In the News

In Trademark Battle Against Former U.S. Marketing Agent Haynes and Boone Prevails for Chinese IP Firm

In a dispute litigated from California to Oregon to the People’s Republic of China, Haynes and Boone, LLP lawyers have successfully defended a Chinese IP Firm’s trademark against the claims of its former U.S. marketing partner.

The latest victory for firm client AFD China Intellectual Property Law Office (AFD China) came March 28 after a three-day trial in an Oregon federal district court when a jury decided the former marketing agent, AFD USA, had no right to claim ownership of the “AFD” mark because AFD China was the first to use it in U.S. commerce. >>

Haynes and Boone in Law360: Texas Justices Blow Away $29M Wind Energy Credit Penalty

The Texas Supreme Court said Friday that an Energy Future Holdings Corp. unit’s contract for renewable energy imposed an unreasonable $29 million penalty against a predecessor of NextEra Energy Inc., rendering the damages provision unenforceable. >>



Recent Publications

Federal Update

An update of Federal appellate cases, as seen in State Bar Litigation Section News for the Bar, State Bar of Texas, Winter 2013. >>



Ben L. Mesches

Partner

Dallas


2323 Victory Avenue
Suite 700
Dallas, Texas 75219
T +1 214.651.5234
F +1 214.200.0913

Areas of Practice

Education

  • J.D., University of Texas at Austin School of Law, 2001, with honors; Member, Texas Law Review
  • B.A., Political Science, Trinity University, 1998, cum laude

Bar Admissions

  • Texas

Court Admissions

  • U.S. Supreme Court
  • Texas Supreme Court
  • U.S. Court of Appeals for the Fifth Circuit
  • U.S. Court of Appeals for the Seventh Circuit
  • U.S. Court of Appeals for the Ninth Circuit
  • U.S. Court of Appeals for the Tenth Circuit
  • U.S. Court of Appeals for the Federal Circuit
  • U.S. District Court for the Northern District of Texas
  • U.S. District Court for the Southern District of Texas
  • U.S. District Court for the Western District of Texas

Judicial Clerkships

Justice Harriet O'Neill, Texas Supreme Court (2001-2002)
Ben L. Mesches

Ben is a board-certified appellate lawyer with diverse experience in complex business, railroad, energy, and bankruptcy disputes in state and federal appellate courts. He has handled numerous appeals in the Fifth Circuit, argued before the Texas Supreme Court, where he served as a law clerk, and is frequently before appellate courts across the country.

Ben also plays a key role on successful trial teams, developing legal strategy from the outset of litigation, making and responding to dispositive motions, preparing and arguing the jury charge, and crafting post-trial briefing.

Ben leverages his litigation experience, particularly in fiduciary and corporate disputes, to counsel clients and business lawyers on critical dispute-resolution, disclaimer, fiduciary, and release provisions in complex corporate and energy transactions.

Selected to serve on the prestigious exam commission administering the board certification exam in civil appellate law, Ben is a respected leader in the appellate bar. He is chair of the nation's largest appellate bench-bar organization comprised of state and federal appellate judges and leading appellate advocates from across the county, serves on the board of the Texas Supreme Court Historical Society, and regularly writes and speaks on appellate practice topics.

Representative Experience

Appeals

  • In a closely watched and hotly contested Dallas-area election, obtained emergency relief on mandamus review in the Dallas Court of Appeals, removing legal obstacles just days before Election Day.
  • Obtained dismissal, in the Fifth Circuit, of minority shareholders' derivative claims under Delaware law against investment funds related to a $54 million merger of healthcare companies.
  • In a $25 million excess insurance-coverage dispute dismissed by the trial court, insurance carrier agreed to substantial settlement before briefing was complete in the Fifth Circuit.
  • Enforced forum selection clause, in the Dallas Court of Appeals, resulting in the dismissal of franchisor's claims against franchisee.
  • Reversal and rendition of a take-nothing judgment, in the Austin Court of Appeals, on employment-related harassment claims against retailer.
  • Persuaded the Dallas Court of Appeals to reverse and render judgment dismissing claims against officers of a franchisor for lack of personal jurisdiction.
  • Vacatur, in the Fort Worth Court of Appeals, of an award of damages and dismissal of suit because the probate court lacked subject-matter jurisdiction over claims related to a right of first refusal.
  • Obtained reversal, in the San Antonio Court of Appeals, of a temporary injunction freezing more than $150 million of assets held by real estate investors based on the Federal Arbitration Act's automatic-stay provision.

