In the News

Haynes and Boone in Law360: Chancery Tosses Claims Over $100M Sanchez Energy Deal

A Delaware Chancery judge on Tuesday threw out derivative claims that Sanchez Energy Corp. overpaid in an allegedly inside $100 million deal for oil and gas rights to the Tuscaloosa Marine Shale, ruling the suing shareholders didn’t make a pre-suit demand on the board nor show why they couldn’t. >>

Thad Behrens in Bloomberg BNA's Securities Regulation & Law Report: Justices Could Take Middle Ground Over §11 Liability for Opinion Statements

By all indications at oral argument before the U.S. Supreme Court Nov. 3, issuers won't automatically be able to avoid liability under 1933 Securities Act Section 11 for stating their sincerely held opinions or beliefs in a registration statement if those statements ultimately are shown to be false (Omnicare Inc. v. Laborers Dist. Council Constr. Indus. Pension Fund, U.S., No. 13-435, 11/03/14). >>

Haynes and Boone in Mealey's Litigation Report - Class Actions: Judge Refuses to Certify Class After Finding Expert's Analyses Unreliable

A federal judge in Texas on Sept. 30 refused to certify a class for property owners near a refinery formerly owned by BP Products North America Inc., after finding that a real estate trend analysis and regression model analysis conducted by their expert were unreliable and could not be used to establish causation and damages. >>

Haynes and Boone in Law360: BP Beats Damages In $10B Toxic Emission Test Case

Thursday's decision comes a little more than a week after BP defeated class certification in a federal lawsuit over air pollution tied to the company's operation of the Texas City refinery. >>



Recent Publications

Key Developments in Privacy and Data Security

Cyber threats are inarguably on the rise, and regulators and law enforcement are stepping up their efforts to ensure that companies are managing personal data responsibly, creating a perfect storm of risk. More and more, our clients are asking, “What can we do to protect ourselves?” The answer? Be aware of the risks, understand the legal implications, and prepare for the inevitable. >>

A Desk Guide to Data Protection and Breach Response - Part 7

In this installment of our special series, A Desk Guide to Data Protection and Breach Response, we discuss the firestorm of litigation that can arise following a breach and provide practical guidance for preparing for the worst. >>

Delaware Supreme Court Adopts New Board-Friendly Standard for Certain Controlling-Shareholder Buyouts

In an opinion that could substantially affect future controlling-shareholder buyouts, the Delaware Supreme Court on Friday affirmed the Chancery Court’s decision that the business judgment standard of review, rather than entire fairness, should apply to controlling-party takeovers where it is established before trial that certain protections exist. >>

Securities Litigation Year in Review 2013

The Haynes and Boone Securities Litigation Year in Review 2013 outlines recent (and upcoming) Supreme Court decisions as well as notable rulings from federal courts of appeal and district courts in the past year that affect private securities litigation, including the areas of class certification, loss causation, scienter, duty to disclose, pleading falsity, preemption, standing and statutes of limitations. The Review also discusses government enforcement cases and trends, and key state law rulings in shareholder derivative and fiduciary litigation. >>



Thad Behrens

Partner

Dallas


2323 Victory Avenue
Suite 700
Dallas, Texas 75219
T +1 214.651.5668
F +1 214.200.0886

Areas of Practice

Education

  • J.D., McGeorge School of Law, 1997, with great distinction; Valedictorian Award; Outstanding Graduate Award; Order of the Coif; Chief Articles Editor, Pacific Law Journal (now McGeorge Law Review)
  • B.A., Bucknell University, 1990

Bar Admissions

  • California
  • Texas

Court Admissions

  • U.S. District Court for the Northern District of Texas
  • U.S. District Court for the Eastern District of Texas
  • U.S. Court of Appeals for the Fifth Circuit
  • U.S. District Court for the Eastern District of California

Judicial Clerkships

Law clerk for the Honorable Garland E. Burrell, Jr. in the United States District Court for the Eastern District of California, 1997-1998
Thad Behrens

Thad Behrens is Chair of the firm's national Class Action Defense practice, and has helped numerous clients turn a seemingly intractable litigation challenge into a victory.

Mr. Behrens frequently represents companies, directors and officers in securities fraud class actions, shareholder derivative cases, M&A litigation, proxy contest lawsuits, SEC investigations and internal investigations. He also is regularly called upon to represent companies in complex class actions and other commercial litigation, including cases involving consumer disputes, environmental claims and business torts. In 2012, Mr. Behrens was named a Best Lawyer in Dallas, based upon a survey of his peers conducted by D Magazine. He was recognized as a Texas Super Lawyer, 2013-2014.

