Terry D. Kernell
Partner
Terry Kernell focuses his practice on complex commercial litigation, although he often lends his experience and expertise in probate litigation and personal injury matters. With nearly 30 years of experience handling cases in federal and state courts and domestic and international arbitrations, he has served as lead counsel for both plaintiffs and defendants, individuals and businesses, in a wide variety of cases in industries including energy, health care, banking and finance, commercial and residential real estate and construction, and entertainment. In fact, Terry would be hard-pressed to think of an industry he hasn’t dealt with in some shape or form. His experience includes business contracts and torts, trade secrets, antitrust, and qui tam claims under the federal False Claims Act. He has been recognized on the Texas Super Lawyers listing for his work as a top business litigator in the state every year since 2008.
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The diversity of his practice is a reflection of his inherent curiosity in the things that matter to his clients, and his recognition that something new and helpful is discovered in every case, for every client. His goal is always the same—furthering his clients’ interests by finding solutions both creative and practical. His approach has led to a high level of success for his clients.
Success often does not come easy. In addition to his unwaveringly zealous advocacy for their positions, those who have worked with Terry have also come to expect him to always give the unvarnished truth, whatever that may be. Terry sees that as an indispensable part of his job of solving his clients’ issues as efficiently and expeditiously as possible. He believes the best decisions are made after the hardest conversations.
Terry received his law degree from Baylor University School of Law, graduating second in his class. From there, he practiced at Mayer Brown in Houston for 16 years. After working with Rusty for three years, he cofounded the Commercial Litigation and Employment Law boutique of Hoover Kernell LLP in 2010. There, he continued representing and counseling businesses, business owners, and individuals in complex commercial litigation matters. He returned to Rusty Hardin & Associates in 2017, where he now serves as Managing Partner.
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Education
- J.D., with honors, Baylor University School of Law, 1991
- B.A., with honors, University of Oklahoma, 1988
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Representative Cases
- Energy
- Defending publicly traded oil and gas company in $100 million dispute arising from operations of Participation Agreements and Joint Operating Agreements in Wild Basin Play in North Dakota.
- Trial co-counsel with Rusty Hardin defending oilfield services company and its president against breach of contract and fiduciary duty claims. Conducted all aspects of trial preparation and participated fully at trial, including opening statements, witness examinations, and bifurcated closing arguments. Despite adverse jury findings, post-trial motions drove a pre-judgment mediated settlement of 1/10th of the verdict.
- As lead trial counsel, obtained summary judgment dismissing age discrimination claim against precision oilfield equipment company. As lead appellate counsel, obtained unanimous per curium affirmance from the Fifth Circuit Court of Appeals.
- Finance
- Pursued long-running horizontal conspiracy antitrust claims on behalf of doctor-owned hospital against major hospital system. Conducted all aspects of discovery and case and trial preparation and intense coordination with co-counsel, co-plaintiff counsel firms, and experts. Client’s case settled extremely favorably the night before jury selection. Jury returned a defense verdict against non-settling co-plaintiffs following a six-week trial.
- Co-lead and lead counsel defending country’s largest privately owned lender in the highly regulated residential mortgage industry against billions in False Claims Act and FIRREA claims pursued by the Department of Justice. Developed case strategy and oversaw all aspects of the defense through a month-long jury trial, including managing massive party and non-party document/electronic discovery, depositions, court filings, hearings, court and opposing counsel communications, depositions, expert issues, settlement discussions, and pretrial matters. Coordinated the defense among multiple firms/lawyers under intense budget, staffing, and timing pressure.
- Lead counsel for national financial institution suing for former employees’ theft of confidential information. Case settled almost immediately with client obtaining permanent injunctive relief, significant and detailed competitive restrictions, and a substantial payment.
- Defended publicly traded auto maker related automobile finance company in $60 million case brought by bankrupt dealer alleging conspiracy and intentional harm. Defense verdict rendered following two-week federal jury trial.
- Formed and managed team of 10 associates and five contract attorneys reviewing and analyzing 1,000,000+ pages of documents as lead counsel in US$25+ million breach of fiduciary duty and conspiracy case against mezzanine finance lender.
- Represented foreign bank in three opt-out securities fraud cases arising from the collapse of Enron.
- Real Estate & Construction
- Lead counsel for residential mortgage lender defending claims by Government Sponsored Entity alleging violations of servicing agreements. After two emergency hearings and the negotiation of limited preliminary injunction terms, government claims were dismissed with no monetary recovery.
- Assisted in defense of major Houston real estate developer and investors in suit arising from alleged improper impediments to access to downtown Houston tunnel system.
- Healthcare
- Lead counsel defending new healthcare related company and six employees against former employer’s unfair competition claims. Case settled on terms satisfactory to clients and allowing the entity and all employees to continue to compete.
- Co-counsel with Rusty Hardin defending major Houston Medical Center hospital system from fraud and other claims and asserting counterclaims in series of lawsuits in multiple courts seeking multiple tens of millions in damages arising from the proposed development of suburban hospital campuses.
- Lead counsel in negotiating and drafting share purchase agreement between members of closely held healthcare related company, thereby resolving and avoiding potential litigation.
- Other
- Defending Rice University in federal claims arising from dismissal of student for alleged illegal activity.
- Lead counsel defending national beverage company against alleged Americans with Disabilities Act violations. Obtained dismissal of both the original and amended complaint on the pleadings.
- Co-lead counsel for publicly traded company asserting unfair competition claims and defending antitrust counterclaims. Case settled for substantial payment to client and competitive restrictions on defendants.
- Lead counsel for nationwide franchisee and salon product distributor defending breach of contract and fiduciary duty claims. Case settled at mediation for less than 1/50th of the eight figures sought in damages. Terms included complex division of products, trademarks, associated intellectual property, and other non-standard terms.
- As replacement lead counsel, pursued claims against entertainment management company and owner. Implemented discovery and motion strategy that avoided the expense of trial and culminated in obtaining a $2.1 million judgment for discovery abuse.
- Lead counsel defending NFL player against claim for breach of personal appearance contract. Case settled satisfactorily despite difficult economics due to the size of the claim and cost of defense.
- Researched and advised international client considering expanding its operations into several states and state/federal territorial waters on corporate structure, risk, liability, and jurisdictional issues.
- As replacement lead counsel, defended litigation by minority member against closely held professional consulting company and its majority members. Obtained expedited targeted discovery and aggressively sought emergency relief against plaintiff, which drove courtroom settlement just before emergency hearing, despite earlier failed mediation. Terms included substantial payment to majority members, expulsion of minority member, complex asset division, and cross-indemnities.
- Representing independent executor pursuing and defending claims to assets including tax refund claims, securities, escheated and on-hand dividends, and oil and gas interests and escheated and on-hand royalties in six states, arising from lawsuits, transactions, and distributions dating to 1984 under four wills, one codicil, and four residuary trusts pending simultaneously in four separate estates.
- Defended Rice University in federal claims arising from dismissal of student for alleged illegal activity.
- Defending Rice University against Title IX reverse-sexual discrimination claims for disciplining male student following sexual misconduct investigation.
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Court Admissions
- State of Texas
- United States District Court for the Southern District of Texas
- United States District Court for the Southern District of Texas
- United States District Court for the Southern District of Texas
- United States District Court for the Southern District of Texas
- United States Court of Appeals for the District of Columbia
- United States Court of Appeals for the Fifth Circuit
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Professional Memberships
- State Bar of Texas
- Houston Bar Association
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Honors & Awards
- 2008-2020 – Texas Super Lawyers, Thomson Reuters
- 2006-2007 – Texas Rising Stars, Thomson Reuters
