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Messrs. Homer S. [299 U.S. 248, 249] Cummings, Atty. Gen., Stanley F. Reed, Sol. Gen., of Washington, D.C., and Robert H. Jackson, Asst. Atty. Gen., for petitioners.
Respondents, nonregistered holding companies, brought suit in the District Court for the District of Columbia to enjoin enforcement of the Public Utility Holding Company Act of 1935 (chapter 687, 49 Stat. 803 (15 U.S.C.A. 79 et seq.)) on the ground that the Act in its entirety is unconstitutional and void. The complaint in No. 221 (the suit by the North American Company) was filed November 26, 1935; the complaint in No. 222 ( the suit by the American Water Works & Electric Company) was filed the next day. By concession the two plaintiffs are holding companies within the meaning of the Act, and must register thereunder if the Act is valid as to them. One plaintiff, the North American Company, is at the apex of a pyramid which includes subsidiary holding companies as well as [299 U.S. 248, 250] subsidiary operating companies, these last being engaged as public utilities in supplying gas and electricity to consumers in different states. The other plaintiff, American Water Works & Electric Company, is at the apex of another pyramid including like subsidiaries. The defendants in both suits (petitioners in this court) are the members of the Securities and Exchange Commission, the Attorney General of the United States, and the Postmaster General.
On December 7, 1935, the Attorney General filed a notice of motion in behalf of the petitioners for a stay of proceedings in Nos. 221 and 222, pending at that time in the District of Columbia. The petitioners had not yet submitted their answer to the bills, but their position as supporters of the statute in its application to respondents was made abundantly apparent. By the notice of motion it was shown that other suits to restrain the enforcement of the Act had been filed by other plaintiffs in the District of Columbia, and many more in other districts. The Government professed its anxiety to secure an early [299 U.S. 248, 251] determination of its rights, and to that end pledged itself to proceed with all due diligence to prosecute the suit which it had chosen as a test. There were representations that the trial of a multitude of suits would have a tendency 'to clog the courts, overtax the facilities of the Government, and make against that orderly and economical disposition of the controversy that is the Government's aim.' Accordingly the court was asked to stay proceedings in the suits at bar 'until the validity of said Act has been determined by the Supreme Court of the United States' in the Electric Bond & Share case, 'or until that case is otherwise terminated.' To that motion the plaintiffs filed an answer on December 12, 1935, contesting the power of the court to grant the requested stay, asserting that the questions to be passed upon in their suits were not identical with the questions presented in the test one, pointing out that the Act even if valid as applied to some companies, might be invalid as applied to others, and dwelling upon the loss that they were suffering day by day while the menace of the Act obstructed their business and cast a cloud on its legality.
Upon the argument of the motion the Attorney General and the Securities and Exchange Commission announced that until the validity of the Act had been determined by this court in a civil suit which would be diligently prosecuted, neither the Attorney General nor the Commission would seek to enforce the criminal penalties of the Act, and that even after such determination they would not seek to exact penalties for earlier offenses. Written notice to that effect was given to all prosecuting officers. At the same time the Postmaster General announced that even if he had authority, he would not exclude any company from using the mails because of any violation of the Act pending the judicial determination of its validity by this court. Also, the Commission issued a regulation permitting a holding company, when register- [299 U.S. 248, 252] ing, to reserve any legal or constitutional right and to stipulate that its registration should be void and of no effect in the event that such a reservation should be adjudged invalid or ineffective. Finally, the Attorney General offered to submit to a temporary injunction restraining the enforcement of the Act until the Electric Bond & Share case should be determined by this court. On the other side, the plaintiffs offered to consolidate their cases and thus dispose of them as one. They also offered, as we were informed upon the argument, to select a group of suits, not more than three or four, to be tried at the same time, with the understanding that any others would then be held in abeyance. These offers were rejected, and the Government stood upon its motion.
How many suits for like relief were pending in the same and other districts was the subject of oral representations when the motion was submitted. By consent, however, an affidavit by the Attorney General was afterwards supplied with a stipulation of counsel supplementary thereto. The affidavit and stipulation were accepted by the Court, and give precision to representations that would otherwise be vague. From the affidavit it appeared that, in addition to the suits at bar, forty-seven suits had been brought in thirteen districts, five of them, afterwards reduced to four, in the District of Columbia, the others elsewhere. From the stipulation it appeared, however, that none of the cases in other districts would be heard or determined on the merits. The bills were to be dismissed or process was to be quashed in so far as relief was demanded against any officials who are parties to the present suits, and this for the reason that as to all such defendants the venue was improper. In a few suits there were to be decrees pro confesso against local officials who had been instructed by the Attorney General not to offer a defense. The number of pending suits was thus reduced to those in the District of Columbia, though there [299 U.S. 248, 253] was a possibility, more or less uncertain, that there would be a renewal in that district of the suits begun elsewhere and discontinued or dismissed. Along with the affidavit and stipulation the Government submitted a copy of the complaint and the cross-bill in the suit against the Bond & Share Company.
Upon this showing the District Judge reached the conclusion that the motion should be granted, stating his reasons in an opinion. 'A decision,' he said, 'by the Supreme Court in the Electric Bond and Share case, even if it should not dispose of all the questions involved, would certainly narrow the issues in the pending cases and assist in the determination of the questions of law involved.' However, the granting of the motion would be conditioned upon diligent and active prosecution of the Government's suit. An order was made on January 9, 1936, staying all proceedings upon the terms and conditions stated in the opinion. From that order the Court of Appeals for the District of Columbia allowed a special appeal, which was heard in April, 1936 (four judges sitting), and decided in June. There were three opinions: An opinion by Mr. Justice Van Orsdel, concurred in by the Chief Justice; a separate opinion by Mr. Justice Groner; and a dissenting opinion by Mr. Justice Stephens. 85 F. (2d) 398, 400. The first opinion states the question before the court to be whether or not the District Court had 'abused its discretionary power in the control of its docket.' Standing alone, this statement would seem to concede that there was power, the inquiry being merely whether the power had been discreetly exercised. The concession, if made, was speedily withdrawn. A few sentences later we are told that the power is confined to cases where the issues and the parties are the same. The separate opinion of Groner, J., treats the subject with greater flexibility. He suggests that after joinder of issue there may be a postponement of the trial if the court [299 U.S. 248, 254] in the control of its own docket shall find that course expedient. He couples this with a statement that a stay so indefinite as the one before him would be too broad in any case. None the less, much latitude of judgment would have been left to the trial judge if the standards of that opinion had been adopted as a guide. But plainly they were not. The order of the Court of Appeals in each of the two suits reverses the stay order and remands the cause 'for further proceedings not inconsistent with the opinion of this court.' Evidently the trial judge was expected to conform to doctrine expounded for his instruction in the course of an opinion, yet he would have difficulty in knowing which opinion to select. He might believe that comity or deference constrained him to submit to the opinion approved by two members of the reviewing court, since none had been accepted by the vote of a majority. At the very least there was a likelihood, and indeed almost a certainty, of confusion and embarrassment. In such circumstances the call is plain for a decision that will mark with greater clearness the bounds of power and discretion. We granted certiorari that this result might be attained.
