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Androvett Blog

by Androvett Legal Media & Marketing at 3:04:00 pm

A Christian missionary and his young family have been granted religious asylum in the United States thanks to the nearly three-year pro bono efforts of lawyers in the Houston office of Sutherland Asbill & Brennan LLP.

Viktor Lim, a native of Uzbekistan, had established a small Baptist congregation in Kazakhstan where he endured arrests, threats, police searches of his home and interrogation for years before being convicted of charges related to his ministry.

“I could not feel certain of the safety of myself or of my family,” he said through an interpreter in an interview with the Houston Chronicle.

Mr. Lim was ordered to leave Kazakhstan, although he had lived there most of his life there. Terrified at their prospects, the Lim family managed to obtain tourist visas and settle in Houston in August 2013. Sutherland attorney David Baay led the effort for asylum, saying he believed  Mr. Lim would face imprisonment on a trumped-up charge if he returned.

On June 2, the U.S. government granted Mr. Lim asylum, and he and his wife and children will be eligible to apply for citizenship in a year.

Mr. Lim said the whole family cried for joy when they received the good news earlier this month.

“This is a great day for Viktor and his family, who have been living here in limbo for almost three years,” Mr. Baay says. “Viktor provided credible evidence of a very real threat to his life and liberty – and that of his family – if he were denied asylum and returned to Kazakhstan.”

A religious rights advocacy group says Protestant Christians are among the most targeted groups in Kazakhstan.

by Androvett Legal Media & Marketing at 10:27:00 am

The Dallas Women Lawyers Association (DWLA) will honor Chief District Judge Barbara M.G. Lynn of the Northern District of Texas, during a reception Tuesday, June 28 at the Belo Mansion starting at 5:30 p.m. On May 1, Judge Lynn became the first woman to attain the position of Chief Judge of the Northern District, which includes the city of Dallas. She succeeds former Chief District Judge Jorge Solis.

“The DWLA’s mission is to elevate the status of women lawyers, and we are thrilled to honor our first Louise B. Raggio recipient, the one and only Chief District Judge Lynn,” says Angela Zambrano, president of the DWLA. “She is the epitome of what women lawyers should aspire to be, someone who has opened countless doors for women in the legal profession, and a mentor and friend to all lawyers.”

Judge Patrick Higginbotham of the 5th U.S. Circuit Court of Appeals recently told The Dallas Morning News that Judge Lynn was an “inspiration to all of us, but especially to young women lawyers.”

Nominated by President Bill Clinton, Judge Lynn joined the federal bench in 2000. Before that, she was a civil trial lawyer at Carrington Coleman Sloman & Blumenthal in Dallas. Judge Lynn has received numerous awards throughout her career, including the Louise B. Raggio Award from the Dallas Women Lawyers Association. A year before her appointment as judge, the National Law Journal named her one of the most influential women attorneys in the country, and in 2010, the International Women’s Forum honored her with the Women Who Make a Difference Award.

by Androvett Legal Media & Marketing at 9:30:00 am

A Texas truck driver who suffered third-degree burns over 90 percent of his body in a liquid asphalt explosion has filed a negligence and injury lawsuit against the owners and operators of the Shreveport, Louisiana-based facility where the incident occurred.

According to court documents filed in Dallas County District Court, Darrell Allen, 59, of Denison, Texas, was assigned to pick up and haul a load of asphalt from the Calumet Shreveport refinery on April 23, 2015. An estimated 3,000 pounds of the scalding hot asphalt needed to be pumped out of Mr. Allen’s truck after it was overfilled. He was asked to help with the pumping process even though he had no related training or experience for that task.

The lawsuit alleges that the suction hose used by the plant’s workers to remove the asphalt had not been properly cleaned, leading to a catastrophic explosion that threw Mr. Allen from the top of the tanker truck and covered him in 350-degree liquid asphalt.

Mr. Allen was hospitalized for more than three months in the burn unit at University Health Shreveport Hospital, where he underwent painful treatments each day to remove dead or damaged skin. As a result of his severe injuries, he remains in constant pain with persistent itching and no sweat glands to properly regulate his body temperature.

