In the News

Haynes and Boone Assists in High-Profile San Antonio Rivercenter Land Dispute

In a significant victory for Keystone-Texas Property Holding Corp., Haynes and Boone, LLP acted as appellate counsel in a trial that secured a favorable jury verdict for the property company in excess of $80 million in combined actual and punitive damages.

Haynes and Boone appellate Partner Alan Wright of Dallas, Houston Partner Mark Trachtenberg and Houston Associate Polly Graham were hired by Crouch & Ramey to represent Keystone as appellate counsel. The Haynes and Boone appellate team participated in the five-week trial to ensure an accurate record in anticipation of appeal. The verdict is not yet final and is subject to post-trial motions. >>

Texas Supreme Court Throws Out Multi-Million Dollar Jury Verdict Against Haynes and Boone Client Whirlpool

AUSTIN – The Texas Supreme Court has reversed a jury verdict awarding $14 million for a fatal fire after finding as scientifically unreliable an expert’s testimony the blaze was caused by a clothes dryer manufactured by Whirlpool Corp. Haynes and Boone, LLP represented the company on appeal. >>

Drop the Lifetime Tenure for Justices on High Court

Wouldn't it be nice if the words “Supreme Court confirmation hearings” weren't so often found in the same sentence as “circus”? The Sotomayor hearings are hardly changing the situation. A big-top atmosphere pervades the hearings, even though the outcome is virtually assured. >>



Recent Publications

Compelling Arbitration in the Trial Court

State Bar of Texas Litigation Section >>

Things to Consider Before Filing a Petition to Vacate an Arbitration Award

State Bar of Texas Litigation Section >>

The Intersection Between Arbitration and Litigation in Texas

State Bar of Texas 30th Annual Advanced Civil Trial Course, Chapter 7, Fall 2007 >>



Mark Trachtenberg

Partner

Houston


1 Houston Center
1221 McKinney, Suite 2100
Houston, Texas 77010
T +1 713.547.2528
F +1 713.236.5567

Areas of Practice

Education

  • J.D., Yale Law School, 1998, Editor, Yale Law Journal
  • B.A., University of Pennsylvania, 1994, summa cum laude; Phi Beta Kappa

Bar Admissions

  • Texas

Judicial Clerkships

Law Clerk, the Honorable Lee H. Rosenthal, United States District Judge for the Southern District of Texas (1998-99)

Mark Trachtenberg’s ability to craft a “big picture” legal strategy from the inception of litigation through the final appeal has led to his involvement in some of the most complex and high-stakes litigation in the state, ranging from the landmark school finance case to a multi-billion dollar fraudulent transfer lawsuit in the Southern District of Texas. In the school finance case, he was the architect of a successful challenge to the constitutionality of the Texas school finance system, crafting a strategy that proved successful before a Democratic trial judge and an all-Republican Texas Supreme Court.

Mr. Trachtenberg, a Yale Law School graduate, excels at collaborating with trial counsel to win either before trial (through dispositive motions and challenges to the opposing party’s expert testimony), during trial (through jury charges and trial briefs), and after trial (through post-trial motions), while ensuring error is preserved. In the appellate courts, Mr. Trachtenberg identifies, develops, and presents his clients’ most persuasive arguments.

Mr. Trachtenberg, who is board certified in civil appellate law by the Texas Board of Legal Specialization, has helped his clients achieve a successful resolution of their disputes in a wide range of matters, including the following representative examples:

  • Persuaded the Texas Supreme Court to strike down the Texas public school finance system on constitutional grounds.  This decision was the culmination of a four and one-half year effort, including a previous successful appeal to the Supreme Court and a successful five-week bench trial upon remand. Neeley v. West Orange-Cove C.I.S.D., 176 S.W.3d 746 (Tex. 2005).

  • Obtained reversal from the Texas Supreme Court of a $14 million products liability judgment arising out of a fire because the plaintiffs' expert's causation testimony was scientifically unreliable. Whirlpool v. Camacho, 2009 WL 4728004, -S.W.3d.- (Tex. Dec. 11, 2009).

  • Obtained reversal of class certification in a suit where appellees were authorized to represent a class of hundreds of thousands of Texas-based music club members who sought recovery of the late fees they had paid on their compact disc purchases. 

  • In a case involving a collegiate athlete's eligibility to participate in a swimming competition, persuaded the Texas Supreme Court to expressly disapprove of the lower courts' conclusion that the NCAA had no right to intervene in the litigation. The opinion significantly strengthens the NCAA's hand in ensuring that its interests and the interests of its member-institutions are protected in athlete eligibility litigation across the country. 