Trial Court Experience

  • In a $200 million fraud and fiduciary duty case involving a complex energy transaction, procured dismissal of claims for lack of personal jurisdiction in Indiana federal court.
  • In a medical partnership dispute, obtained relief from a multi-million jury verdict with a successful motion for judgment notwithstanding the verdict.
  • In a multi-million dollar case under the Texas Securities Act in federal court, secured favorable jury charge and motion for judgment as a matter of law rulings, resulting in the complete dismissal of the plaintiff's claims on the eve of closing argument.
  • Through post-trial briefing, implemented a legal strategy that defeated an $80 million software-related copyright suit in federal court.
  • In a mineral ownership dispute alleging mutual and unilateral mistake in a deed, successfully argued the jury charge as part of a trial team that obtained a complete defense verdict.

Energy Litigation

  • In the Fifth Circuit, defeated preemption, commerce clause, and eminent domain claims related to natural gas production regulations.
  • In a complex series of appeals and mandamus proceedings in three appellate courts involving the development of a state-wide energy-transmission project at the intersection of eminent domain power, the effect of a Public Utility Commission order, and a local government ordinance, part of a team that successfully resolved disputes paving the way for transmission line to be timely completed.
  • In the Texas Supreme Court, argued case involving the intersection of lease termination, pooling, and drilling-cost recovery.
  • At the Dallas Court of Appeals, preserved summary judgment in dispute over purchase of mineral and royalty interests. 
  • In the Fifth Circuit, defeated turnover, alter ego, and unjust enrichment claims related to ownership of transferred leasehold interests.
  • Persuaded Judicial Panel on Multidistrict Litigation to transfer a series of suits against oil-and-gas operator alleging its equipment sparked a wildfire that swept across the panhandle to a single pretrial court.

Bankruptcy Appeals

  • In the Fifth Circuit, reversed a fee enhancement award granted to debtor's financial advisor, clarifying legal standards applicable to fee claims under § 328(a) of the Bankruptcy Code. On remand, financial advisor's remaining claims were rejected.
  • On direct appeal to the Fifth Circuit, preserved a standing defense to a preference action based on a release and novation agreement and persuaded the bankruptcy court, on remand, to dismiss based on this defense.
  • Persuaded the Fifth Circuit Court to dismiss - on equitable mootness grounds - the appeal of a $3.6 billion bankruptcy plan of reorganization, challenged by a competing bidder and the company's union.
  • Obtained appellate ruling from a Delaware federal district court striking liquidated damages provision invoked by landlord in post-confirmation litigation about lease assumed by the debtor.
  • In Fifth Circuit appeal addressing the intersection between the Bankruptcy Code's automatic-stay provision, the debtor's power over executory contracts, and the Anti-Assignment Act, blocked the federal government's attempt to terminate a power contractor.
  • Vacated a summary judgment ruling that dismissed an action seeking to revoke a confirmation order.

Professional Recognition

  • Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization (2007-Present)
  • Selected for inclusion in Texas Super Lawyers in 2014, after having been selected for the Rising Stars Edition from 2007-2014
  • Dallas Bar Foundation - Fellow (2009)

Professional Leadership

  • Chair of the Council of Appellate Lawyers, the nation's only appellate bench-bar organization. In that capacity, he serves on the Board of the Appellate Judges Conference of the ABA's Judicial Division and the Appellate Judges Education Institute - a non-profit educating state and federal judges nationwide.  
  • Texas Supreme Court Historical Society: Selected to serve on the Board of Trustees; Fellow; and Chair of the Marketing Committee (2013- )
  • Texas Board of Legal Specialization: Member of the Exam Commission for Civil Appellate Law (2012-Present)
  • Dallas Bar Association, Appellate Section: Served as Chair of the Appellate Section (2011) and member of the Advisory Council (2007-2012)
  • Texas Appeals Management and E-Filing System (TAMES) Appellate Rules Drafting Committee (2009)
  • State Bar of Texas Appellate Section: Website Committee Co-Chair (2011-present)

Selected Representative Experience


ASARCO, L.L.C. v. Barclays Capital, Inc., 702 F.3d 250 (5th Cir. 2012)
Successfully represented an international copper mining company in Fifth Circuit appeal challenging multi-million bonus claim of debtor's financial advisor.

