2026 CASE UPDATES

May 22, 2026

UPSTREAM – Case Update

We write to report a development in the case:

We attended an in-person hearing before Judge Hertling to discuss the next steps for the case.

Judge Hertling iterated that he wants to move forward quickly and give compensation to the property owners.

The government advised that the Department of Justice is still reviewing internally whether to file a petition for writ of certiorari to the United States Supreme Court. At this time, the DOJ attorney still does not know what the decision will be. He will advise once a decision is made – which is due by July 8, 2026.

The Upstream team and the DOJ have been discussing how to meet Judge Hertling’s instruction and come up with a plan and process to address the thousands of cases on a large, expedient scale. There have been some preliminary talks, and we hope to see the DOJ’s response soon.

The DOJ attorney claimed that, according to their review, certain properties were not flooded due to the government’s action; and that those properties would have flooded regardless. The DOJ attorney also claimed that several hundred properties were outside of the Upstream pool, and thus the government is not responsible for those. The judge told the DOJ attorney that he can file a motion and bring those properties to his attention. A response will be made if that happens.

The Judge also asked the parties to submit a joint status report by June 29, 2026, and another one by September 14, 2026; to let the Court know what the status of discussion is between the parties. The Judge plans to return to Houston by October and host another conference.

We are very encouraged by the Judge’s comments and will continue to push forward in search of a resolution.

We will report back with any additional developments. As always, please do not hesitate to contact us with any questions or comments.

May 22, 2026

DOWNSTREAM – Case Update

We write to report a development in the case:

We attended a telephone conference before Judge Smith this week to discuss the next steps for the case.

As many of us may know, the case involving the Upstream flooding was recently decided by the Court of Appeals for the Federal Circuit in the homeowner’s favor. During the hearing, Judge Smith discussed the precedential value of the Upstream Court of Appeals’ opinion as it relates to our case. The Judge is very interested in knowing if the government is going to appeal the Upstream Court of Appeals’ opinion to the United States Supreme Court (which could potentially impact our case.

The government attorney advised that the Department of Justice is still trying to decide whether to file a petition for writ of certiorari to the Supreme Court, which is due by July 8, 2026. Once that decision is made, he will advise.

Judge Smith ordered us to confer with the DOJ and prepare to discuss how to move forward with the damages phase of the case. Both sides are to submit a status report on damages issues with the Court on July 14, 2026. Another status conference is scheduled for July 17, 2026.

We will report back with any additional developments. As always, please do not hesitate to contact us with any questions or comments.

April 22, 2026

DOWNSTREAM – Case Update – Court Rules In Our Favor

We write to report a development in the case:
This afternoon, we finally received the long-awaited decision from the Court. We are pleased to report that the Court found in our favor. In the Opinion & Order dated today, Judge Smith wrote the following:

“Accordingly, the Court finds JUDGMENT in favor of plaintiffs and shall be entered upon a determination of damages. The Court also, GRANTS summary judgment in favor of plaintiffs and and DENIES summary judgment in favor of defendant on all motions.”

We Won!

However, we want to remind everyone that this is just the first phase of the case (the liability phase). The second phase–the determination of damages, or how much the government needs to compensate the property owners–is still ahead.

Nonetheless, we are pleased that the Court finally issued this ruling after nine plus years of litigation (since 2017). The Opinion from the judge is 48 pages long and will take us a while to fully digest. Although, for now, we have a positive ruling in our hand.

We want to thank everyone on the Downstream litigation team who fought the good fight with our deepest thanks and gratitude. This is a hard-fought, hard-won result for all of us.

A copy of the Opinion is available here.

As always, please do not hesitate to contact us with any questions or comments.

January 16, 2026

DOWNSTREAM – Case Update

We write to report a development in the case:
On January 15, 2026, the Court called a status conference with the Downstream litigation team and the government attorneys. We attended.

Judge Smith started the conference by citing the recent ruling from the Upstream case (Ablan v. U.S., No. 2023-1363), where the Court of Appeals for the Federal Circuit largely affirmed the Upstream ruling, favorable to the Upstream Plaintiffs/homeowners. Since this decision came from a higher court and also involved the federal government (the Army Corps), that decision has precedential value over the Downstream case as well.

Judge Smith suggested that the parties meet over and discuss the possibility of settlement. Judge Smith also advised that, while he has not issued a ruling yet, he is currently leaning toward the Plaintiffs’ side.

The Downstream litigation team advised that we are amenable of settlement negotiation and welcome the opportunity. The government’s representative attorney, however rejected the idea and stated that the government is not interested in negotiations, despite the Judge’s suggestion (Judge Smith offered it twice during the conference.

Judge Smith stated that, in that case, he will proceed accordingly.
With that, we will await the Court to issue a ruling in the meantime. Although, we encouraged by the Court’s comment during the conference. We shall see how the Court rules.

As always, please do not hesitate to contact us with any questions or comments.