Viewing the problem as one of power, and of power only, we find ourselves unable to assent to the suggestion that before proceedings in one suit may be stayed to abide the proceedings in another, the parties to the two causes must be shown to be the same and the issues identical. Indeed, counsel for the respondents, if we understand his argument aright, is at one with us in that regard, whatever may have been his attitude at the hearing in the courts below. Apart, however, from any concession, the power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must [299 U.S. 248, 255] weigh competing interests and maintain an even balance. Kansas City Southern R. Co. v. United States, 282 U.S. 760, 763 , 51 S.Ct. 304, 305, 306; Enelow v. New York Life Ins. Co., 293 U.S. 379, 382 , 55 S.Ct. 310, 311. True, the suppliant for a stay must make out a clear case of hardship or inequity in being required to go forward, if there is even a fair possibility that the stay for which he prays will work damage to some one else. Only in rare circumstances will a litigant in one cause be compelled to stand aside while a litigant in another settles the rule of law that will define the rights of both. Considerations such as these, however, are counsels of moderation rather than limitations upon power. There are indeed opinions, though none of them in this court, that give color to a stricter rule. Impressed with the likelihood or danger of abuse, some courts have stated broadly that, irrespective of particular conditions, there is no power by a stay to compel an unwilling litigant to wait upon the outcome of a controversy to which he is a stranger. Dolbeer v. Stout, 139 N.Y. 486, 489, 34 N.E. 1102; Rosenberg v. Slotchin, 181 App.Div. 137, 138, 168 N.Y.S. 101; cf. Wadleigh v. Veazie, Fed.Cas.No.17,031; Checker Cab Mfg. Co. v. Checker Taxi Co. (D. C.) 26 F.(2d) 752; Jefferson Standard Life Ins. Co. v. Keeton (C.C.A.) 292 F. 53. Such a formula, as we view it, is too mechanical and narrow. Kansas City Southern R. Co. v. United States, supra; Friedman v. Harrington (C.C.) 56 F. 860; Amos v. Chadwick, L.R. 9 Ch.Div. 459; L.R. 4 Ch.Div. 869, 872. All the cases advancing it could have been adequately disposed of on the ground that discretion was abused by a stay of indefinite duration in the absence of a pressing need. If they stand for more than this, we are unwilling to accept them. Occasions may arise when it would be 'a scandal to the administration of justice' in the phrase of Jessel, M.R. (Amos v. Chadwick, L.R. 9 Ch.Div. 459, 462), if power to coordinate the business of the court efficiently and sensibly were lacking altogether. [299 U.S. 248, 256] We must be on our guard against depriving the processes of justice of their suppleness of adaptation to varying conditions. Especially in cases of extraordinary public moment, the individual may be required to submit to delay not immoderate in extent and not oppressive in its consequences if the public welfare or convenience will thereby be promoted. In these Holding Company Act cases great issues are involved, great in their complexity, great in their significance. On the facts there will be need for the minute investigation of intercorporate relations, linked in a web of baffling intricacy. On the law there will be novel problems of far- reaching importance to the parties and the public. An application for a stay in suits so weighty and unusual will not always fit within the mould appropriate to an application for such relief in a suit upon a bill of goods. True, a decision in the cause then pending in New York may not settle every question of fact and law in suits by other companies, but in all likelihood it will settle many and simplify them all. Even so, the burden of making out the justice and wisdom of a departure from the beaten track lay heavily on the petitioners, suppliants for relief, and discretion was abused if the stay was not kept within the bounds of moderation.
We are satisfied that the limits of a fair discretion are exceeded in so far as the stay is to continue in effect after the decision by the District Court in the suit against the Bond & Share Company, and until the determination by this court of any appeal therefrom. Already the proceedings in the District Court have continued more than a year. With the possibility of an intermediate appeal to the Circuit Court of Appeals, a second year or even more may go by before this court will be able to pass upon the Act. Whether the stay would have been proper if more narrowly confined will be considered later on. For the moment we fix the uttermost limit as the date of the first [299 U.S. 248, 257] decision in the suit selected as a test, laying to one side the question whether it should even go so far. How the District Court in New York will decide the issues in that case is not to be predicted now. The Act may be held valid altogether, or valid in parts and invalid in others, or void in its entirety. Whatever the decision, the respondents are to be stayed by the terms of the challenged order until this court has had its say. They are not even at liberty, in case of an adjudication of partial invalidity, to bring themselves within the class adjudged to be exempt, though their membership in such a class may be uncertain or contested. Relief so drastic and unusual overpasses the limits of any reasonable need, at least upon the showing made when the motion was submitted.