A former federal law clerk and president of the Dallas Federal Bar Association, Mr. Behrens balances his practice between state and federal courts. He has represented clients in complex business disputes in courts throughout Texas and around the country.

Mr. Behrens' recent experience includes:

  • Denial of Class Certification for the National Football League in Consumer Class Action: Defeated class certification for the National Football League in lawsuit alleging claims of breach of contract and fraud against the NFL and the Dallas Cowboys for allegedly not providing prescribed seats to ticketholders at the Super Bowl XLV game.
  • Denial of Class Certification in Environmental Class Action Related to Alleged Refinery Emission: Defeated class certification for BP Products North America, Inc. in lawsuit alleging that 14,000 residential property owners' property values were diminished by alleged emissions at the company's former oil refinery in Texas City, Texas.
  • Defense of Oil and Gas E&P Company in Shareholder Derivative Lawsuit. Defending a private exploration and production company in a shareholder derivative lawsuit challenging an acquisition of oil and gas working interests.
  • Dismissal of Shareholder Derivative Suit. Represented national dairy processor in shareholder derivative suit alleging that the board of directors breached fiduciary duties in connection with purported antitrust violations by the company. Obtained dismissal of suit on grounds that shareholder failed to make required demand or show that demand was futile.
  • Defense of Accounting Restatement Claims: Defended worldwide pump manufacturer in a securities class action arising from multiple accounting restatements. Obtained order from Dallas federal court denying class certification and granting summary judgment in favor of the defendants. After appellate court remanded case for further proceedings and rejected plaintiffs' damages theory, achieved settlement.
  • Denial of Class Certification and Dismissal of IPO Class Action: Successfully opposed class certification and obtained dismissal of "strict liability" claims under Section 11 of the Securities Act brought against a technology company client. Won affirmance of dismissal on appeal.
  • Proxy Contest Victory: Obtained temporary restraining order against insurgent shareholders who had launched proxy contest to unseat three directors of independent oil and gas company. Restraining order prompted immediate settlement whereby proxy contest was withdrawn.
  • Texas Securities Act Class Action Dismissal: Obtained dismissal on behalf of a chair manufacturer and its officers and directors of class action lawsuit alleging violations of Texas securities laws.
  • Hedge Fund Litigation Win: Obtained complete refund of investment on behalf of hedge fund client in suit for securities violations related to a PIPE transaction.
  • Limited Liability Company Fiduciary Litigation Victory: Prosecuted and defended related fiduciary duty lawsuits in Texas and California between business partners in limited liability company in the pharmaceutical industry. Secured ouster of chief executive officer and installation of new management, after which a favorable settlement was reached.
  • White-Collar Criminal Jury Trial: Defended lawyer against federal criminal charges that he participated in a multi-million dollar bribe and kickback scheme. After the six-week trial, the jury was unable to reach a unanimous verdict and a mistrial was declared.

Mr. Behrens also frequently speaks and writes on issues related to securities litigation, fiduciary litigation and government enforcement. His recent speeches include:

  • "Waking Up to Find a Whistleblower," Haynes and Boone Client Event
  • "D&O Fiduciary Duties in M&A Transactions," Stafford Publishing Webinar
  • "Avoiding the Government's Hot Buttons: A Practical Guide for Public Companies and Executives," Haynes and Boone Client Forum
  • "Hostile Takeovers, Proxy Contests and Shareholder Activism in the 2009 Economic Environment," PriceWaterhouseCoopers LLP Boardroom Group Presentation
  • "Director and Officer Fiduciary Duties in the Insolvency Context," Texas State Bar Advanced In-House Counsel Course
  • "Federal Court Discovery," Texas Bar CLE

Selected Representative Experience


Class Action Against Major Refiner (S. Dist. Tex. 2013)
Defeated class certification in lawsuit alleging that owners' property values were diminished by alleged emissions from a refinery and seeking $10 billion in damages.

Defense of the National Football League in Consumer Class Action
Defeated class certification for the National Football League in lawsuit alleging claims of breach of contract and fraud against the NFL and the Dallas Cowboys for allegedly not providing prescribed seats to ticketholders at the Super Bowl XLV game.

Antitrust Counseling in Proposed Telecommunications Acquisition
Represented AT&T before the DOJ and FCC on antitrust matters related to proposed acquisition of T-Mobile USA, including pre-merger integration counseling and planning.

Financial Services Antitrust Investigation
Representation of leading financial services provider in an investigation by the U.S. Department of Justice's Antitrust Division into alleged antitrust violations in the municipal finance industry.

United States of America v. Hoeffner, No. 4:07-cr-00263 (S.D.-Houston Div. 2010)
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 an insurance company 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.