RT Jedburg v. American LaFrance LLC
On appeal to federal district court in Delaware, obtained ruling striking liquidated damages provision resulting in take-nothing judgment on $8 million post-confirmation bankruptcy claim related to lease dispute.

Indiana Charitable Trust v. Trevor Rees-Jones
Successfully represented oil and gas entrepreneur in federal court lawsuit alleging fraud-based claims based on redemption of LLC membership interests. Obtained dismissal of all claims on personal jurisdiction grounds.

In the Matter of Asarco L.L.C., 401 Fed. App'x 914 (5th Cir. 2010)
Persuaded the Fifth Circuit Court of Appeals to dismiss the appeal of a $3.6 billion bankruptcy plan of reorganization, which was challenged by a competing bidder and the company's union.

In re ASARCO, LLC, No. 05-CV-21207 and related adversary proceedings (Bankr. S.D. Tex.) (confirmation Nov. 13, 2009); Nos. 09-CV-177 and 07-CV-00018 (S.D. Tex.)
In a closely watched multi-billion dollar Chapter 11 restructuring of a copper mining company labeled by the district court as "one of the most successful bankruptcy proceedings in recent history," represented the debtor's parent company and worked with bankruptcy, litigation, and labor teams in contested matters, adversary proceedings, and bankruptcy appeals to the district court and Fifth Circuit. These matters included an $11 billion fraudulent transfer, fiduciary duty, conspiracy and aiding and abetting adversary proceeding; litigation of novel issues pertaining to a long-standing labor dispute and the enforceability of a collective bargaining agreement and its successorship clause; disputes regarding proposed acquisition and auction of the debtor's assets; environmental claims and asbestos liability issues; and successful confirmation of the proposed plan of reorganization by both the bankruptcy court and district court.

Data Center Systems (Kevin M Ehringer Enterprises Inc. d/b/a Data Center Systems v. McData Services Corporation f/k/a Computer Network Technology Corporation, Civil Action No. 3:06-CV-812-L, in the United States District Court, Northern District of Texas)
Secured a $12.5 million jury verdict on behalf of Dallas-based Data Center Systems (DCS) in a case alleging fraud related to a three-year agreement with Computer Network Technology Corporation (CNT) concerning data center connectivity products. CNT is now known as McData Services Corporation, a wholly-owned subsidiary of Brocade Communication Systems.

Texas Midstream Gas Services, L.L.C. v. City of Grand Prairie, 2008 WL 5000038 (N.D. Tex. Nov. 25, 2008)
Successfully prevented a national natural gas gathering company from obtaining injunctive relief against the institution of a City Ordinance related to natural gas gathering facilities.

In re Cano Petroleum, Inc., 283 S.W.3d 179 (Tex. Jud. Pan. Mult. Lit. April 2, 2008)
Persuaded the Texas Judicial Panel on Multidistrict Litigation to transfer to a single pretrial court numerous suits against an oil and gas operator arising out of wildfires in west Texas.

Rmax, Inc. v. Carlisle Companies, No. 0502610 (298th Dist. Ct., Dallas County, Tex.)
After a weeklong jury trial, obtained a judgment awarding damages for breach of a confidentiality agreement and all attorneys’ fees and expenses, which exceeded $750,000, and collected 100 percent of the judgment amount.

Burnett Ranches, Ltd. v. Cano Petroleum, Inc., No. 9840 (100th Dist. Ct., Carson County, Tex.)
Prevailed on summary judgment through appeal on a million-dollar lease termination claim.

Kondos v. Carrico, No. 02-05-00374-CV, 2007 WL 704587 (Tex. App. - Fort Worth Mar. 8, 2007, pet. denied) (mem. op.)
Obtained an appellate judgment vacating an award of damages and dismissing a suit because the probate court lacked subject-matter jurisdiction over contract claims arising out of a claimed breach of a right of first refusal pertaining to raw land.

