Eleventh Circuit, which is currently composed of 9 Republican appointees and 7 Democratic appointees. Two Virginia decisions, which came out opposite ways, will be reviewed by the Fourth Circuit—a 17-judge court with 9 Democratic appointees. And the Michigan decision upholding the law will proceed to the Sixth Circuit, which has 19 Republican appointees and 10 Democratic appointees. But all these numbers include senior circuit judges—who occasionally sit on 3-judge panels and almost never sit en banc—thus making any prediction based on party lines sheer conjecture.

The picture in the Supreme Court is equally murky, despite its current makeup of 5 Republican appointees and 4 Democratic appointees. In a recent editorial in the New York Times, Professor Laurence Tribe opined that the constitutionality of the health care law “is not one of those novel, one-off issues, like the outcome of the 2000 presidential election,” but instead turns on the Court’s historically broad interpretation of the Commerce Clause. In Professor Tribe’s view, Justices Scalia and Kennedy are likely to back an expansive view of the Commerce Clause to uphold the controversial mandatory insurance provision in the law, and only Justice Thomas can be counted as a likely vote against the law. If Professor Tribe is right, the healthcare law may garner enough votes to pass constitutional muster—even if Justice Kagen recuses herself based on her previous role in the Obama administration. But we’re likely not to know until the 2011-12 term, at the earliest.

May 20, 2010

Levinger PC Founder Named One of North Texas’ Top Business Defense Attorneys

DALLAS – Attorney Jeffrey Levinger, a founder of the Dallas appellate boutique Levenger PC, has been named one of North Texas’ top business defense attorneys. Mr. Levinger is one of 15 attorneys profiled in “The Defenders,” a special section published in the May 14 edition of the Dallas Business Journal.
To compile “The Defenders” list, Dallas Business Journal editors solicited nominations from across Dallas/Fort Worth in search of attorneys whose reputations and track records put them among the area’s top defense attorneys for corporate clients.

Mr. Levinger provides clients with more than 25 years of appellate and trial experience. The former head of the appellate practice group at Carrington, Coleman, Sloman & Blumenthal, L.L.P., Mr. Levinger currently serves as Chairman of the State Bar of Texas Committee on Pattern Jury Charges (Malpractice, Premises, and Products) and is an officer of the State Bar of Texas Appellate Section. He has been recognized among Texas’ top lawyers each year since the Texas Super Lawyers list first was published in 2003, and he also has repeatedly been named to lists of the Top 100 attorneys in both the Dallas-Fort Worth area (2005-2010) and throughout the state of Texas (2007 and 2009).

In his Q&A with the DBJ, Mr. Levinger said he decided to become a lawyer after he interned with the South
Dakota Legislature and saw that the best legislators all were lawyers.

“Law struck me as a profession that would open doors and sharpen my analytical thinking, and I could not have been more correct,” he says. “Every year I try to write stronger briefs, to present more persuasive oral arguments, and to provide better professional advice than the year before. And I’m constantly striving to build practice areas that interest me and in which I can make a difference.”

December 30, 2011 in Case Summaries

Fifth Circuit Reverses Declaratory Judgment That Had Allowed Landowner to Build a Railroad Spur Over a Pipeline Easement.

Jeff Levinger represented Flint Hills Resources in its appeal seeking to overturn a federal district court’s declaratory judgment allowing Travis County to build a railroad spur over Flint Hills’ pipeline easement.  Relying on an infrequently invoked Texas statute and the language of the easement, the Fifth Circuit reversed and held that the County could not build the spur over the easement unless it first pays Flint Hills for the substantial costs of fortifying the pipeline and relocating it to a greater depth.  Travis County, Texas v. Flint Hills Resources, L.P., 456 Fed. Appx. 410, 2011 WL 6934492 (5th Cir. Dec. 30, 2011).

Courts:  Federal Courts of Appeals

Subject Matter:  Oil & Gas/Real Estate

March 20, 2012 in Case Summaries

Fifth Circuit Breathes New Life Into € 136 Million Fraudulent Transfer Action Brought by Bankruptcy Litigation Trustee.

Jeff Levinger was retained to appeal a federal district court’s dismissal of a € 136 million fraudulent transfer action brought by MC Asset Recovery, a bankruptcy litigation trustee of Mirant Corporation, against a group of European lenders.  The district court had dismissed the case after deciding that the applicable fraudulent transfer law was supplied by Georgia, which did not allow for the avoidance of the guaranty transaction at issue.  On appeal, Levinger persuaded the Fifth Circuit that controlling choice-of-law principles required the application of New York law rather than Georgia law.  The Court also rejected the lenders’ argument that MC Asset Recovery lacked standing to sue because the creditors of Mirant purportedly had been paid in full.  Based on these rulings, the Fifth Circuit remanded the case to be decided on the merits of the New York fraudulent transfer statute.  MC Asset Recovery LLC v. Commerzbank A.G., 675 F.3d 530 (5th Cir. 2012).

Courts:  Federal Courts of Appeals

Subject Matter:  Procedural and Evidentiary Issues; Bankruptcy

August 31, 2012 in Case Summaries

Texas Supreme Court Finds Sufficient Evidence of Negligence But Remands for New Trial in Brake-Failure Case.

Jeff Levinger was retained to prepare the response brief on the merits on behalf of Talmadge Waldrip, who was catastrophically injured when a 26-foot U-Haul rental truck rolled over him after its parking brake failed.  The Supreme Court found that the evidence was sufficient to support the jury’s findings of negligence on the part of both U-Haul International and U-Haul of Texas.  Nevertheless, it remanded the case for a new trial based on the admission of evidence that other U-Haul trucks in Canada had experienced mechanical failures.  Over the dissent of Justice Lehrmann, the Court held that the evidence of the Canadian defects was not sufficiently similar to the defect in the truck at issue, and that the admission of the evidence was harmful.  U-Haul Intern. Inc. v. Waldrip, ___ S.W.3d ___, 2012 WL 3800220 (Tex. Aug. 31, 2012).

Courts:  Texas Supreme Court

Subject Matter:  Products Liability & Personal Injury

August 24, 2012 in Case Summaries

Judgment in Favor of Quadruple Amputee Victim of Medical Malpractice Affirmed on Appeal.

Working with well-known personal injury attorneys Windle Turley and Linda Turley, Jeff Levinger secured the affirmance of a $5.3 million medical malpractice judgment in favor of David Fritzgerald against an infectious disease specialist.  Mr. Fritzgerald had lost all four of his limbs following hernia surgery when a MRSA infection invaded his body and was not timely treated with the appropriate antibiotic therapy.  On appeal, the Dallas court of appeals held that the evidence was sufficient to support the jury’s finding of causation as well as its refusal to assign responsibility to various settling parties.  Although the court remanded the case for recalculation of the future medical expenses, the parties subsequently settled before the remanded proceeding occurred.  Prabhakar v. Fritzgerald, ___ S.W.3d ___, 2012 WL 3667400 (Tex. App. ‑‑ Dallas Aug. 24, 2012, no pet.).