“Darrell’s doctor has treated burn victims for 30 years, and he says he has never seen anyone burned this badly who survived,” says attorney Charla Aldous of Dallas’ Aldous\Walker, who represents Mr. Allen and his family. “Darrell has already suffered tremendously, and he still faces a lifetime of pain, impairment and ongoing surgeries because of this company’s negligence.”

by Androvett Legal Media & Marketing at 12:44:00 pm

This morning the U.S. Supreme Court upheld the University of Texas at Austin’s affirmative action student admissions policy, ruling against a white woman from Sugar Land, Texas, who wanted to attend there. Her lawsuit challenged UT’s use of race in admissions decisions, which was implemented in part by accepting the top 10 percent of eligible high school graduates across Texas, along with other considerations including race, community service, leadership, and extra-curricular activities.

Attorneys share their thoughts on the high-profile ruling:

Dallas trial lawyer Shonn Brown, partner at Lynn Pinker Cox & Hurst, says:

“This opinion affirms that the university can take a holistic approach to consider race as one of several factors in admission, while still following the precedents in other court decisions that overturned the use of racial quotas. Diversity should not be viewed as a rigid standard in higher education; I think schools have to be allowed some flexibility for the good of every student, and considering many factors including race where the compelling interest is met, so this decision is the sensible and proper approach.”  

Houston appellate attorney Misty Coné, shareholder at the appellate and trial law firm GODWIN PC, says:

“The Court's opinion in Fisher v. University of Texas would no doubt be different had Justice Scalia remained on the bench. Scalia's untimely passing coupled with Justice Kagan's non-participation resulted in an opinion that not only upheld the use of race-based affirmative action programs in higher education, but also reveals the true impact of the vacancy on the Supreme Court. Much has been written about the post-Scalia era on the Court – a time where the Court focuses on consensus building and ‘minimalist’ decisions. With the Court recently issuing a number of 4-4 decisions, there is some support for this notion. But with categorical evidence illustrating the impact and success of the Texas ‘top 10 percent rule’ as a means of improving diversity and access in Texas colleges and universities, it is very clear that Fisher will not represent the last word on the legality of affirmative action programs in the United States.”

by Androvett Legal Media & Marketing at 9:54:00 am

Every dog has its day, and for many, that day is June 24.

Celebrating the value of companionship and raising awareness of pet adoptions, Friday marks the 17th annual Take Your Dog to Work Day.

“Allowing employees to bring non-service dogs to work can be exactly the kind of perk that some employees, especially millennials, might be looking for when considering whether to accept one position over another,” says Dallas employment attorney Elisaveta Dolghih of GODWIN PC.

“Dogs are proven to relieve stress, can boost employee morale, and depending on the type of the business, can generate favorable publicity and goodwill around the business among its customers.”

However, Ms. Dolghih says, before employers temporarily or permanently roll out the proverbial red carpet for employees’ four-legged friends, they should consider the following legal issues:

  • If a company leases office space, does the lease agreement allow pets in the building?
  • Does the company's insurance policy cover a dog biting a customer or employee on the company premises? If not, do employees need to sign certain documents before being allowed to bring pets?
  • Are any employees allergic to dogs and, if so, what accommodations should be made for such employees?
  • How will a company address situations where a dog becomes loud or causes a work-interrupting distraction?

 For more information or to set up an interview, contact Rhonda Reddick at 800-559-4534 or

by Androvett Legal Media & Marketing at 3:26:00 pm

All eyes are on the U.S. Supreme Court which has yet to rule on the three most controversial cases this session, one of them focused on immigration. The case before the court is from Texas, and a decision is expected Thursday or Monday, June 27.

Texas and several other states have challenged President Obama’s executive order that would shield roughly 4 million undocumented immigrants from deportation and allow them to apply for work authorization. The high-profile case challenges the president’s executive authority in regulating immigration. Also at issue is the question of whether Texas  and the other states had legal standing to sue in the first place.  

Gordon Quan, a nationally recognized, 30-year immigration lawyer and founder of Quan Law Group, says:

“This decision will not only define the role of the executive branch but will be President Obama's last opportunity to address U.S. immigration policy.“



by Androvett Legal Media & Marketing at 9:25:00 am

State Rep. Byron Cook, R-Corsicana, asked Texas Attorney General Ken Paxton on Friday to rule on whether Texas Central Partners can rely on the power of eminent domain in its development of a high-speed bullet train from Houston to Dallas.

The legislator wants to know if the private company has the authority to go onto private land, survey it and eventually take it for the train path.

Austin lawyer Luke Ellis, a partner with Johns, Marrs, Ellis & Hodge LLP, thinks the legislator raises an important point.

