David K. Bissinger
B.A., University of Iowa, 1990.
Your lawyer should know the courtroom (and, for many business disputes, full-blown arbitration hearing action) if you want to know the worth of your case. Yet many lawyers have little or no trial experience. Nothing but trial work sharpens a lawyer’s professional judgment, handling of hard questions, or accountability to clients. I invite you to read about my wide variety of trial victories because these will tell you more about how I can help you win.
What others are saying…
“Mr. Bissinger did an excellent job for his client (as did all counsel herein) in a complex matter involving valuation of patent infringement claims and several legal theories.”
– Arbitrator Gary McGowan, awarding $450,000 in legal fees
“David assisted my company with a complex claim. . . . [H]is advice was instrumental in positioning us to a good result. I would not hesitate to use David on future matters.”
– Trent McKenna, Senior Vice President, General Counsel, and Corporate Secretary, Comfort Systems USA, Inc. (NYSE:FIX)
“When it comes to Wall Street there are few remedies for claims so it is imperative that you have competent, cost-effective, and aggressive representation. For me and for my company that was Dave Bissinger whom I most highly recommend.”
– Gary Sexton, Sexton Interests
Selected to “Texas Super Lawyers®” (2009-2016) and “Texas Rising Stars” (2007), as published in Texas Monthly and other publications.
Rated as “AV®” by Martindale-Hubbell (2003-present).
Case #1: Admitted fiduciary defeats $19 million claim
Texas trial lawyers who defend fiduciary duty cases grumble that only Mother Teresa could satisfy that high duty of care. In this case, our client conceded that he was a fiduciary – but avoided a claim for $19 million in damages.
Our client, Scott Martin, had come to blows with his brother, Ruben Martin, over the ownership and control of their family businesses. For one of those businesses, Inspiration Biopharmaceuticals, Scott was a founder. Scott had founded Inspiration to develop genetic therapies for the treatment of hemophilia; Scott’s son suffers from the rare blood disorder.
Scott wanted Ruben to invest; Ruben had the money and the cure would benefit Ruben’s nephew. At first, Ruben did invest. He and others in his control contributed a total of $2,250,000 in new funds to Inspiration through a newly formed entity, Martin Biopharmaceutical Investments, LLC (“MBI”). Scott contributed his existing shares in Inspiration to MBI. MBI thus held the shares of Scott, Ruben, and the others in MBI.
Scott wanted Ruben to invest more. But Ruben refused. Ruben had other ideas about how to spend the family fortune, including a new private jet. Ruben stopped listening to Scott altogether. Ruben began to squeeze Scott out of the main family business, Martin Resource Management Corporation (“MRMC”). Multiple lawsuits followed.
As the dispute developed, Ruben discovered documents showing Scott continuing to invest in Inspiration. Of course, Scott’s continued investments went directly to Inspiration, not the family entity MBI.
Ruben also saw something in Scott’s documents: an appraisal valuing Inspiration as worth as much as $1.7 billion (like so many biotech valuations, however, this valuation was speculative, based on cash flow that did not yet exist). So Ruben sued Scott, alleging that Scott’s later direct investments into Inspiration – not into the family entity MBI – breached Scott’s fiduciary duties to MBI. According to Ruben, Scott usurped MBI’s corporate opportunity, requiring, among other things, Scott to pay $19 million to Ruben to make up for the lost opportunity.
Scott’s witnesses explained why Ruben and the other claimants had no right to expect further investments in MBI: Ruben and the others declined several opportunities that Scott gave them to continue to invest with Scott directly into Inspiration. Several witnesses and documents left no question of this fact. For example, Scott’s co-founder, and prominent hedge-fund manager John Taylor testified:
Likewise, as corporate fiduciary expert Professor Robert Ragazzo – frequently an expert in corporate fiduciary litigation – testified:
In its award, the panel agreed, concluding that:
Claimants, by their conduct, displayed their intention that MBI would serve only as a one-shot investment opportunity for Claimants and that none of them had the intention or desire that MBI would serve as an on-going investment vehicle for purposes of acquiring additional shares of Inspiration. . . . Respondent breached no fiduciary duty to Claimants by failing to do more or to allow or encourage Claimants’ further investments in Inspiration through MBI. . . . Respondent did not deprive Claimants, either individually or as members of MBI, of a corporate opportunity.”