  • Obtained a writ of mandamus from the Houston Court of Appeals directing the trial court to compel the arbitration of claims against a brokerage firm in the face of plaintiffs' mental incapacity defense.

  • Upheld multi-million dollar attorneys’ fee award in school finance case in the face of the State’s declaratory judgment act challenges.

  • Successfully persuaded trial court to reconsider and withdraw summary judgment dismissing client's multi-million dollars claims.  Obtained summary judgment against adversary's multi-million dollar counterclaims.  Jones v. Brass, No. 99-01743 (113th Dist. Ct., Harris County, Tex.) Ultimately obtained very favorable settlement for client.

  • Obtained reversal of a class action certification for class of 350,000 employees.

  • Acting as Special Assistant Disciplinary Counsel for the State Bar of Texas, successfully defended on appeal a grievance action against an attorney based on a violation of lawyer advertising rules.

Professional Recognition

  • Board Certified in Civil Appellate Law, Texas Board of Legal Specialization
  • Member, American Law Institute
  • Named as a Top Lawyer in Houston by H Texas magazine (2009)
  • Selected for inclusion in Texas Super Lawyers - Rising Stars Edition (2004-2009)
  • Named a "Top Professional on the Fast Track" (2005) and a "Lawyer on the Fast Track" (2004) by H Texas magazine

Professional Leadership

  • Board member, The Houston Lawyer editorial board (2005-present)
  • Fellow of the Texas Bar Foundation
  • "Young Leader," United Way of Texas Gulf Coast
  • Frequent speaker at State Bar and Houston Bar Association Continuing Legal Education programs, on a variety of topics, including arbitration-related litigation, the Texas Supreme Court, school finance litigation, and handling the media in a high-profile case
  • Executive Board, Civil Rights Committee, and co-chair of Discrimination Subcommittee for the Anti-Defamation League
  • Special Assistant Disciplinary Counsel, Texas Commission for Lawyer Discipline (2003-2004)
  • Appointed as a Hearing Officer by Mayor Bill White for administrative appeals from denial or suspension of certain business permits

Selected Representative Experience


Whirlpool v. Camacho, 298 S.W.3d 361 (Tex. 2009)
Obtained reversal from the Texas Supreme Court of a $14 million products liability judgment arising out of a fire because the plaintiffs’ expert’s causation testimony was scientifically unreliable. The Court held that both Texas tests for reliability – the “analytical gap” test and the Robinson-factor test – typically should be used in evaluating expert testimony, and that an expert must offer a convincing explanation for failing to test critical aspects of his theories when such testing is possible.

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.

United States of America v. WTH
Following a 15-count indictment charging him with conspiracy, mail fraud, wire fraud and money laundering, we represented a prominent lawyer, who had recovered millions of dollars for his clients in toxic tort lawsuits. The indictment alleged payment of bribes and kickbacks to two employees of The Hartford in connection with the settlements of these lawsuits. After a 6-week trial, the judge declared a mistrial when the jury was unable to reach a unanimous verdict. The case involved thousands of documents, more than 30 witnesses, and numerous complex motions. The 5th Circuit has stayed any retrial pending determination of our appeal from the denial of a double jeopardy motion.

5436 LLC v. CBS Corp., Civ. A. No. H-08-3097 (S.D. Tex. Feb. 19, 2009)
Persuaded a federal district court to deny a defendant’s motion to dismiss CERCLA claims for lack of subject matter jurisdiction or to compel arbitration.

Kaiser-Francis Oil Co. v. State of Oklahoma ex rel. Commissioners of the Land Office, 294 Fed. Appx. 900 (5th Cir. 2008)
Persuaded Fifth Circuit to affirm bankruptcy court's dismissal of adversary proceeding, which involved the question of whether our client's oil and gas claims had been discharged through constructive notice of a bankruptcy court proceeding.

Citigroup Global Markets, Inc. v. Brown, 261 S.W.3d 394 (Tex. App.–Houston [14th Dist.] 2008, orig. proceeding)
In a consolidated appeal and original proceeding, obtained a writ of mandamus directing the trial court to compel the arbitration of claims against a brokerage firm in the face of plaintiffs’ mental incapacity defense.

H&M Oil & Gas L.L.C. v. Brazos 440 Partners, L.P., 386 B.R. 631 (W.D.Tex. 2008)
Successfully obtained dismissal of a creditor's bankruptcy appeal on standing and mootness grounds.

Neeley v. West Orange-Cove Consolidated Independent School District, 228 S.W.3d 864 (Tex. App. - Austin 2007, pet. denied)
Upheld on appeal a multi-million dollar award of attorneys’ fees in a school finance case, in the face of the State’s Declaratory Judgment Act challenges.