In re Arena Resources, Inc. Shareholder Litigation
Represented acquired entity, Arena Resources, Inc., and its board of directors in nine shareholder class actions filed in two Nevada state courts, two Oklahoma state courts, and Oklahoma federal court, alleging breaches of fiduciary duty in connection with the board’s approval of the $1.6 billion acquisition of the company by SandRidge Energy, Inc.

Dean Foods Company Derivative Litigation
Represent Dean Foods Company in shareholder derivative litigation in which current and former directors are alleged to have breached their fiduciary duties to the company by participating in, or failing to prevent, violations of U.S. antitrust laws.

Vaalco Energy, Inc. Proxy Contest Litigation
Filed lawsuit alleging securities laws violations on behalf of independent oil company against a hedge fund-led insurgent group that had launched a proxy contest aimed at unseating three of the company’s directors. Obtained temporary restraining order, which prompted immediate settlement whereby insurgent shareholder group withdrew competing nominees to board of directors and cast votes in favor of company’s director nominees.

Flowserve Corporation Derivative Litigation
Obtained dismissal of shareholder derivative suits in New York and Texas alleging that directors and officers breached their fiduciary duties in connection with accounting restatement, merger integration issues, and missed earnings projections.

Flowserve Corporation Securities Litigation
Defending a worldwide manufacturer of pumps, valves and seals for flow control systems in a class action alleging securities fraud arising from accounting restatement, merger integration issues, and missed earnings projections. Obtained an order denying class certification and granting complete summary judgment in favor of the defendants, which was remanded for further proceedings after appeal.

Fleming Companies Securities Litigation
Defended underwriters of a grocery wholesaler's secondary stock offering against a class action alleging accounting misstatements were made in the offering registration statement and prospectus.

Dynegy Inc. Securities and Derivative Litigation
Represented Dynegy Inc. in putative securities class action and in shareholder derivative suits arising from allegations of fraudulent accounting treatment of certain energy contracts and a natural gas transaction, and from purported energy market manipulation.

pcOrder.com, Inc. Securities Litigation
Obtained a dismissal of a putative class action brought under Section 10(b) of the Securities Exchange Act of 1934 against an e-commerce software company, its public subsidiary, and certain directors and officers alleging a lack of internal controls, improper revenue recognition, and undisclosed sales and product problems. Alcina v. pcOrder.com, Inc., 230 F. Supp. 2d 732 (W.D. Tex. 2002). In a companion case under Section 11 of the Securities Act of 1933, we successfully opposed class certification on grounds that the proposed class representatives lacked standing to sue and that the proposed representatives and their counsel were inadequate. Krim v. pcOrder.com, Inc., 210 F.R.D. 581 (W.D. Tex. 2002). We obtained dismissal of the remaining individual plaintiffs’ claims. Krim v. pcOrder.com, Inc., 2003 WL 21076787 (W.D. Tex. May 5, 2003). That ruling was affirmed on appeal by the Fifth Circuit. 402 F.3d 489 (5th Cir. March 1, 2005).

Triton Energy Corp. Securities Litigation
Defended an oil and gas company in a putative class action alleging misrepresentations and omissions regarding the company's oil and gas production prospects, and the status of a bidding process for the company's assets.

The Pinnacle Fund, L.P. v. World Wireless Communications, Inc.
Successfully represented hedge fund as plaintiff in action arising from the defendant company’s failure to register shares with the SEC as required by the offering materials in a PIPE transaction.

Neutral Posture Ergonomics, Inc. Securities Litigation
We obtained dismissal on behalf of a chair manufacturer and its officers and directors of class action lawsuit alleging violations of Texas securities laws, common law fraud and negligent misrepresentation.

Memberships

  • President, Federal Bar Association, Dallas Chapter, 2007-2008
  • Executive Committee, Federal Bar Association, Dallas Chapter, 2003-2009
  • Barrister, Patrick E. Higginbotham Inn of Court, 2010-2013
  • Leadership Dallas Alumni
  • Dallas Bar Association
  • Board of Directors, Dallas Education Foundation

Online Publications

10/24/2014 - Key Developments in Privacy and Data Security
Cyber threats are inarguably on the rise, and regulators and law enforcement are stepping up their efforts to ensure that companies are managing personal data responsibly, creating a perfect storm of risk. More and more, our clients are asking, “What can we do to protect ourselves?” The answer? Be aware of the risks, understand the legal implications, and prepare for the inevitable.

05/08/2014 - A Desk Guide to Data Protection and Breach Response - Special Series
If your business is connected to the Internet, it is vulnerable to attack, either by willful perpetrators intent on exfiltrating your proprietary or sensitive data for their own personal gain, or by casual hackers or hacktivists intending to cause damage to your business.