“It’s highly questionable whether the proposed high-speed rail can exercise the power of eminent domain,” Mr. Ellis says. “A strong argument can be made under Texas condemnation case law and related transportation statutes to challenge Texas Central Partners’ right to conduct surveys and take private property through eminent domain.”

The bullet train proposal has been popular in Houston and Dallas and less popular in the rural areas it will speed through. The state does allow established railroads and other private companies to use eminent domain to create infrastructure, but the question about the high-speed rail project may yet be decided. Texas Central Partners told the Texas Tribune that the project is clearly covered by the same laws. Legislator Cook told the online newspaper that the decision should be made based on today’s understanding of the law and current situation, not something based on laws from more than 100 years ago.

by Androvett Legal Media & Marketing at 10:40:00 am

Attorneys representing a large group of professional golf caddies are asking an appeals court in San Francisco to reopen a lawsuit against the PGA Tour for forcing the caddies to act as human billboards without pay or benefits. Tour caddies are employed by Tour players and not the Tour, which does not provide health insurance, retirement or other benefits. Yesterday, The Lanier Law Firm filed an appeals court brief arguing that the case should proceed.

The lawsuit filed in federal court alleges the caddies are being forced to wear aprons, also called “bibs,” which cover their shirts and include logos of Tour sponsors. The bibs cover valuable real estate on the caddies’ shirts that they otherwise could use to secure their own sponsors. Even though the lawsuit says the Tour receives more than $50 million in bib sponsorships annually, the caddies receive none of that money.

According to the lawsuit, the PGA Tour is violating federal antitrust laws in addition to breaching its contracts with the caddies and reaping illegal profits by coercing them to advertise for the Tour for free. The caddies also say their likenesses and images have been unlawfully used by the Tour in its advertising.

“When the world’s leading sports network says the PGA Tour treats caddies like ‘outside dogs,’ then you know there is a problem,” says attorney Richard D. Meadow, who represents the caddies. “Sure, caddies are told they can have their own sponsors, but what good does that do if they’re forced to cover their shirts with other sponsors who are paying them nothing and instead putting tens of millions of dollars in the Tour’s pocket?”

The caddies’ 66-page brief includes a series of reasons the case should be allowed to proceed, including claims that the trial court conducted an improper fact-finding expedition by focusing on assumptions, hypotheticals and other matters not included in the caddies’ lawsuit.

by Androvett Legal Media & Marketing at 10:22:00 am

African-American women who regularly use talc-based baby powder are at greater risk for ovarian cancer compared to their peers who don’t use the products, according to a new study conducted by researchers at the University of Virginia. The report published in the journal Cancer Epidemiology found that the use of baby powder was associated with an increased risk of ovarian cancer regardless of where the powder was regularly applied on the body. The study involved interviews with 584 black women with ovarian cancer and 745 black women without the disease from the Southern and Eastern United States.

In the 1990s, Johnson & Johnson outlined a plan to hike flagging sales of its talcum powder products by targeting black and Hispanic women, according to a company memorandum made public in recent lawsuits leading to multimillion-dollar verdicts against the manufacturer.

“It’s tragically apparent that for many years, Johnson & Johnson has ignored and suppressed the almost two dozen clinical studies that indicate a link between the use of talcum powder and ovarian cancer,” says attorney Warren Burns of Dallas’ Burns Charest LLP. “This is just the latest evidence showing that African-American women have been effectively targeted through the company’s marketing, with a resulting increase in the disease.” The Burns Charest firm is currently accepting ovarian cancer cases against Johnson & Johnson on behalf of women and families, and maintains the website as a resource for news and information.

So far this year, two juries have returned significant verdicts in liability and wrongful death claims against Johnson & Johnson for its actions in marketing the use of talc-based powders. There are currently more than 2,000 similar cases pending nationwide.

In the past, African-American women have reported significantly higher use of so-called feminine hygiene products, including genital powder. A 2015 case-control study in Los Angeles found that 44 percent of African-American women reported using talcum powder, compared to 30 percent of white women and 29 percent of Hispanic women.

by Androvett Legal Media & Marketing at 9:52:00 am

Attorneys representing the City of Dallas and the tenants of Topletz Properties have secured a court injunction that prevents the owner of more than 200 residential properties from increasing rent, evicting tenants or taking other retaliatory actions without cause and approval from the court. The hearing included testimony that the standard Topletz lease requires renters to pay for repairs and ongoing maintenance in violation of the Texas Property Code, and has not been reviewed or updated since the 1960s.