Broesche v. Jacobson, 218 S.W.3d 267 (Tex. App. - Houston [14th Dist.] 2007, pet. denied)
Successfully defended on appeal a summary judgment, sanctions order, and fee award for an interpleading party in a dispute over the interpretation of a divorce decree.

In re Schoelpple, 14-06-01038-CV, 2007 WL 431877 (Tex. App. - Houston [14th Dist.] Feb. 8, 2007, orig. proceeding) (mem. op.)
Successfully defended a challenge by mandamus to an order granting a grandparent access to his four-year old grandchild; in a rare departure from the customary summary denial, the court of appeals issued a five-page memorandum opinion denying the petition and affirming the grandparent’s right of access.

Brooks v. Chevron USA Inc., No. 13-05-00029-CV, 2006 WL 1431227 (Tex. App. - Corpus Christi May 25, 2006, pet. denied) (mem. op.)
Persuaded the trial court to dismiss a case alleging environmental contamination in a residential neighborhood, and successfully defended the trial court’s order on appeal.

Jones v. Brass, No. 99-01743 (113th Dist. Ct., Harris County, Tex.)
Obtained reinstatement of the plaintiff’s claims following an adverse summary judgment, won summary judgment for the plaintiff dismissing one defendant’s counterclaims, successfully defeated an interlocutory appeal by two out-of-state defendants of the trial court’s denial of their special appearance, and ultimately achieved a very favorable settlement for the plaintiff in a breach of a commercial contract, fraudulent transfer and conspiracy case.

Pintail Production Co. v. Osprey Petroleum Co., Nos. 13-06-069-CV, 13-06-151-CV, 2006 WL 1030150 (Tex. App. - Corpus Christi Apr. 20, 2006, no pet.) (mem. op.)
In an oil and gas dispute, obtained dismissal of an accelerated appeal and a related petition for writs of injunction and mandamus.

Harvest House Publishers v. The Local Church, 190 S.W.3d 204 (Tex. App. - Houston [1st Dist.] 2006, pet. denied)
In an interlocutory appeal following the trial court’s denial of summary judgment, obtained rendition of a take-nothing judgment for a media defendant in a defamation case.

Neeley v. West Orange-Cove Consolidated Independent School District, 176 S.W.3d 746 (Tex. 2005)
Persuaded the Texas Supreme Court to strike down the Texas public school finance system on constitutional grounds; this decision was the culmination of a four- and-a-half year effort, including a previous successful appeal to the Texas Supreme Court and a successful five-week bench trial.

BMG Direct Marketing, Inc. v. Peake, 178 S.W.3d 763 (Tex. 2005)
Won reversal of an order that certified a class of hundreds of thousands of Texas-based music club members who sought recovery of late fees paid on their compact disc purchases.

Trigeant Holdings, Ltd. v. Jones, 183 S.W.3d 717 (Tex. App. - Houston [1st Dist.] 2005, pet. denied)
Successfully defended two out-of-state entities’ interlocutory appeal of the denial of their special appearances by persuading the court of appeals that the entities committed acts in Texas for which they were potentially liable under the Uniform Fraudulent Transfer Act.

Schott Glas v. Adame, 178 S.W.3d 307 (Tex. App. - Houston [14th Dist.] 2005, pet. denied)
Obtained reversal of an order denying a special appearance resulting in the dismissal of an action brought by thousands of plaintiffs against a major German manufacturer.

National Collegiate Athletic Association v. Yeo, 171 S.W.3d 863 (Tex. 2005)
In a case involving a collegiate athlete’s eligibility to participate in a swimming competition, persuaded the Texas Supreme Court to expressly disapprove of the lower courts’ conclusion that the NCAA had no right to intervene in the litigation; the opinion significantly strengthened the NCAA’s hand in ensuring that its interests and the interests of its member-institutions are protected in athlete eligibility litigation across the country.

Tribble & Stephens Co. v. RGM Constructors, LP, 154 S.W.3d 639 (Tex. App. - Houston [14th Dist.] 2004, pet. denied)
Obtained reversal of a summary judgment in dispute over interpretation of a construction contract.

United States ex rel Graves v. ITT Educational Services, Inc., 111 Fed. Appx. 296 (5th Cir. 2004)
Successfully defended on appeal a district court’s dismissal of a case raising novel issues of law under the False Claims Act.

Rodgers v. Commission for Lawyer Discipline, 151 S.W.3d 602 (Tex. App. - Fort Worth 2004, pet. denied)
Acting as Special Assistant Disciplinary Counsel for the State Bar of Texas, successfully defended on appeal a judgment sanctioning an attorney for a violation of lawyer advertising rules.