We think the answer is inadequate that in the contingencies suggested the respondents will be at liberty to move to vacate the stay, and will prevail upon that motion if they can satisfy the court that its restraints are then oppressive. To drive them to that course is to make them shoulder a burden that should be carried by the Government. The stay is immoderate and hence unlawful unless so framed in its inception that its force will be spent within reasonable limits, so far at least as they are susceptible of prevision and description. When once those limits have been reached, the fetters should fall off. To put the thought in other words, an order which is to continue by its terms for an immoderate stretch of time is not to be upheld as moderate because conceivably the court that made it may be persuaded at a later time to undo what it has done. Disapproval of the very terms that have already been approved as reasonable is at best a doubtful outcome of an application for revision. If a sceond stay is necessary during the course of an appeal, the petitioners must bear the burden, when that stage shall have arrived, of making obvious the need. Enough for present purposes that they have not done so yet. [299 U.S. 248, 258] From the stay in its operation during the course of an appeal, we pass to the stay in its operation while the test suit is undetermined. That aspect of the order is subject to separate considerations and calls for separate treatment. The Government contends that a stay thus limited in duration is not unreasonably long, and that the respondents have been sufficiently protected against substantial loss or prejudice. The respondents deny that this is so, and insist that loss or prejudice, substantial in degree, is possible and even probable. We do not find it necessary to determine whether a stay to continue until the decision by the District Judge, and then ending automatically, would be moderate or excessive if viewed as of the time when the order differently conditioned was placed upon the files. Almost a year has gone by since the entry of that order, and in the intervening months many things have happened. All the parties have united in bringing these happenings to our notice and in inviting us to consider them. In the suit against the Bond & Share Company the facts have now been settled by stipulation; the briefs have been prepared; the case has been argued on the merits; and a decision may be expected within a reasonable time. With these happenings disclosed a decision by this court, if directed to the fairness of the stay order as of the date of its entry and if based upon a record made up substantially a year ago, would have little relation to present day realities. 'This court is a court of review and limits the exercise of its jurisdiction in accordance with its function.' AEro Mayflower Transit Co. v. Georgia Public Service Commission, 295 U.S. 285, 294 , 55 S.Ct. 709, 713. To bring about a fitting correspondence between rulings and realities, there must be a new appraisal of the facts by the court whose function it is to exercise discretion, and an appraisal in the light of the situation existing and developed at the time of the rehearing. Patterson v. Alabama, 294 U.S. 600, 607 , 55 S.Ct. 575, 578; Watts, Watts [299 U.S. 248, 259] & Co. v. Unione Austriaca, 248 U.S. 9, 21 , 39 S.Ct. 1, 3 A.L. R. 323. Benefit and hardship will be set off, the one against the other, and upon an ascertainment of the balance discretionary judgment will be exercised anew.

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§ 98-3 Plotting of properties and assignment of numbers.
§ 98-5 Display of numbers.
§ 98-6 Copies of map.
§ 98-7 Application for street number.
§ 98-8 Lots resulting from subdivision or resubdivision of land.
§ 98-9 Subdivision approval contingent on assignment of numbers.
§ 98-10 Issuance of certificates of occupancy.
The purpose of this chapter shall be to require a clear display of house numbers from public streets, for all properties that contain principal buildings within the City of Bridgeton in order to assist the general public or the authorities in identifying any property in case of an emergency, as well as for the welfare of the general public in conducting their normal affairs, pursuant to N.J.S.A. 40:67-1 et seq.
Includes all houses, dwellings, apartment buildings, stores and business places, in the City of Bridgeton.
The City Engineer shall plot upon the Tax Maps of the City all of the properties which now or shall hereinafter front upon any street and designate and assign a number therefor in compliance with the numbering system prescribed in § 98-4 of this chapter.
All even numbers shall be on the southerly and westerly side of said streets. All odd numbers shall be on the northerly and easterly side of said streets.
On all streets running north and south, the numbers shall begin at the southerly end and run north. On all streets running east and west, east of Cohansey River, the numbers shall begin at the westerly end and run east. On all streets running east and west, west of the Cohansey River, the numbers shall begin at the easterly end and run west.
All buildings now or hereinafter erected within the City shall bear, in figures, the street number assigned to said building on the Tax Map of the City of Bridgeton. Such figure shall be displayed by the owner or occupant on the front of the building or in the front yard in numbers at least three inches in height, at or near the front entrance to the building and so located as to be visible to persons passing by the building or premises on the abutting street. All numbers shall be Arabic numerals.
The Municipal Engineer, upon the completion of the plotting upon the Tax Map of the City of Bridgeton, shall provide a copy of said map to the Municipal Clerk and the Division of Housing and Code Enforcement.
Every owner or occupant of said land shall apply to the Division of Housing and Code Enforcement who shall furnish them with the correct street number assigned thereto.
Upon any subdivision or resubdivision of land in the City resulting in a lot or lots other than those delineated on said Map, the Municipal Engineer shall assign a number to each lot resulting from subdivision which shall be in proper numerical sequence in relation to the number assigned to the other lots fronting on the same street, and he shall record the same upon the said map within 10 days of the filing of the approval given for such subdivision or resubdivision of land.
No subdivision or resubdivision of land, major or minor, requiring approval by the Planning Board shall be approved by it unless a number shall be assigned by the Municipal Engineer to each lot therein for the building erected or to be erected on it.
No certificate of occupancy shall be issued by the Division of Housing and Code Enforcement or anyone in the Division for occupancy of any building unless the provisions of this chapter shall have been complied with.
The occupant or owner of any house, dwelling, apartment building, store or business place, who shall fail to comply with the provisions of this chapter within 30 days, after written notice of the number assigned to such house, dwelling, apartment building, store business place, shall upon conviction thereof, be punished as provided in Chapter 1, Article III, General Penalty. A separate offense shall be deemed to be committed each day or days during which a violation occurs or continues.


text:
Messrs. Halleck F. Rose, J. W. Deweese, and Frank E. Bishop for plaintiffs in error.
This writ of error is prosecuted to secure the reversal of a judgment of the supreme court of the state of Nebraska, [206 U.S. 158, 163] affirming one entered by a court of Seward county, in that state, upon a verdict of a jury awarding damages against the defendants below, plaintiffs in error here, because of certain acts charged to have been done by them as officers and directors of the Capital National Bank of Lincoln, Nebraska.
We briefly summarize a statement contained in the opinion of the court below concerning a prior action between the same parties. That action, and three others of like character, brought by different plaintiffs, were begun in a county different from that in which the present one was commenced, and recovery was sought, with one exception, from those who were defendants below in this case, of the sum of a loss occasioned by the insolvency and suspension of the Capital National Bank, a corporation organized under the national bank act. The actions referred to were removed into a circuit court of the United States, and in each a motion to remand was overruled, and in one of the cases (brought by Thomas Bailey) the circuit court sustained a demurrer to the petition and dismissed the cause, and the judgment so doing was affirmed by the circuit court of appeals. 11 C. C. A. 304, 27 U. S. App. 339, 63 Fed. 488. The plaintiffs in the other cases thereupon dismissed their actions and commenced new ones, as also did Bailey, in Seward county, of which the case before us is one. The same persons who were impleaded in the prior actions were made defendants, and in two of the actions one Thompson, a director of the bank, who had not been previously sued, was joined as a defendant. The defendants were sought to be made liable for acts done as officers and directors of the Capital National Bank, although it was not expressly alleged that the bank was organized under the national bank act. Reliance in each action was placed upon alleged untrue written and oral statements and representations of the financial condition of the bank, alleged to have been made and published by the defendants, which were fully set out in various forms of expression, but in none of the averments was it specifically asserted that the acts in question were done in consequence of and in com- [206 U.S. 158, 164] pliance with the provisions of the national bank act, although the exhibits attached to the petition disclosed the character of the written reports, which were in part relied upon. The state court overruled an application to remove, and, a transcript of the record having been filed in the circuit court, on motion the action was, by that court, remanded to the state court, upon the ground that the petition was 'clearly based, not upon the provisions of the national banking act, but upon the liability claimed to arise under the principles of the common law.' See Bailey v. Mosher, 74 Fed. 15.