The city’s original complaint, filed in November, accuses Topletz of renting properties with numerous code violations to tenants. “But this case is not just a matter of city code compliance or some other municipal regulation,” says attorney Michael Hindman, who represents the tenants together with attorney Mark Ticer. “Currently, if something breaks, then it’s up to the renter to fix it or pay for it. What’s really broken is the Topletz way of doing business.”

Earlier this year, Topletz sent letters to tenants telling them to not allow city code inspectors or neighborhood services personnel into their homes. At least one tenant received a form letter asking for her signature that claimed she was “completely satisfied” and that the property “needs no repairs” and “is in compliance with all City of Dallas codes.” In contrast to the company’s letter, the two lead plaintiffs’ properties have inadequate heating, cooling, electrical circuits and water, among other violations. In addition, each home was judged to be structurally unsound by City of Dallas inspectors.

The temporary injunction is expected to remain in place until trial, scheduled for Nov. 8 in Dallas County’s 193rd District Court.

by Androvett Legal Media & Marketing at 9:31:00 am

Attorneys at Aldous\Walker who represent Ebola survivor Nina Pham are calling out Texas Health Resources (THR) for going back on its promises and refusing to release information outlining how Pham contracted the disease while working as a nurse in the intensive care unit at Texas Health Presbyterian Dallas. Pham treated Thomas Eric Duncan, who later died of Ebola complications at the hospital.

In a new court filing asking for the release of THR’s “root-cause analysis” report, Pham’s attorney Charla Aldous says, “THR repeatedly told the press, community and even Congress under oath that it is committed to transparency about how Nina contracted Ebola so that our health system can learn from it. THR’s position in this case shows that those claims of transparency were all lies.”

The “motion to compel” filed with the court states: “Nina is pursuing this lawsuit to get to the truth, and her efforts of discovering that truth are being prevented by THR’s false claim of privilege. The court should order them to do so.”

According to Ms. Aldous the claim of privilege is the latest in an ongoing series of legal strategies by THR during the past 15 months to delay or deny the release of information, or attempt to curtail the litigation.

Ms. Aldous recently conducted an interview with The Dallas Morning News, whose editorial board has previously urged THR to be transparent in its release of information. “THR seems to be less interested in protecting lives, and more interested in protecting themselves,” Ms. Aldous says. The online article includes video from the deposition of THR chief medical officer Daniel Varga, who claims the organization’s findings are privileged under state law.

by Androvett Legal Media & Marketing at 3:15:00 pm

Axl Rose, you may want to pay attention to this piece of advice.

The Guns N’ Roses front man is trying to stop an Internet meme, one that has been dubbed “Fat Axl,” as the pictures show the star a bit heavier than normal.

The unflattering photos of a heavier Axl Rose have appeared on the Internet with altered lyrics to some Guns N’ Roses songs. Memes like “Welcome to the Jungle, we got tons of cake” or “Sweet Pie o’ Mine.”

While fat jokes are never a good thing, Internet attorney Kenton Hutcherson of Hutcherson Law in Dallas says be careful what you wish for when trying to remove photos from the Internet, even in an issue as weighty – potentially – as this one.

“It’s called ‘the Barbra Streisand Effect,’” says Hutcherson. “If you take legal action to remove certain content, you might actually fail and attract more attention to the content.”

Hutcherson is referring to Babs. In 2003, the legendary singer tried to conceal photos of her Malibu, California home; the opposite occurred because the singer drew more publicity due to her actions.

From a legal standpoint, this is a copyright case; Rose is claiming any photographer shooting such photos would have to have attended one of his concerts, where photographers generally were required to sign a release indicating ownership of any photos belonged to Rose or the group. The photographer, who originally took the picture of the rocker at a concert in 2010, cannot remember if he signed a release giving Axl ownership of the photos.

But is legal action really the best course? Especially since reporters already are writing about it.

Hutcherson, who has built a practice representing people harmed on the web – and who has experience using the court system to compel Google and others to remove offensive content – says perhaps not.

“Learn to pick your battles on the web,” says Hutcherson. “And understand you can make the situation much worse.”

by Androvett Legal Media & Marketing at 2:09:00 pm

The Senate this week approved the first update in 40 years to the law governing chemical substances, and it is now on its way to President Obama who is expected to sign it.