Kubala Public Adjusters, Inc. v. Unauthorized Practice of Law Committee for Supreme Court of Texas, 133 S.W.3d 790 (Tex. App. - Texarkana 2004, no pet.)
Acting on behalf of the State Bar of Texas, successfully defended against an appellate challenge to an injunction entered against public insurance adjusters, prohibiting the adjusters from conducting certain business activities found to constitute the unauthorized practice of law.

West Orange-Cove Consolidated Independent School District v. Alanis, 107 S.W.3d 558 (Tex. 2003)
Obtained a ruling reinstating a constitutional challenge to Texas’ public school finance system, following the lower courts’ dismissal of the case on ripeness grounds.

Reversal of Class Certification Order Against Major National Retailer
Won reversal of a class certification order that certified a class of 350,000 employees against major national retailer.

Montgomery v. O’Quinn, No. 99-47502, (189th Dist. Ct., Harris County, Tex.)
In a breach of contract suit seeking $120 million in damages against an attorney and law firm, assisted trial counsel in formulating trial strategy, took responsibility for all law matters, filed and argued numerous pre-trial motions (including summary judgment motions, motions concerning privilege, and other discovery matters), and prepared the jury charge.

Online Publications

07/17/2009 - Drop the Lifetime Tenure for Justices on High Court
Houston Chronicle
Wouldn't it be nice if the words “Supreme Court confirmation hearings” weren't so often found in the same sentence as “circus”? The Sotomayor hearings are hardly changing the situation. A big-top atmosphere pervades the hearings, even though the outcome is virtually assured.

12/01/2008 - Failure to List Claim in Bankruptcy Schedule Does Not Require Dismissal of Claim Under Judicial Estoppel Doctrine
The Fifth Circuit recently elaborated on the scope of the judicial estoppel doctrine when a debtor fails to list an affirmative claim for damages in its bankruptcy schedule. In Kane v. National Union Fire Ins. Co., 535 F.3d 380 (5th Cir. 2008), Chapter 7 debtors, Stuart and Lisa Kane, brought a pre-petition personal injury action for injuries arising from an auto accident, but failed to list the lawsuit in their bankruptcy schedules. After the bankruptcy court granted the Kanes a no-argument discharge, the personal injury defendants moved for summary judgment on the Kanes’ claims, arguing that the Kanes should be judicially estopped from pursuing their lawsuit on account of their failure to list it as an asset in the bankruptcy proceedings.

10/16/2008 - Trial Court Arbitrability Decisions
Hot Topics for Trial Lawyers, The Litigation Section of the State Bar of Texas

08/01/2008 - How to Bust or Follow Through With an Arbitration
Advanced Civil Trial Course, State Bar of Texas, August/September 2008

07/15/2008 - Analysis of Records Hold Issues and Case Law on the Duty to Preserve Data
This memorandum provides an overview of the current state of the law regarding the duty to preserve documents and data.

03/14/2008 - Compelling Arbitration in the Trial Court
State Bar of Texas Litigation Section

01/14/2008 - Things to Consider Before Filing a Petition to Vacate an Arbitration Award
State Bar of Texas Litigation Section

10/17/2007 - The Intersection Between Arbitration and Litigation in Texas
State Bar of Texas 30th Annual Advanced Civil Trial Course, Chapter 7, Fall 2007

10/16/2006 - Risky Business: Altering the Scope of Judicial Review of Arbitration Awards by Contract
As published in Texas Bar Journal, October 2006

09/08/2006 - Arbitration-Related Litigation and Appeals

08/28/2006 - "Texas Supreme Court Update," State Bar College Summer School (July 2005)

08/28/2006 - "The Class Action Fairness Act of 2005: The Federalization of Class Actions"
The Appellate Advocate, Vol. 17, No. 4 (Spring 2005)

11/28/2005 - Analysis of Texas Supreme Court’s opinion in Neeley et al. v. West Orange-Cove et al.

10/05/2005 - Analysis of Records Hold Issues and Case Law on the Duty to Preserve Data
This memorandum provides an overview of the current state of the law regarding the duty to preserve documents and data.

01/01/2005 - Texas School Finance Litigation: Past, Present and Future
Lecture before the Barbara Jordan/Mickey Leland School of Public Affairs, the Thurgood Marshall School of Law and the College of Education at Texas Southern University, January 2005

01/01/2003 - "The Texas Supreme Court Continues to Tighten the Noose on Class Actions"
Texas Bar Journal, Vol. 66, No. 1 (January 2003)