Linda Wolf and Julie Reid v. Summers-Wood, L.P. d/b/a Roly Poly Texas, Summers-Wood Management, L.L.C., John W. Summers, and J. Michael Wood; 214 S.W.3d 783 (Tex. App. - Dallas 2007, no pet.).
Plaintiffs sued franchisor and its president and vice president. The president and vice president argued that they should not be subject to jurisdiction in Texas courts. The trial court determined that it did have jurisdiction. In a successful appeal, the court reversed and rendered judgment, dismissing president and vice president of franchisor from case based on lack of jurisdiction.

Wood v. Cendant Corp., Copy. L. Rep. (CCH) ¶29,252 (N.D. Okla. 2006)
Through dispositive motion practice and post-trial briefing, assisted in obtaining a take-nothing judgment in an $80 million copyright infringement suit; successfully defended the judgment on appeal.

Metra United Escalante, L.P. v. Lynd Co., 158 S.W.3d 535 (Tex. App. - San Antonio 2004, no pet.)
Obtained reversal of a temporary injunction - freezing more than $150 million of assets held by real estate investors - based on the Federal Arbitration Act's automatic-stay provision.

Community Initiatives v. Chase Bank of Texas, N.A., et al., 153 S.W.3d 270 (Tex. App. - El Paso 2004, no pet.)
Successfully defended summary judgment on tort claims related to a national financial institution’s business practices.

Citizens Nat’l Bank v. Allen Rae Investments, Inc., 142 S.W.3d 459 (Tex. App. - Fort Worth 2004, no pet.)
Won reversal of an award of credit-reputation damages in a lender-liability suit.

Western Oil & Gas JV Inc. v. Castlerock Oil Co., 91 Fed. Appx. 901 (5th Cir. 2003)
In an oil and gas case, successfully defended on appeal an order dismissing fraudulent transfer, unjust enrichment, and conspiracy claims.

Sweet v. Inkjet International Ltd., No. 05-03-00233-CV, 2003 WL 22254695 (Tex. App. - Dallas Oct. 2, 2003, no pet.) (mem. op.)
In a trade secrets and fiduciary duty case that resulted in a multi-million dollar damages award, handled pre-trial matters including the successful defense of an appeal from a temporary injunction, the preparation and argument of the jury charge, all post-verdict briefing, hearings, and judgment formation.

Anderson v. Siemens Corp., 335 F.3d 466 (5th Cir. 2003)
Obtained a reversal of a $7.5 million judgment in a products liability case.

Bonneville Power Admin. v. Mirant Corp. (In re Mirant Corp.), 440 F.3d 238 (5th Cir. 2006)
In an appeal addressing the intersection between the Bankruptcy Code’s automatic stay provision, the debtor’s power over executory contracts, and the Anti-Assignment Act, blocked an effort by a governmental agency to terminate an electric power contract.

Online Publications

01/07/2014 - Federal Update
An update of Federal appellate cases, as seen in State Bar Litigation Section News for the Bar, State Bar of Texas, Winter 2013.

10/01/2013 - Federal Update
As seen in State Bar Litigation Section News for the Bar, State Bar of Texas, Fall 2013.

04/01/2013 - Bankruptcy Appeals
As seen in Texas Journal of Business Law, Business Law Section of the State Bar of Texas, Spring 2013, Vol. 45, No. 2.

03/07/2013 - The 2012 Amendments to the Texas Rules of Appellate Procedure: An Overview of the Changes and What They Mean for Appellate Practitioners
As seen in The Appellate Advocate, State Bar of Texas Appellate Section Report, Winter 2012, Vol. 25, No. 2.

03/07/2013 - Fifth Circuit Civil Appellate Update
As seen in The Appellate Advocate, State Bar of Texas Appellate Section Report, Winter 2012, Vol. 25, No. 2, March 7, 2013.

12/31/2012 - Federal Update
As seen in State Bar Litigation Section News for the Bar, State Bar of Texas, Winter 2012.

12/07/2012 - Fifth Circuit Civil Appellate Update
As seen in The Appellate Advocate, State Bar of Texas Appellate Section Report, Fall 2012, Vol. 25, No. 1.