03/27/2014 - A Desk Guide to Data Protection and Breach Response - Part 7
In this installment of our special series, A Desk Guide to Data Protection and Breach Response, we discuss the firestorm of litigation that can arise following a breach and provide practical guidance for preparing for the worst.

03/19/2014 - Delaware Supreme Court Adopts New Board-Friendly Standard for Certain Controlling-Shareholder Buyouts
In an opinion that could substantially affect future controlling-shareholder buyouts, the Delaware Supreme Court on Friday affirmed the Chancery Court’s decision that the business judgment standard of review, rather than entire fairness, should apply to controlling-party takeovers where it is established before trial that certain protections exist.

01/28/2014 - Securities Litigation Year in Review 2013
The Haynes and Boone Securities Litigation Year in Review 2013 outlines recent (and upcoming) Supreme Court decisions as well as notable rulings from federal courts of appeal and district courts in the past year that affect private securities litigation, including the areas of class certification, loss causation, scienter, duty to disclose, pleading falsity, preemption, standing and statutes of limitations. The Review also discusses government enforcement cases and trends, and key state law rulings in shareholder derivative and fiduciary litigation.

07/09/2013 - The United States Supreme Court Further Cements the Enforceability of Class Action Waivers in Arbitration Agreements
Recently, the United States Supreme Court issued its decision in American Express Co. v. Italian Colors Restaurant, a third opinion in what is now a trilogy of cases upholding the validity of class action waiver clauses in contracts containing arbitration agreements.

01/30/2013 - Securities Litigation Year in Review 2012
The Haynes and Boone Securities Litigation Year in Review 2012 outlines Supreme Court decisions and rulings from Circuit and District Courts that affect securities class action cases, including class certification issues.

In 2012, Haynes and Boone’s Securities Class Action Defense and Shareholder Litigation Practice Group defended targets, directors and acquirors in a number of M&A-related suits. Our docket also included class actions arising from initial public offerings, shareholder derivative suits, minority/majority shareholder cases and limited liability company disputes.

05/23/2012 - Fifth Circuit: Class Arbitration Proceedings Available Only with the Parties’ Consent
On May 18, 2012, the United States Court of Appeals for the Fifth Circuit held in Reed v. Florida Metropolitan University, Inc. that class actions are available in arbitration proceedings only if there is a contractual basis for finding that the parties agreed to class arbitration.

04/12/2012 - Bloomberg BNA Features Haynes and Boone 2011 Securities Litigation Highlights Report
The year 2011 was a remarkable one in securities litigation, with notable decisions from the Supreme Court and a number of interesting rulings from Circuit and District Courts as well.

02/03/2012 - Securities Litigation Year in Review 2011
The Haynes and Boone Securities Litigation Year in Review 2011 outlines Supreme Court decisions and rulings from Circuit and District Courts that affect securities class action cases, including class certification issues.

06/07/2011 - Supreme Court Rejects Fifth Circuit Requirement that Securities Fraud Plaintiffs Must Prove “Loss Causation” at Class Certification Stage
In a unanimous opinion issued yesterday in Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. __ (2011), a securities class fraud action, the Supreme Court held that class certification had been improperly denied by the Fifth Circuit based on the absence of “loss causation.”

05/03/2011 - U.S. Supreme Court Ruling Paves the Way for Companies to Enforce Class Action Waivers in Arbitration Agreements
On April 27, 2011, the United States Supreme Court issued a decision in AT&T Mobility LLC v. Concepcion that ensures that companies will be able to enforce well-drafted class action waiver clauses in consumer contracts containing arbitration agreements – rejecting lower court decisions finding such waiver clauses to be unconscionable. Specifically, the Court held that the Federal Arbitration Act (“FAA”) preempts a California rule that held class action waivers in consumer arbitration agreements to be unconscionable and therefore unenforceable.

01/27/2010 - Federal Court Issues Injunction Requiring Insurer to Advance Defense Costs to Stanford Financial Defendants for DOJ and SEC Proceedings
Yesterday, January 26, 2010, Judge David Hittner of the United States District Court for the Southern District of Texas issued an important opinion in the Stanford Financial case that paves the way for targets of criminal and civil enforcement proceedings to obtain insurance coverage for costs of defending themselves. The decision marks a significant victory for executives who have the misfortune of being caught up in a government prosecution and find themselves otherwise unable to fund their defense.

07/30/2009 - Director and Officer Fiduciary Duties in the Context of Insolvency
As a corporation becomes insolvent or is on the brink of insolvency the fiduciary duties usually owed (directly or indirectly) to shareholders may shift, forcing officers and directors to consider the interests
of creditors to prevent creditor claims for breach of fiduciary duty.

08/01/2005 - Seven on 11: Potential Paths to Early Dismissal of Section 11 Claims