Terry D. Kernell

Partner

P 713-652-9000 | F 713-652-9800
tkernell@rustyhardin.com | vCard

Terry D. 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 and for 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.

Education
- J.D., with honors, Baylor Law School, 1991
- B.A., with honors, University of Oklahoma, 1988
Representative Cases
- Energy
  - Defending a publicly traded oil and gas company in a $100 million dispute arising from the operations of participation agreements and joint operating agreements in North Dakota.
  - Trial co-counsel with Rusty Hardin defending an 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 a summary judgment dismissing an age discrimination claim against a precision oilfield equipment company. As lead appellate counsel, obtained a unanimous per curium affirmance from the Fifth Circuit Court of Appeals.
- Finance
  - Pursued long-running horizontal conspiracy antitrust claims on behalf of a doctor-owned hospital against a 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. The client’s case was settled extremely favorably the night before jury selection. The jury returned a defense verdict against nonsettling coplaintiffs following a six-week trial.
  - Co-lead and lead counsel defending the country’s largest privately owned lender in the highly regulated residential mortgage industry against billions of dollars in False Claims Act and FIRREA claims pursued by the U.S. Department of Justice. Developed the 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 a national financial institution suing for former employees’ theft of confidential information. The case was settled almost immediately, with the client obtaining permanent injunctive relief, significant and detailed competitive restrictions, and a substantial payment.
  - Defended a publicly traded auto-maker-related automobile finance company in a $60 million case brought by a bankrupt dealer alleging conspiracy and intentional harm. The defense verdict was rendered following a two-week federal jury trial.
  - Formed and managed a team of 10 associates and five contract attorneys reviewing and analyzing 1 million plus pages of documents as lead counsel in a $25 million-plus breach-of-fiduciary duty and conspiracy case against a mezzanine finance lender.
  - Represented a foreign bank in three opt-out securities fraud cases arising from the collapse of Enron.
- Real Estate & Construction
  - Lead counsel for a residential mortgage lender defending claims by a 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 the defense of a major Houston real estate developer and investors in a suit arising from alleged improper impediments to access to the downtown Houston tunnel system.
- Health Care
  - Lead counsel defending a new health care-related company and six employees against a former employer’s unfair competition claims. The case was settled on terms satisfactory to the clients and allowing the entity and all employees to continue to compete.
  - Co-counsel with Rusty Hardin defending a major Houston hospital system from fraud and other claims and asserting counterclaims in a 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 a share purchase agreement between members of a closely held health care-related company, thereby resolving and avoiding potential litigation.
- Other
  - Defending Rice University in federal claims arising from the dismissal of a student for alleged illegal activity.
  - Lead counsel defending a national beverage company against alleged Americans with Disabilities Act violations. Obtained a dismissal of both the original and amended complaint on the pleadings.
  - Colead counsel for a publicly traded company asserting unfair competition claims and defending antitrust counterclaims. The case was settled for a substantial payment to the client and competitive restrictions on the 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 an entertainment management company and owner. Implemented discovery and a motion strategy that avoided the expense of a trial and culminated in obtaining a $2.1 million judgment for discovery abuse.
  - Lead counsel defending an NFL player against a claim for breach of personal appearance contract. The case was settled satisfactorily despite difficult economics due to the size of the claim and cost of defense.
  - Researched and advised an 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 a minority member against a closely held professional consulting company and its majority members. Obtained expedited targeted discovery and aggressively sought emergency relief against the plaintiff, which drove a courtroom settlement just before an emergency hearing, despite an earlier failed mediation. The terms included a substantial payment to majority members, expulsion of a minority member, complex asset division, and cross-indemnities.
  - Representing an 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.
  - Defending Rice University against Title IX reverse sexual discrimination claims for disciplining a male student following a sexual misconduct investigation.
Court Admissions
- State of Texas
- 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 Eastern District of Texas
- U.S. District Court for the Western District of Texas
- U.S. Court of Appeals for the District of Columbia
- U.S. Court of Appeals for the Fifth Circuit
Professional Memberships
- State Bar of Texas
- Houston Bar Association
Honors & Awards
- Lawdragon 500 Leading Litigators in America, 2023
- Best Lawyers in America, Commercial Litigation, 2022
- Texas Super Lawyers, Thomson Reuters, 2008-2022
- Texas Rising Stars, Thomson Reuters, 2006-2007

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Terry D. Kernell