An amended petition was filed, changing somewhat the averments originally made, and supplementing the same by new allegations. After a considerable lapse of time a second amended petition was filed. This latter enumerated many acts of negligence and mismanagement in the conduct of the affairs of the failed bank charged to have caused its insolvency, in addition to the averments which had been made in the original petition. The defendants demurred on the ground of want of jurisdiction, because the result of the pleading as amended was to demonstrate that the whole cause of action relied upon was based upon the violation by the defendants of provisions of the national bank act, and because, under that act, no cause of action in favor of the plaintiff was stated. The day the demurrer was filed the action was removed by the defendants to the circuit court of the United States. That court overruled a motion to remand (see Bailey v. Mosher, 95 Fed. 223), and subsequently the court sustained the demurrer and dismissed the action. Reviewing the action of the circuit court, however, the circuit court of appeals held that in any event the removal had been made too late, 'and that the judgment of the lower court dismissing the plaintiff's case was rendered without lawful jurisdiction over the case.' 46 C. C. A. 471, 107 Fed. 561. As a result the case went back to the state court, and in that court the demurrer to the second amended petition was argued and overruled.
Matter alleged to constitute an estoppel against the further prosecution of the action, and to operate as a bar to recovery, [206 U.S. 158, 166] was set up in special defenses, which need not, however, be further noticed.
The cause was put at issue. Before the trial three of the defendants- Walsh, Hamer, and Phillips-died, and the action was revived against the administrator of Walsh and Hamer, but was not prosecuted further against the estate of Phillips. The companion actions brought by different plaintiffs were tried with the case at bar by a jury, and there was verdict against all the defendants then before the court, upon which judgment was entered except as to the administrator of Walsh, in whose favor judgment was entered by the court upon special findings as to him made by the jury. After the correction of an error in the amount of the judgment the case was taken to the supreme court of Nebraska, where the judgment was affirmed. 105 N. W. 287. This writ of error was then sued out, apparently on behalf of all the defendants. We assume, however, that Charles W. Mosher and R. C. Outcalt, two of the defendants below, have abandoned the prosecution of the writ. We so assume because no cost bond appears to have been furnished by either; because neither has appeared at the bar by counsel and no brief in their behalf has been filed, and, on the contrary, in the brief of the defendants in error it is stated that the persons named did not prosecute error, which we take to mean that the parties referred to have abandoned in this court the prosecution of the writ of error which was sued out in their names, and because the bill of exceptions does not contain the answers of those defendants nor the evidence relating to their case, which would be pertinent to consider if we were called upon to determine whether prejudicial error was committed as to them. None of the remaining plaintiffs in error were officers of the bank, and they were sued simply for acts done as directors thereof. [206 U.S. 158, 167] A motion to dismiss first requires attention. The asserted want of jurisdiction in this court in based upon the contention that no Federal question was raised in or decided by the state court. But, as will hereafter appear, the record plainly shows that both in the trial and appellate courts an immunity was claimed under 5239 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 3515), at least in respect to the rule of liability applied below, and such immunity was expressly denied by the state court, and there is, therefore, jurisdiction, even if, in other respects, jurisdiction might not be exercised, as to which we are not called upon to decide. Schlemmer v. Buffalo, R. & P. R. Co. 205 U.S. 1 , 51 L. ed. 681, 27 Sup. Ct. Rep. 407; Tullock v. Mulvane, 184 U.S. 497 , 46 L. ed. 657, 22 Sup. Ct. Rep. 372; Metropolitan Nat. Bank v. Claggett, 141 U.S. 520 , 35 L. ed. 841, 12 Sup. Ct. Rep. 60; Logan County Nat. Bank v. Townsend, 139 U.S. 67 , 35 L. ed. 107, 11 Sup. Ct. Rep. 496.
'7. The court has erred in deciding that the fact that those plaintiffs in error who were directors were without knowledge of any falsity of the reports attested by them or some of them, mentioned in the petition, was immaterial, and that such directors or any of them were liable under the proofs showing that they were without knowledge of the falsity of such reports; the said decision is in violation of the provisions of 5239 of the Revised Statutes of the United States, which makes liability of the directors dependent upon the fact that they knowingly violated or knowingly permitted the violation of the provisions of the national banking act, and participated in or assented to such violation.
'Bank officers and directors who make or participate in a published report of the financial condition of the banks of which they are such officers and directors may become liable for damages sustained by one depositing money in such bank in reliance upon the false representation of the condition of the bank contained in the report, even though such director of officer did not know that his report so published was in fact false or untrue.
'The director of a bank who publishes or participates in the publication of a report of its condition, by such act asserts that the statements contained in such report are substantially true, and he cannot rely upon his ignorance of the true condition of the bank as a defense to an action, when he, in such published reports, represents the bank to be solvent, if in truth it is not solvent and its assets are fictitious or worthless or its liabilities so much greater than its assets as to render the bank insolvent.
'The petitions show misfeasance and mismanagement on the part of the defendants, as officers of the bank, and that the bank thereby sustained damages, but they show more than that. They show that the defendants made and published false and misleading statements concerning the financial condition of the bank, whereby the plaintiffs were induced to become and remain its creditors, to their damage. In short, whatever other allegation may be contained in the petition, they also contain sufficient to constitute a common-law action for deceit. That the party upon whom the deceit or imposition was practised by the officers of a national bank may maintain an action against them in his own name and behalf for damages resulting to him thereform, and that his right of [206 U.S. 158, 170] action does not rest on the Federal statutes, but the common law, is no longer an open question.
'The defendants in the present suit, who, as directors, attested the reports made by the Capital National Bank to the Comptroller of the Currency, by such act vouched for, or certified to, the absolute truthfulness of the statements therein contained, and not that the report was correct so far as the directors knew or had been advised by the proper performance of their duties as directors. The means of information, this record shows, were accessible to them. It was their duty to know whether the reports were correct or not.