The arbitration panel issued this award in July 2012. Ruben’s other main countersuit against Scott had failed that January. By early October 2012, Ruben had settled all outstanding litigation with Scott.
Case #2: Steam turbines on the fast track
Our client owned a power plant with two gas-fired turbine generators. The “firing” of gas-fired turbines turns the fans, and creates energy, just as the candle to the right turns the fans. But many turbines emit nitrogen oxide (NOx) and other pollutants subject to regulation.
Our client hired its future adversary to modify its turbogenerators to reduce NOx emissions. The service company defrauded my client when it represented that it could do the job. We learned about the fraud much later from several former engineers of the service company. One of the former engineer had documented his concerns in memos to his supervisors.
Before we learned the details about the fraud, however, our client had declared the service company in breach of contract for failure to perform, and thus had refused to pay invoices to the service company in excess of nearly a million dollars. The service company sent my client letter demanding payment and threatening suit. Recognizing we had a fight on our hands, we filed suit in Texas state court seeking a declaration that we owed nothing under the contract with the service company and claims for damages for breach of contract and fraudulent inducement for the massive damage the defective work did to the generators.
We obtained a fast-track scheduling order, took focused discovery in Florida, New York, and Utah (including the compelling testimony of the former employee and the site inspection documented to the left).
Our discovery uncovered that the service company’s fraud – again through the testimony of former engineers – and within a year of filing suit, we obtained a favorable confidential settlement within a few weeks of trial.
Case #3: Grandson of the Wolf of Wall Street
Our elderly investor client discovered he had lost millions of dollars in the course of several months in high-yield (“junk”) municipal bonds from a rogue trader, Andrew Reid. Our client made this discovery after his new registered investment advisor reviewed his accounts and discovered that the many of the bonds were in default, had suffered ratings downgrades, and/or were otherwise known among industry experts as disastrous (such as those from Jefferson County, Alabama, which later declared bankruptcy).
We filed an NASD arbitration against four brokerage firms where the rogue trader had traded. In discovery, we learned that the broker had forged large numbers of account transfer documents. The broker perpetrated these forgeries keeping a stack of sheets that were blank except for our client’s signature. When the broker wanted to move bonds from one account to another, the broker used one of the copies.
As a former receptionist for the rogue broker testified:
“If there was a document that [the customer’s] signature was necessary on and [the customer] was unable to come into the office, Andrew would have me take a copy of this signature and cut it out to fit the signature line on the piece of paper. I would then tape the signature paper on top of the contract or whatever, then I would make a copy of it to where it looked like his signature was on there originally.”
Broker Reid further defrauded our client by orchestrating what broker Reid called “tax loss selling” – selling junk bonds that had crashed in value to generate tax losses, and then taking the proceeds and buying new bonds. Reid neglected to tell my client, however, that the costs for the bond trades in the so-called “tax swaps” exceeded the value of the tax deductions. The selling thus juiced Reid’s compensation but served no economic benefit to our client.
The NASD had revoked Reid’s license as a broker during the case; the arbitration panel lacked jurisdiction to compel him to appear in Houston at the arbitration hearing. He was living in New Orleans, working as a tour guide in the French Quarter. So my opponents insisted on deposing him. For three days.
Reid’s testimony was less than straightforward. For example:
Q. [W]as it fair for [our client] to rely on you about information regarding the bonds that you recommended to [him]?
A. I mean, the word fair in this, how does that apply to the situation? What do you mean, is it fair for him to rely on me? He has that right to rely on me, he can rely on me, or he can seek a second opinion.
The former receptionist told a different story. As she told me in direct examination:
“[Your client] trusted Mr. Reid. Mr. Reid specifically said that whenever he had anything that he wanted to sell or anything along those lines, that he knew he could call [your client] because [he] trusted him.”
