Mindy Harper
Mattress Firm senior counsel Mindy Harper had been the head of litigation for the Houston-based bedding company for only a few months when she attended an engagement party for her boss in January 2017 at the home of colleague Daria Russell.
Within minutes of arriving, however, the evening of celebration turned serious when Russell, a senior counsel over corporate matters, informed Harper of an urgent crisis involving its largest supplier, Tempur-Pedic, that threatened the financial livelihood of their business.
“Daria whisked me into her study, filled me in the details and we got to work on her upstairs desk crafting a response to one of Tempur’s letters,” Harper said.
The two companies were involved in heated contract discussions when Tempur decided to immediately terminate its relationship and cancel all of Mattress Firm’s orders – on the eve of Mattress Firm’s hugely profitable Presidents Day sale.
“Mattress Firm’s litigation with Tempur-Pedic had major implications for both sides,” said Hicks Thomas partner John Thomas, who worked with Harper on various litigation matters. “Immediate stoppage of the flow of inventory … just before one of the biggest retailing days in the mattress industry … had the potential of causing major irreparable harm to Mattress Firm.”
Back and forth, Mattress Firm and Tempur-Pedic traded threats and offers. A temporary agreement was reached.
“It was intense and challenging, and the immediate threat to the business was averted,” Harper said. “But I knew that would not be the end of it, and it was quite an introduction to the craziness that would follow.”
News of the dispute spread among the financial press and Tempur-Pedic’s stock plunged, resulting in a nearly $1 billion decline in market capitalization. State and federal lawsuits alleging breach of contract, trademark infringement and false advertising followed. The litigation extended throughout 2018 and into 2019.
Harper as chair of the Houston Boychoir Benefactors’ Luncheon earlier this year
During this same time period, Harper played a significant role in Mattress Firm’s $3 billion corporate bankruptcy and restructuring by providing the necessary documentation to bankruptcy counsel and helping renegotiate real estate leases. That was followed by the COVID-19 pandemic, which led to scores of real estate disputes and other legal and operational issues.
“Our general counsel, Kindel [Nuno], told me when she hired me that there was never a dull moment for the legal department,” Harper said. “She was absolutely right, and I have loved it all.”
The Association of Corporate Counsel’s Houston Chapter and The Texas Lawbook, citing Harper’s extraordinary achievements during the past three years, are awarding the SMU Dedman School of Law alum with the 2020 Houston Corporate Counsel’s Senior Counsel of the Year Award.
“Mindy has overseen a broad range of litigation on behalf of the company, including legacy litigation from prior acquisitions, personal injury claims and lease disputes generated from the company’s extensive real estate portfolio,” said Thomas, who nominated Harper for the award.
Premium Subscribers: Go here for an exclusive Q&A with Mindy Harper in which she provides personal insight into her life, how she selects outside counsel and key things outside counsel should know about her. For information on premium subscriptions, including marketing and advertising benefits please contact Brooks Igo at brooks.igo@texaslawbook.net .
Going into 2019, the number of lawsuits pending at Mattress Firm was at an all-time high.
“With a surprisingly small in-house legal staff overseeing business litigation for a $3.5 billion company, during 2019, Harper’s proactive case management efforts proactively closed more than 60 matters through a strategy to reduce the overall number of pending matters,” Thomas said. “This driven strategy resulted in significant reduction in litigation cost and risk but enabled business managers to focus on business development without distractions associated with litigation discovery process and trials.”
Harper is one of three Mattress Firm in-house counsel being honored with Houston Corporate Counsel Awards. Mattress Firm GC Kindel Nuno is the General Counsel of the Year and Daria Russell is also Senior Counsel of the Year – both in the small legal department category.
On average, Harper has between 50 and 60 active litigation matters on her plate spread out over about a dozen states and manages about 10 outside law firms that are handling those cases.
“Mindy approaches our litigation portfolio with a business mindset and appropriate creativity,” Nuno told The Texas Lawbook. “More than once, she has inherited voluminous caseloads through our acquisitions of other companies, normally after she’s whittled our then-existing case load down to manageable levels, and has taken it in stride every time.
“Mindy is professional and amicable in all aspects of her practice, which has fostered a significant amount of respect for her and her guidance throughout our organization,” Nuno said.
With son Coleman at her graduation from law school
Harper was born and raised in Houston – the northwest side of town in the Cy Fair area, to be specific. Her mother is a banker and works as a loan compliance analyst for Comerica Bank. Her dad worked in retail when Harper was growing up and later became a real estate agent.
“My dad retired in 2015 after being diagnosed with advanced kidney disease,” she said. “He moved in with us after the diagnosis, and as a result he now mediates household disputes and keeps our two rescue dogs company for a living.”
Harper’s cousin, Zach Hughes, is an in-house counsel at Chevron. Hughes’ wife, Beth, is a lawyer at Morgan Lewis.
“My dad spent one semester in law school, but I was born and my parents married the summer before my dad’s junior year in college, and I think the realities of having a young family thwarted his law school effort fairly quickly,” she said. “His first semester books remained on our bookshelf for years afterwards, and I always attribute the idea of being a lawyer to those books and the accompanying feeling of a family pursuit left unfinished.”
Harper received a bachelor’s degree in journalism from Texas A&M in 1997 and her law degree from SMU Dedman in 2001.
