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Texas Supreme Court rules in tortious intereference case that “reasonable certainty” requirement for lost profits applies to claims for “lost market value”

In a recent business litigation case, the Texas Supreme Court affirmed that lost profits may only be recovered when the amount can be proven with reasonable certainty, even when the damages sought are for the “market value” of an investment, as determined by lost profits.

In Phillips v. Carlton Energy Group, LLC, Carlton sued entrepreneur Gene Phillips and other entities, alleging tortious interference with the company’s attempt to invest in an unproven methane exploration project in Bulgaria. Carlton sought the lost “market value” of its interest in the venture, and an expert witness testified that the fair market value of the investment ranged from $12.54 million to $11.305 billion, under three different models of damages. The jury found for Carlton and awarded actual damages of $66.5 million and exemplary damages of $8.5 million.

The First District Court of Appeals in Houston upheld the jury’s award on appeal. However, the Texas Supreme Court unanimously reversed the damages award, ruling that there was no evidence that the amount was based on objective facts from which the amount of lost profits could be determined. The court stated that while the requirement of “reasonable certainty” clearly applies when the damages sought are the lost profits themselves, it had not previously made clear that the standard also applies when lost profits are used instead to ascertain the market value of property. However, the court ruled that the reasonable certainty standard “clearly must” apply in such a case as well.

Nineteen-year employee of Texas firm files lawsuit over alleged FMLA violation

A Texas worker filed a lawsuit against his employer alleging violations of employment law dating to 2014.

Bradford Thompson brought a complaint in the U.S. District Court for the Southern District of Texas, Houston Division, against Total Petrochemicals and Refining USA Inc. The lawsuit, filed on May 6, claimed violation of the Family and Medical Leave Act (FMLA) in 2014 and 2015.

The lawsuit alleged that Thompson has been employed by Total Petrochemicals for more than 19 years and required extensive medical leave in 2014 due to two separate instances of surgery and hospitalization. Thompson claimed that his need for FMLA leave was clearly communicated to his employer. He first suffered a ruptured appendix and later had complications following cataract surgery.

According to his lawsuit, Thompson did not exceed his allotted FMLA leave. After returning to work in March 2015, Thompson claimed that he was put on notice for unsatisfactory work performance and was given a negative work assessment, most of which he was not allowed to see.

Thompson claims that after he argued that he was being criticized on a pretext and that his employer was retaliating against him, he was denied a raise. Thompson claims loss of wages and benefits, emotional distress and damage to future employment prospects. The lawsuit seeks declaratory relief, back and front pay, other damages and attorney’s fees and costs.

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