No surprisingly, three of the four brokerage firms – GMS, First Allied, and Williams Financial Group – all settled before the conclusion of the final hearing for confidential amounts.
The holdout, Corporate Securities Group, refused to settle. Corporate Securities Group was infamous, having become the home of many brokers from famed Wolf of Wall Street firm Stratton Oakmont and one of its successors, Biltmore Securities.
After eight hearing days, the NASD panel awarded our client’s full out-of-pocket damages against CSG, $375,000, just a small portion of his total losses (and settlements) from the many firms that Reid used to prey on him.
Case #4: Stock buyer defrauds stock buyer
The typical securities-fraud case involves the seller withholding bad news from buyers. But fraud can occur the other way: when a buyer withholds good news from sellers. That’s what happened to our senior-executive client who owned a substantial amount of his company’s closely held shares. While our client was working on special assignment overseas for an affiliate, he received a notice from his company ordering to sell his shares – supposedly because of his special employment for the affiliate.
The company failed to mention that it was in advanced merger talks with a large corporation. Our client knew nothing about the merger talks. He did what his bosses told him to do and tendered his shares for book value. Shortly after that, he resigned, having lost all upside in the company. Within a matter of days of his resignation, he learned the truth: his company would be acquired, and those holding shares would reap a substantial premium.
We filed suit in Texas state court and obtained discovery, including acknowledgment from the CEO that the company had internal policy of forbidding company insiders from buying shares during merger talks. Of course, that’s what had happened: the buyer bought from our client while withholding good news from our client.
Again, the securities laws protect investors against misrepresentations and omissions when they sell shares as well as when they buy them. Within nine months of filing suit we had a substantial confidential settlement for our client.
Case #5: Last-minute substitution for the big win
When a case is neither settled nor dismissed before trial, we are often asked to step in.
That happened in the spring of 2006, when our client DeBie Midland, Inc. faced a jury trial on a claim it knew to be false and frivolous. Unfortunately, its original counsel failed to obtain a summary judgment.
DeBie had $2.5 million in bridge loans to the supposed “eBay of the oil patch,” a company that called itself Icoworks. Icoworks borrowed the $2.5 million from DeBie to cover operating expenses in advanced of a public offering. Unfortunately, shortly after the offering, Icoworks stock crashed, and Icoworks never repaid DeBie for the loans. The following chart shows the main timeline:
But DeBie’s woes did not end with unpaid loans. An earlier bidder on the Icoworks business, Craig Cannon, claimed had claimed to have a right to the business. Cannon at first filed a TRO trying to stop the sale to Icoworks. Judge Pat Hancock granted the TRO.
Icoworks sued Cannon, alleging that Cannon’s filing of the TRO constituted tortious interference that somehow harmed Icoworks.
Cannon sued DeBie, alleging that DeBie’s foreclosure of the assets of Icoworks constituted a fraudulent transfer. DeBie’s first lawyer attempted to defeat the case in a motion for summary judgment, but lost. So DeBie called me. We very quickly prepared the case for trial on the simple theme that DeBie’s losses far exceeded his gain.
The jury never got that far, finding, correctly, that the TRO did not constitute a tortious interference.
- Bissinger, Oshman & Williams LLP and predecessor firms. Partner, May 2006 to present.
- Clements, O’Neill, Pierce, Wilson & Fulkerson, L.L.P./Wilson Fulkerson LLP, Jan. 2003-May 2006 (partner); Oct. 2000-Dec. 2002 (associate).
- Weil, Gotshal & Manges LLP (Houston), Associate, Sept. 1994-Oct. 2000
- Law Clerk – Iowa Supreme Court, Chief Justice Arthur A. McGiverin, July 1993-July 1994 (substantial responsibility for preparation of 25 reported decisions).
- Texas, 1994; Iowa, 1993; U.S. District Court for the Northern Southern, Eastern, and Western Districts of Texas; United States Court of Appeals for the Fifth Circuit
- Chair – HBA Securities Litigation and Arbitration Chair, 2005-2007; council, 2002-2014.