By 24 of the national bank act of February 25, 1863 (chap. 58, 12 Stat. at L. 665, 671), each association was required to make and forward to the Comptroller of the Currency quarterly reports, containing 'a true statement of the condition of the association making such report,' in respect to enumerated items, and it was provided that such report 'shall be verified by the oath or affirmation of the president and cashier, and all wilful false swearing in respect to such report shall be perjury, and subject to the punishment prescribed by law for such offense.' It was made the duty of the Comptroller to publish full abstracts of such reports, as to specified items, in newspapers printed in the cities of Washington and New York, 'and a separated report of each association' was required to be published, at the expense of the association, in a newspaper [206 U.S. 158, 173] published in the place where such association was established. Associations located in a number of the leading cities were also required to publish, in a newspaper published where the association was located, a statement, under the oath of the president or cashier, of the condition of the association, showing the average amount of loans and discounts, specie, deposits, and circulation. By 45 the cashier of each association was required after each dividend to make, under oath, 'a full, clear, and accurate statement of the condition of the association,' sociation,' enumerating specified particulars, which statement was to be forthwith transmitted to the Comptroller of the Currency. The national bank act of June 3, 1864 (chap. 106, 13 Stat. at L. 109), substantially reenacted, in a much condensed form, the requirements as to quarterly reports of the financial condition of each association. The abstract of such reports was required, however, to be published by the Comptroller only in the city of Washington, and every association was required to make a monthly statement of its condition under the oath of the president or cashier. For each day after five days' delay in making a report each bank was made liable to a penalty of $100. The act of 1864 did not contain a requirement for the making and transmittal to the Comptroller of a statement following the declaration of a dividend.
By an act approved March 3, 1869 (chap. 130, 15 Stat. at L. 326, U. S. Comp. Stat. 1901, p. 3498), in lieu of the reports required by the national bank act of 1864, it was made the duty of each association, on the requisition of the Comptroller, to make not less than five reports in each year. These reports were not only required to be verified 'by the oath or affirmation of the president or cashier of such association,' but to be 'attested by the signature of at least three of the directors.' Publication of such reports was required to be made in a newspaper published in the place where the association was established, and a penalty of $100 for each day's delay after a specified time in making and transmitting the report was authorized to be retained by the Treasurer of the United States out of interest due the associa- [206 U.S. 158, 174] tion. Each association was also required to make a report, attested by the oath of its president or cashier, whthin ten days after the declaration of a dividend, stating the amount of each dividend and the amount of net earnings in excess of such dividends.
'Sec. 5239. If the directors of any national banking association shall knowingly violate, or knowingly permit any of the officers, agents, or servants of the association to violate, any of the provisions of this title, all the rights, privileges, and franchises of the association shall be thereby forfeited. Such violation shall, however, be determined and adjudged by a proper circuit, district, or territorial court of the United States, in a suit brought for that purpose by the Comptroller of the Currency, in his own name, before the association shall be declared dissolved. And in cases of such violation, every director who participated in or assented to the same shall be held liable in his personal and individual capacity for all damages which the association, its shareholders, or any other person, shall have sustained in consequence of such violation.' [206 U.S. 158, 176] As in the early acts relating to the national banks, so in the sections of the Revised Statutes on the same subject, there are many provisions specifically enjoining the doing or not doing of certain acts by the association or its officers. Thus, by 5137, Rev. Stat., U. S. Comp. Stat. 1901, p. 3460 (formerly 28 of the act of 1864), a national bank is prohibited from acquiring real estate for purposes other than those specified in the act, and is forbidden to hold real estate, under certain contingencies, more than a specified length of time; by 5200, Rev. Stat., U. S. Comp. Stat. 1901, p. 3494 (formerly 29 of the act of 1864), it is prohibited to loan to any person or corporation in excess of one tenth of the capital stock of a bank; by 5201, Rev. Stat., U. S. Comp. Stat. 1901, p. 3494 (formerly 35 of the act of 1864), banking associations are forbidden to loan or purchase their own stock; by 5202, Rev. Stat., U. S. Comp. Stat. 1901, p. 3494 (formerly 36 of the act of 1864), associations are forbidden to become indebted or become in any way liable exceeding the amount of their capital stock except on account of specified demands; by 5203, Rev. Stat., U. S. Comp. Stat. 1901, p. 3495 ( formerly section 37 of the act of 1864), a restriction is imposed upon the use of circulating notes; by 5204, Rev. Stat., U. S. Comp. Stat. 1901, p. 3495 (formerly 38 of the act of 1864), the withdrawal of the capital of an association while continuing its operations is forbidden, either in the form of dividends or otherwise; and 5206, Rev. Stat., U. S. Comp. Stat. 1901, p. 3496 (formerly 39 of the act of 1864), embodies a restriction upon the use of notes of other banks. In addition to these sections of course may be considered the various sections enjoining the making and publishing of periodical reports of the association, to which we have heretofore referred.
It thus becomes obvious that the national bank act imposes upon directors duties which would not rest upon them at common law, and that among such duties is the furnishing to the Comptroller of the Currency reports concerning the condition of the bank and the publication thereof. Although the statutory provisions subsequent to the act of 1863, relating to the making and publishing of such reports, do not, as did [206 U.S. 158, 177] the act of 1863, expressly require that the report, when made, should contain a 'true' statement of the condition of the association, yet, by necessary implication, such is the character of the statement required to be made, and by the like implication the making and publishing of a false report is prohibited.
And general considerations as to the spirit and intent of the national bank act (Easton v. Iowa, 188 U.S. 220 , 47 L. ed. 452, 23 Sup. Ct. Rep. 288; Davis v. Elmira Sav. Bank, 161 U.S. 275 , 40 L. ed. 700, 16 Sup. Ct. Rep. 502) also render necessary the conclusion that the measure of responsibility concerning the violation by directors of express commands of the national bank act is, in the nature of things, exclusively governed by the specific provisions on the subject contained in that act. Thus, a contrary conclusion would lead to a varying measure of responsibility in the several states in which the question of liability might arise, depending upon the conceptions of the state courts of last resort as to the meaning of the act of Congress imposing the duty. Hence, it would follow that the same provision of the statute might mean one thing in one state and a different thing in another. The confusion which would result is aptly illustrated by a review made by the supreme court of Ohio in the recent case of Mason v. Moore, 73 Ohio St. 275, 4 L.R.A. (N.S.) 597, 76 N. E. 932, of the conflicting state adjudications as to the [206 U.S. 158, 179] proper rule to be applied to fix the liability of bank directors to third persons in an action of deceit at common law. The frustration of the public policy embodied in the national bank system by the crippling of the usefulness of such institutions, which would result from holding that directors, in performing the duties imposed upon them by the national bank act, might be held liable civilly, not by the standard of conduct which the act provides for a violation of its express commands, but by another and different one, is apparent. Under such a conception it might well be that prudent and responsible persons would decline to assume the discharge of the duties imposed by the statute because of the hazard of an uncertain pecuniary liability which the statute imposing the duty did not contemplate.