09/13/2012 - Bankruptcy Appeals
An appeal of a bankruptcy court order or judgment involves unique procedural and jurisdictional considerations. Bankruptcy appeals are different from an ordinary federal court appeal because of the unusually quick time frame for perfecting and briefing the appeal and the likelihood that such an appeal may be subject to substantive review by two appellate courts (the district court or Bankruptcy Appellate Panel and the court of appeals).

09/01/2012 - Fifth Circuit Civil Appellate Update
As seen in The Appellate Advocate, State Bar of Texas Appellate Section Report, Summer 2012, Vol. 24, No. 4.

06/14/2012 - Fifth Circuit Civil Appellate Update
As seen in The Appellate Advocate, State Bar of Texas Appellate Section Report, Spring 2012, Vol. 24, No. 3.

06/01/2012 - Fifth Circuit Update
Presented at the 2012 Conference on State and Federal Appeals, UTCLE, The University of Texas School of Law.

02/29/2012 - Fifth Circuit Civil Appellate Update
As seen in The Appellate Advocate, State Bar of Texas Appellate Section Report, Winter 2011, Vol. 24, No. 2.

09/02/2010 - Federal Jury Charge Practice: Preservation, Instructions, Verdict Forms, and Comparisons to State Court Practice
This paper addresses a topic about which Texas appellate practitioners are well-versed - submission of the jury charge - but from a federal perspective.

04/15/2010 - Texas Supreme Court Update
Presented to the Energy Symposium hosted by The Texas Wesleyan Law Review.

07/20/2009 - The 2008 Term of the United States Supreme Court: The Decisions Most Important to the Business Community
The United States Supreme Court recently issued several significant decisions affecting businesses and the nature of business litigation in federal court. The most important of these decisions are summarized in this alert.

04/17/2009 - Framing Issues in Your Petition for Review
Based on statistics over the last several years, a petition for review stands a 10-14% change of being granted. One of the most important factors in bringing your case within this 10-14% range is framing the issues in the petition for review. This paper will explore several strategies (and pitfalls) in framing issues in a petition for review at the Texas Supreme Court. 

04/01/2009 - A Guide to Web Sites & Blogs Related to Appellate Law
This article includes a sampling of Web sites and blogs focused on appellate practice and tracking appellate court decisions and brief descriptions of their content.

10/01/2008 - Direct Bankruptcy Appeals: Three Years Later
Reprinted with permission from the American Bar Association's "Appellate Issues," Council of Appellate Lawyers, October 2008.

05/31/2007 - Federal Discretionary Appeals
This paper explores three types of permissive, discretionary appeals authorized by statute and federal procedural rules: (i) appeals of interlocutory orders under 28 U.S.C. § 1292(b); (ii) appeals of class certification orders under Federal Rule of Civil Procedure 23(f); and (iii) direct and interlocutory bankruptcy appeals.

05/18/2007 - An Introduction to E-Claims
A presentation to the Tarrant County Bar Association Brown Bag Seminar Series: Trade Secrets, Confidential Information and Privileges in a Digital Age on May 18, 2007

06/01/2006 - Bankruptcy Appeals
An appeal of a bankruptcy court order or judgment involves unique procedural and jurisdictional considerations.

09/15/2005 - Handling a Bankruptcy Appeal: Practice Tips for Appeals to the District Court & the Court of Appeals
An appeal of a bankruptcy court order involves unique procedural and jurisdictional considerations.

09/07/2005 - Preserving Error Before Trial
“To preserve a complaint for appellate review, a party must present to the trial court a timely request, motion, or objection, state the specific grounds therefore, and obtain a ruling.”

09/30/2004 - An Overview of Selected Issues in Punitive Damages
In 1987, the Texas Legislature first codified the law governing punitive damages. See Act of June 3, 1987, 70th Leg., 1st C.S., ch. 2, § 2.12, 987 Tex. Gen. Laws 37, 44-46 (amended 1989, 1995, 1997 & 2001) (current version at TEX. CIV. PRAC. & REM CODE § 41.001-.013 (Vernon 1997 & Supp. 2003)). Then, in 1988, the Texas Supreme Court held that the defendant’s net worth is relevant to punitive damages and thus discoverable.

09/10/2004 - Post-Verdict Landmines: A Survival Guide
This paper attempts to provide a guide for handling that intense period of time between verdict and the expiration of jurisdiction in the trial court, from the perspective of the losing defendant.