“I was an unabashed newspaper nerd in high school and loved asking the ‘who-what-when-where-why-how’ questions, and then crafting stories from those answers,” she said. “Law school was always in the back of my mind, but it seemed too lofty a goal during my first couple of years at A&M. Eventually I decided to take the leap and was drawn to SMU because of its smaller, more personal environment.”
Several law firms recruited Harper, but she chose Norton Rose Fulbright “because of the firm’s litigation reputation and history.” During her seven years at the firm, she worked on everything from the massive Enron ERISA litigation, individual longshore workers’ compensation disputes and several personal injury and commercial cases.
Harper remembers her first trial as lead counsel. She represented an insurance company against a longshoreman in a workers’ compensation case before an administrative law judge in Louisiana.
The plaintiff, who worked as a private security guard in Iraq, was injured in a fight with a soldier and sought a six-figure payday.
“I was meticulously prepared with detailed notes on the law and the facts,” she said. “The first thing I did when I walked into court was spill water all over my notes. The attempt to look intimidating went right out the door at the start.”
Harper recovered, however, and won the two-day trial.
“The case wasn’t about the money but about the bad precedent it would set if we lost,” she said. “And it taught me to be prepared for the unexpected.”
A year later, Harper was back in court representing another insurance company in a case in which a highly compensated employee claimed she was permanently disabled because of injuries she sustained on the job. The worker sought $1.7 million in damages.
Through cross-examination of the plaintiff and the plaintiff’s experts, Harper showed that the employee could easily return to work and won the case.
While Harper said she loved her time at Norton Rose Fulbright, she was ready for a change.
“I felt going in-house would be a better long-term fit for my personality and skillset, where I would have more opportunities for collaboration and impacting a business as a whole, as opposed to fighting individual battles,” she said.
In 2008, Harper joined Cooper Industries – now Eaton Corp. – as senior counsel for litigation. She handled the publicly-traded company’s commercial, product liability and intellectual property docket for more than six years.
Baker Hughes hired Harper as risk management counsel in 2014.
In 2016, at the urging of her friend and former Norton Rose Fulbright colleague Daria Russell, Harper joined Mattress Firm as senior counsel over litigation.
With colleague Daria Russell who urged her to join Mattress Firm
When Harper took the job, she had no idea that a major dispute between Mattress Firm and Tempur-Pedic was brewing.
Mattress Firm executives were upset with the terms of their contracts with Tempur and informed Tempur officials that they wanted either a new contract or they would terminate their relationship.
In response to those informal discussions between the two businesses, Tempur terminated its contract and canceled orders in progress for Mattress Firm’s 3,500 stores throughout the U.S.
As mentioned earlier, Tempur did this only a few days before one of the biggest revenue weekends of the year for Mattress Firm – Presidents Day.
The two companies made threats of litigation known to each other and eventually came to a temporary mutual understanding.
“I actually learned about it when I arrived at Daria’s house for Kindel’s engagement party,” she said. “While we were able to resolve the initial dispute and enter into a voluntary transition agreement fairly quickly, it became clear a few weeks later that litigation was on the horizon.”
Mattress Firm sued Tempur in Harris County for breaching the transactional agreement by delaying deliveries and sought $50 million in damages.
A week later, Tempur filed a trademark infringement and false advertising lawsuit against Mattress Firm seeking $36 million in damages.
With son Coleman at his high school graduation
A collateral piece of the main litigation with Tempur-Pedic involved filing lawsuits to fend off competitor attempts to capitalize on this ongoing battle. These cases include a Lanham Act claim filed against competitor Denver Mattress for false and misleading advertisements that specifically mentioned Mattress Firm. Another case involved claims of false advertising against Tuft & Needle, another competing mattress manufacturer.
Before it was over, there were 14 separate lawsuits filed in states from New York to California and Texas to Florida.
To wage the war, Harper and Mattress Firm hired Hicks Thomas, a 27-lawyer litigation boutique based in Houston.
“Handling this type of ‘bet the company’ case required a steady hand on the part of in-house counsel,” Thomas said. “The management of this highly publicized, multijurisdictional battle was a complex and substantial task, especially for a newcomer to the company. Mindy learned the company and its business in short order.”
Harper coordinated the in-house resources needed to gather evidence, produced documents and provided access to key witnesses and evidence. In addition, she managed external news media coverage of the litigation and internal communications regarding management questions and expectations through the entire process.
“Mindy was the quintessential ‘grace under fire’ since the date she started at the company,” Thomas said. “The ability to be the sole manager of an extensive docket involving such a broad range of subject matters is a testament to Mindy’s talent and perseverance.”
By June 2019, Mattress Firm had resolved every piece of this major litigation and renewed its relationship with Tempur-Pedic by signing a new long-term supply agreement.
“Mindy’s oversight and litigation management skills were crucial to the success of the litigation,” Nuno said.
Harper said her “most important work” at Mattress Firm right now is “managing our COVID-19 real estate dispute docket and helping my teammates navigate the countless legal and operational challenges we currently face.
“We operate 2,400 stores in 49 states,” Harper said. “So the biggest challenge has been staying on top of state and local laws and regulations impacting store closure and operational requirements, labor and employment considerations, liability and compliance issues.”