The civil liability of national bank directors, then, in respect to the making and publishing of the official reports of the condition of the bank, a duty solely enjoined by the statute, being governed by the national bank act, it is self-evident that the rule expressed by the statute is exclusive, because of the elementary principles that where a statute creates a duty and prescribes a penalty for nonperformance, the rule prescribed in the statute is the exclusive test of liability. Farmers' & M. Nat. Bank v. Dearing, 91 U.S. 29, 35 , 23 S. L. ed. 196, 199, and cases cited. The error in the decision below becomes at once apparent when its correctness is tested by the rule that the statute is applicable and prescribes the exclusive test of liability. The doctrine, as we have seen, upon which the court below rested its judgment, was that directors of a national bank who merely negligently participated in or assented to the making and publishing of an untrue offical report of the condition of the bank were civilly liable to anyone deceived to his injury by such report. Indeed, in one aspect, the ruling below went further than this, since it was, in substance, decided that, despite the exercise of diligence by the director, if he attested an untrue report he was civilly liable, because he did so at his risk, since it was his duty to know or to refrain from acting. That this imposed a [206 U.S. 158, 180] higher standard of conduct than was required by the statute is obvious, but is clearly also established by previous decisions of this court, pointing out that where by law a responsibility is made to arise from the violation of a statute knowingly, proof of something more than negligence is required; that is, that the violation must in effect be intentional. McDonald v. Williams, 174 U.S. 397 , 43 L. ed. 1022, 19 Sup. Ct. Rep. 743; Potter v. United States, 155 U.S. 438, 446 , 39 S. L. ed. 214, 217, 15 Sup. Ct. Rep. 144, and cases cited. See, also, Utley v. Hill, 155 Mo. 232, 264, et seq. 49 L.R.A. 323, 78 Am. St. Rep. 569, 55 S. W. 1091, and cases cited.
Of course, in what has been said we have confined ourselves to the precise question arising for decision, and therefore must not be understood as expressing an opinion as to whether and to what extent directors of national banks may be civilly liable by the principles of the common law for purely voluntary statements made to individuals or the public, embodying false representations as to the financial condition of the bank, by which one who has rightfully relied upon such representation has been damaged. And because we have applied in this case to the duty expressly imposed by the statute the standard of conduct established therein we must not be considered as expressing an opinion upon the correctness of the views enunciated by the court below concerning the standard which should be applied solely under the principles of the common law, to fix the civil liabilities of directors in an action of deceit. See Briggs v. Spaulding, 141 U.S. 132 , 35 L. ed. 662, 11 Sup. Ct. Rep. 924.
There is a suggestion that the subjectmatter of this controversy is so inherently Federal that, although the judgments of the circuit court and of the circuit court of appeals, remanding the cause to the state court, may not be re-examined (25 Stat. at L. 435, chap. 866, U. S. Comp. Stat. 1901, p. 509), nevertheless it should now be decided that the state court was wholly devoid of jurisdiction. This claim is predicated upon the provision of 5239, Rev. Stat., conferring exclusive jurisdiction on courts of the United States to declare a forfeiture of the charter of a national bank as the result of wrongs committed by the directors, and the contention that a declaration of such forfeiture is a prerequisite to [206 U.S. 158, 181] an action to enforce the civil liability of directors, and that such action could only be brought in the court of the United States after a forfeiture has been adjudged. We content ourselves with saying that we think these contentions are without merit.
Sec. 5211. Every association shall make to the Comptroller of the Currency not less than five reports during each year, according to the form which may be prescribed by him, verified by the oath or affirmation of the president or cashier of such association and attested by the signature of at least three of the directors. Each such report shall exhibit, in detail, and under appropriate heads, the resources and liabilities of the [associations] [association] at the close of business on any past day by him specified; and shall be transmitted to the Comptroller within five days after the receipt of a request or requisition therefor from him, and, in the same form in which it is made to the Comptroller, shall be published in a newspaper published in the place where such association is established, or, if there is no newspaper in the place, then in the one published nearest thereto in the same county, at the expense of the association; and such proof of publication shall be furnished as may be required by the Comptroller. The Comptroller shall also have power to call for special reports from any particular association whenever, in his judgment, the same are necessary in order to a full and complete knowledge of its condition.
Sec. 5209. Every president, director, cashier, teller, clerk, or agent of any association, who embezzles, abstracts, or wilfully misapplies any of the moneys, funds, or credits of the association, or who, without authority from the directors, issues or puts in circulation any of the notes of the association; or who, without such authority, issues or puts forth any certificate of deposit, draws any order or bill of exchange, makes any acceptance, assigns any note, bond, draft, bill of exchange, mortgage, judgment, or decree; or who makes any false entry in any book, report, or statement of the association, with intent, in either case, to injure or defraud the association or any other company, body politic or corporate, or any individual person, or to deceive any officer of the association or any agent appointed to examine the affairs of any such association; and every person who, with like intent, aids or abets any officer, clerk, or agent in any violation of this section,-shall be deemed guilty of a misdemeanor, and shall be imprisoned not less than five years nor more than ten.


On August 13, 2014, the First Circuit addressed an issue of first impression in Fresinius Medical Care Holdings, Inc. v. United States, holding that a court may consider factors beyond a tax characterization agreement when determining the deductibility of a settlement payment under the False Claims Act (FCA). In so holding, the court rejected the government’s argument that the Ninth Circuit had appropriately adjudicated this issue in Talley Industries, Inc. v. Commissioner and that the only pertinent inquiry in determining the deductibility of an FCA settlement payment is whether a tax characterization agreement exists between the government and the settling parties. The court explained its disagreement with the Ninth Circuit: “[i]f Talley stands for the proposition asserted by the government, then Talley is incorrectly decided and does not deserve our allegiance.” In its decision, the First Circuit correctly parted from Talley and determined that the economic realities of a settlement agreement should be considered in the absence of a tax characterization agreement. Nonetheless, in adopting this test, the First Circuit should have gone further to hold that economic realities should not be ignored even in the presence of such an agreement. Considering that FCA settlements often involve hundreds of millions of dollars, the First Circuit’s decision will have significant tax consequences for companies settling FCA suits in the future.
The False Claims Act imposes liability if a person knowingly submits a false claim to the government or knowingly makes a false record or statement to have a false claim paid by the government. Additionally, what is known as “the reverse false claims” section imposes liability where one acts improperly in order to avoid having to pay money to the government. The statute provides that a liable individual must pay a civil penalty between $5,500 and $11,000 for each false claim, plus triple the amount of the government’s actual damages.