Enacted in 1976, the Toxic Substances Control Act provides the Environmental Protection Agency with the authority to regulate chemicals found in products that Americans use every day. The TSCA reform bill calls for quickly identifying chemicals that are most likely to pose health problems and focusing resources on testing them more thoroughly.

The new bill provides the EPA with the authority to obtain information about existing chemicals and to approve of new chemicals before they enter the stream of commerce. In the past, the EPA did not have the authority to properly regulate substances, such as asbestos, which are now known to be toxic.

Most of the congressional delegation members representing Houston and its petrochemical complex have supported the TSCA reform bill.

“In some ways, petrochemical companies are in favor of the new law since it would potentially provide more clarity regarding what substances are deemed to be unsafe by the federal government,” says David Baay, a partner in the Houston office of Sutherland Asbill & Brennan LLP. “Currently, energy companies that operate in different states are confronted with a variety of state regulations. This reform could help set the standard going forward.”

“At the same time, the law was contentious in some states that argued that the reform would frustrate their attempts to enact laws that are typically more stringent than federal laws,” says Maryann Zaki, an attorney with Sutherland who has defended companies against lawsuits for violations of California’s Safe Drinking Water and Toxic Enforcement Act. 

“While it may take some time for the EPA to implement the TSCA reform, once it is signed by the president, many industry leaders believe the new law will be a step in the right direction,” she said.

by Androvett Legal Media & Marketing at 11:02:00 am

Tomorrow, attorneys representing the City of Dallas and the tenants of Topletz Properties will ask for a court injunction that would prevent the notorious Dallas landlord from increasing rent, evicting tenants or taking other retaliatory actions while the case against the company continues.

The city’s original complaint, filed in November, accuses Topletz of renting hundreds of properties with numerous code violations to low-income tenants. Attorneys say the standard Topletz lease requires renters to pay for repairs and ongoing maintenance in violation of the Texas Property Code. “This case is not just a matter of city code compliance or some other municipal regulation,” says attorney Michael Hindman, who represents the tenants together with attorney Mark Ticer. “Currently, if something breaks, then it’s up to the renter to fix it or pay for it. What’s really broken is the Topletz way of doing business.”

Earlier this year, Topletz sent letters to tenants telling them to not allow city code inspectors or neighborhood services personnel into their homes. At least one tenant received a form letter asking for their signature that claimed they were “completely satisfied” in their home and that the property “needs no repairs” and “is in compliance with all City of Dallas codes.” In contrast to the company’s letter, the two lead plaintiffs’ properties have inadequate heating, cooling, electrical circuits and water, among other violations. In addition, each home was judged to be structurally unsound by City of Dallas inspectors.

The temporary injunction hearing is scheduled for 9:30 a.m. Thursday, June 9 in Dallas Judge Carl Ginsberg’s 193rd District Court at the George Allen Courts Building, 600 Commerce Street, 8th Floor.

by Androvett Legal Media & Marketing at 4:52:00 pm

Amanda Greenspon, an Associate at Munck Wilson Mandala and part of the Firm’s Intellectual Property Section, provides counsel to companies on trademarks and copyrights. She provides perspective on the copyright litigation against pop music superstar Madonna.

At less than a quarter of a second, even a die-hard Madonna fan might miss the musical sound at the center of the copyright litigation over her dancehall smash hit, “Vogue.” But that was the issue for California’s 9th U.S. Circuit Court of Appeals, which focused on a brief sample from funk ensemble SalSoul Orchestra’s “Ooh I Love It,” which was produced by the same person who later went on to work with Madonna on “Vogue” but didn’t have rights to the sample. The dispute was not over who created the sound but whether unauthorized use of such a tiny snippet of music could amount to copyright infringement. In the end, the 9th Circuit panel sided with Madonna in a 2-1 ruling, finding that such a fleeting sound is simply not recognizable to a general listening audience.

Seemingly, this ruling is at odds with an earlier ruling from the 6th U.S. Circuit Court of Appeals in the so-called Bridgeport case, which found that rap group N.W.A.’s “100 Miles and Runnin” wrongly sampled a brief guitar riff from a song written by funk music icons Funkadelic. That decision, which essentially said that even small samples warranted copyright protection, led to a surge in lawsuits of artists seeking compensation. Here, the 9th Circuit appears to have set a boundary to the question of what amount of music data is too small to be considered a sample and therefore entitled to copyright protection. In this case, at least, it’s 0.23 of a second. If the Court’s opinion had gone the other way, we would have expected many more copyright lawsuits and claims by artists. But it would have been harder to determine whether the next 0.23 second actually was lifted from another song or merely sounded similar.