In Talley, the Ninth Circuit considered the tax treatment of an FCA settlement over a defense contractor’s fraudulent conduct. The court started from the common understanding that FCA damages can serve both punitive and compensatory purposes. The court reasoned that, to the extent the settlement exceeded single damages to the government, the case presented a question “as to the characterization and the purpose of” that “excess” portion of the settlement. Because the settlement agreement in the case did not include detail regarding the tax characterization of the payment, the court remanded the case to the tax court with the direction to answer this question by determining “whether the parties intended the payment to compensate the government . . . or to punish” the taxpayer. The court also stressed that the taxpayer bore the burden of proving eligibility for deductions and would suffer the consequences of any lack of the parties’ intent. This decision has been interpreted to mean that any FCA civil settlement payment in excess of the government’s actual damages should be treated as punitive fines—and thus non-deductible—unless the parties have manifested a contrary intention, regardless of the economic reality of the settlement.
In Fresinius, the government relied on Talley for the proposition that only a tax characterization agreement between the government and the taxpayer can prove manifested intent regarding the tax characterization of a settlement payment. However, the First Circuit determined that a rule requiring a tax characterization agreement as a precondition to deductibility focuses “too single-mindedly on a parties’ manifested intent in determining the tax treatment of a particular payment.” The court reasoned that the government could simply refuse to agree to a tax characterization in every instance, therefore disallowing deductibility even when settlement payments were compensatory and not punitive. As a result, the court held that a tax characterization agreement is not a precondition to the deductibility of a settlement payment.
The court noted that, although the “holding may be at odds with the decision in Talley,” the court was “convinced that generally accepted principles of tax law compelled [the court] to part company with the Ninth Circuit.” But the First Circuit also noted that its intention was not to undermine the “intent” of settling parties. The court stated that if the government and a defendant settle an FCA claim and specifically agree as to how the settlement will be treated for tax purposes, the reviewing court should honor that agreement. However, in Fresinius the government and the taxpayer explicitly disagreed on the tax characterization of the settlement payment. Therefore, the court ruled it was appropriate to analyze the economically reality of the particular transaction to determine whether there was a compensatory purpose, and thus whether the payment was deductible. After analyzing the economic realities of the FCA settlement in Fresinius, the jury found that $95,000,000 of the $127,000,000 settlement payment should be considered “compensatory.” Thus, the court ordered tax refunds which, with accrued interest, totaled over $50,000,000.
The First Circuit was correct in parting from the Ninth Circuit’s decision in Talley. The Talley decision effectively ruled that, if the parties did not explicitly agree on the tax characterization of a settlement payment, they had impliedly agreed that any payment in excess of single damages to the government should be considered punitive damages and non-deductible. This interpretation of Talley ensured that the government would receive the most favorable tax position in every single FCA settlement, regardless of the economic reality of the settlement payment. By holding that a tax characterization agreement was not a precondition to the deductibility of an FCA settlement payment, the First Circuit’s holding allows a taxpayer to have an equal bargaining position when settling an FCA case.
Creating an implied agreement where no explicit agreement exists would also be inconsistent with other areas of tax law. For example, when private parties are involved in a transaction challenged by the government, courts typically look to the substance of the transaction to determine tax characterization, regardless of any agreement the parties may have had in place. This same approach should apply to a settlement payment.
Should the First Circuit Have Gone Further?
In its holding in Fresinius, the First Circuit noted that, if a tax characterization agreement exists between parties in an FCA settlement, the court should honor that agreement. However, when an FCA case is litigated rather than settled, there is no tax characterization agreement. Nevertheless, some portion of the award beyond single damages may be determined to be compensatory, and thus deductible. A rule that, in the absence of an agreement, any damages beyond single damages are automatically considered punitive and not deductible would be in direct conflict with well-settled tax law. It does not follow that a tax characterization agreement in an FCA settlement should be binding despite the economic realities of the settlement, when no such agreement exists in a litigated FCA case. Generally, amounts paid or received in settlement should receive the same tax treatment, to the extent practicable, as would have applied had the dispute been litigated and reduced to judgment. In that sense, not only should a court be permitted to look at the economic reality of a settlement payment in the absence of a tax agreement, it should have the duty to look beyond the language even where a tax agreement exists.
Requiring courts to look at the substance of an FCA settlement even where a tax agreement exists would be in accordance with other areas of tax law previously discussed. Similar to considering transactions between private parties, a tax characterization agreement in an FCA settlement should be considered and generally followed, but where the substance of a settlement is clearly inconsistent with the tax characterization agreement, the economic reality of the settlement must rule.
Whether a settlement payment under the FCA is tax deductible can have huge monetary consequences. In Talley, the Ninth Circuit held that in order for settlement payments in excess of single damages to be considered “compensatory,” the parties must have manifested intent to categorize the excess payment as such. The Ninth Circuit determined that this manifested intent could only be demonstrated through a tax characterization agreement. The First Circuit correctly parted from Talley in Fresinius, holding that, in the absence of a tax characterization agreement, a court should consider the economic realities of a settlement to determine the allocation of the payment between compensatory and punitive and thus its deductibility. However, the First Circuit should have gone further. Even where a tax characterization agreement exists, courts often act as the watchdog over the tax treatment of transactions between private parties. It follows that the court should play a similar role in presiding over the tax characterization of settlement payments. Additionally, because settlement payments should result in the same tax treatment as adjudicated claims, the best rule would hold that, even where a tax characterization agreement exists, the economic realities of an FCA settlement payment should be considered in determining the deductibility of that payment.
 Section 162(a) of the Internal Revenue Code allows a taxpayer to deduct all ordinary and necessary business expenses incurred by the taxpayer in carrying on any trade or business for United States federal income tax purposes. Section 162(f) provides an exception to this rule, prohibiting the deduction of fines or similar penalties paid to a government for the violation of any law. However, compensatory damages paid to a government are explicitly excluded from the definitions of fines and penalties. 26 C.F.R. § 1.162-21(b)(2). Therefore, a company may deduct the amount of a civil FCA settlement characterized as compensatory for tax purposes.
 Talley Industries, Inc. v. Comm’r, 116 F.3d 382 (9th Cir. 1997).
 Fresinius, 763 F.3d at 71.
 Southern Pac. Trans. Co. v. Comm’r, 75 T.C. 497, 653, 1980 WL 4591 (1980).
 Id.; see also Huff v. Comm’r, 80 T.C. 804, 824, 1983 WL 14824 (1983); Stephens v. Comm’r, 905 F.2d 667, 673 (2d Cir. 1990); True v. United States, 894 F.2d 1197, 1203-04 (10th Cir. 1990); Bailey v. Comm’r, 756 F.2d 44, 46-47 (6th Cir. 1985).
 Compensatory damages are deductible because they do not serve the same purpose as a criminal fine and are not “similar” to a fine within the meaning of 26 U.S.C. § 162(f).
 Irwin v. Comm’r, 131 F.3d 146 (9th Cir. 1997); Gragg v. United States, No. 12-CV-3813 YGR, 2014 WL 1319686, at *3 (N.D. Cal. Mar. 31, 2014); United States v. Helms, No. 08 CV 151 JLS NLS, 2010 WL 3384997, at *6 (S.D. Cal. Aug. 26, 2010). Each of these cases relies on Talley for the proposition that “if evidence to establish a deduction is lacking, the taxpayer, not the government, suffers the consequence.” In Fresinius, the government relied on this proposition to argue that, absent a manifested contrary intention, any settlement sums in excess of single damages should be treated as punitive fines, and are therefore nondeductible for the taxpayer. Fresinius at 69.
 Fresinius Medical Care Holdings, Inc. v. United States, 763 F.3d 64, 70 (1st Cit. 2014).
 Fresinius Medical Care Holdings, Inc. v. United States, 763 F.3d 64, 66 (1st Cit. 2014). The First Circuit affirmed the district court’s decision to instruct the jury to focus on the economic realities of a settlement in the absence of a tax characterization agreement. Fresinius involved nearly $127,000,000 paid to the government under an FCA settlement. The jury found that $95,000,000 was deductible. Accepting this finding, the court ordered tax refunds for Fresinius, which totaled more than $50,000,000.
 See, e.g., United States v. Eurodif S.A., 555 U.S. 305, 317–18 (2009); Boulware v. United States, 552 U.S. 421, 429–30 (2008).
 See Cook Cnty. v. United States ex rel. Chandler, 538 U.S. 119, 130–31 (2003); United States v. Bornstein, 423 U.S. 303, 315 (1976).
 See, e.g., Lyeth v. Hoey, 305 U.S. 188, 196 (1938).


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Civil Litigation - Willi Law Firm, P.C.
Willi Law Firm is committed to providing its clients with the highest standard of legal representation. Our attorneys provide clients with experienced insight on case evaluation and strategy. By aggressively defending or pursuing claims, Willi Law Firm places its clients in the best possible position for a negotiated settlement or trial. Whether litigating in federal or state court, Willi Law Firm provides quality representation at competitive rates.
The best way to achieve a favorable result in litigation is to be the party most prepared to go to trial. Every step of Willi Law Firm's representation in litigation is focused on the end result. Discovery is not done for the sake of increasing the costs of any party—discovery is used to prove a point necessary for trial. Motions are not filed for the legal exercise—motions are filed to achieve legal objectives.
The attorneys at Willi Law Firm regularly appear in Texas District and County Courts and in United States District Courts and Bankruptcy Court for hearings, bench trials, and jury trials. Moreover, our attorneys regularly assist other law firms with a wide range of litigation support services, including pre-trial motion practice, written discovery, depositions, exhibit and witness preparation, trial presentation, and post-trial motion practice. Our attorneys have the experience to "get up to speed" fast and "put out fires." In addition to supporting our colleagues at the trial court level, Willi Law Firm also provides advice or assistance at the appellate level, including consulting on strategy, drafting briefs, and preparing for oral arguments.
Our litigation support services are available to in-house counsel, foreign attorneys, or local law firms who are in the process of litigating matters either beyond the scope of their expertise or simply in need of assistance of additional senior counsel. Whether you need support with lawsuit strategy, discovery, motions, witness lists, or exhibits, Willi Law Firm can assist you by alleviating your workload, enhancing your substantive knowledge, and allowing you to provide exceptional and efficient representation for your client.
Vervante Corporation v. Sheri Lynn McConnell. Willi Law Firm represented Vervante Corporation in a suit on a sworn account, which was filed in the District Court of Bexar County, Texas, against Sheri Lynn McConnell.
N5ZX Aviation, Inc. v. Bell et al. Represented Nashville, Tennessee-based defendants in a case involving allegations of fraud, fraudulent inducement, fraudulent concealment, negligence, negligent misrepresentation, tortious infererence with prospective economic advantage, conversion, false claims of good and clear title, false, misleading, and deceptive advertising, breach of implied warranty of fitness for a particular purpose, and breach of implied warranty of merchantability. Judge Sam Sparks of the U.S. District Court for the Western District of Texas granted Willi Law Firm's motion to dismiss for lack of personal jurisidiction and ordered the case transferred to Tennessee.
AIC Management v. Crews. Represented the plaintiff in a jury trial to determine entitlement to funds held in the court registry from an eminent domain proceeding. AIC Management purchased property at a tax foreclosure sale for $1,000. Several years later, the City of Houston filed an eminent domain proceeding to re-purchase the land for more than $250,000 for the expansion of the George Bush Intercontinental Airport. The dispute was between the previous owners and the purchaser at the tax foreclosure sale. Willi Law Firm was hired after the case had been lost at the trial court and at the court of appeals. Willi Law Firm appealed the case to the Texas Supreme Court, won the appeal, and re-tried the case to a jury in Harris County, winning with a unanimous verdict.
CITGO Products Pipeline Co. v. Bechtel Corp., et al. Represented CITGO in a jury trial to recover damages from contractors for damage to a pipeline. The jury awarded over $2.0 million in damages based, in part, upon violations of the Texas One-Call statute. The contractors appealed the case and most of the award was upheld. The case is reported at 271 S.W.3d 898 (Tex. App.—Austin 2008).
Epic Real Estate Solutions, Inc. et al. v. Tindall & Foster, P.C. Represented defendant in a decaratory judgment action filed in Travis County District Court relating to a commercial lease. The defendant responded aggressively with counterclaims of breach of contract and equitable estoppel. The case was settled on terms favorable to Willi Law Firm's client.
Pool v. Diana et al. Represented defendant is a case filed in Hays County District Court involving issues of defamation and business disparagement. Faced with pending motions for summary judgment and motions for sanctions, the plaintiff agreed to a take-nothing settlement and final order of dismissal of all claims against Willi Law Firm's clients with prejudice.
King Records, Inc. v. Daily. Represented defendant in the U.S. District Court for the Middle District of Tennesse in a case involving issues of copyright and ownership of George Jones Musicor master recordings pursuant to a settlement agreement.

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