So where do you draw the line? Just like an artist cannot own a single line of a drawing, this court found that such a small amount of material cannot be owned by an artist. What we do know is that as the digitization of music production continues, the courts will continue to struggle to keep up.

by Androvett Legal Media & Marketing at 11:02:00 am

The Wall Street Journal reported that defense lawyers in Florida filed a lawsuit complaining that federal prosecutors have been spying on defense legal strategies for as long as a decade by obtaining copies of the defense discovery documents.

The Florida lawyers allege that the document service that provided them with copies of government documents they requested for their litigation then also provided government investigators with copies of the documents of interest to the defense – thus revealing some of the defense strategy before trial.

“The government’s receipt of defense counsel work product on the sneak, raises serious legal and ethical issues,” said Houston defense lawyer Philip Hilder, a former federal prosecutor himself.

“Reading the defense playbook is cheating,” said Hilder, founder of Hilder & Associates, P.C. “It is worrisome that the government doesn’t even recognize or chooses to ignore the long-standing work-product privilege. The government needs to be held accountable as this is a slippery slope.”        

The Wall Street Journal reported that the “allegations surfaced days ago on the eve of a scheduled trial, which is now delayed. In court papers filed May 26, lawyers alleged that prosecutors had secretly gained access to discovery document files assembled by the defense team. The lawyers wrote that an assistant U.S. attorney informed them in April that an FBI agent had received CDs containing duplicates of discovery files the defense had assembled and scanned from the more than 200 boxes of seized government evidence made available to them.”

The newspaper reported that the U.S. attorney’s office said the concerns were overblown and there was no evidence this practice was widespread.

by Androvett Legal Media & Marketing at 10:34:00 am

Accomplished Texas trucking accident attorney Steve C. Laird of Fort Worth is a strong advocate when it comes to highway safety issues. As a result, Mr. Laird is spreading the word about International Roadcheck 2016, a 72-hour mandatory inspection of tractor trailers, buses and other heavy trucks that will take place June 7-9. The average person may not be aware of Roadcheck, a partnership between law enforcement agencies and the Commercial Vehicle Safety Alliance that helps protect motorists and prevent hazardous situations on our highways. The three-day Roadcheck period represents the safest time of the year for drivers, but the days that follow are among the most dangerous.

Mr. Laird authored a blog explaining why.

“As [it] happens every year, the trucking industry already is telling companies and drivers about the three-day window, which will allow many of them to limit their hours or stay off the road entirely in order to avoid inspections. Once Roadcheck is over, expect to see many more tractor-trailers on the highway, including those whose drivers may be looking to make up for lost time that was spent waiting on the mandatory inspections to conclude.”

The time away from the road is what the trucking industry calls “Roadcheck vacation.” Drivers without the proper licensing and those operating unsafe trucks often take off work to avoid inspections only to return once the 72-hour period expires.

“The smart way to approach Roadcheck as an average motorist is to be particularly careful on the highway in the days and weeks following the inspection period when many drivers return to the road. That means everyone should be on high alert beginning Friday, June 10, through the weekend and at least the following week. Although not every big rig you see will have safety problems and not all of the drivers will be unqualified or improperly licensed, knowing about Roadcheck and taking the proper precautions will protect you and your family.”

by Androvett Legal Media & Marketing at 9:01:00 am

On May 27, the U.S. 5th Circuit Court of Appeals ruled to reinstate a $641 million lawsuit representatives from Environment Texas and the Sierra Club brought against energy giant ExxonMobil for violating the Clean Air Act at its Baytown, Texas, oil refinery complex. The groups allege Exxon has thousands of air pollution violations, and are fighting for the government to properly enforce the law and protect the public’s health by penalizing the company.

Houston-based attorney Philip H. Hilder, who represents the environmental groups in the lawsuit, says:

“The opinion is significant because it ratifies enforcement of the Clean Air Act by ordinary citizens when the government refuses to do its job. This type of action is the great equalizer, holding corporations accountable where the government has failed.”

Luke Metzger, Director of Environmental Texas, echoes Hilder:

“After six years of litigation against one of the state’s biggest polluters, justice has finally been served. The appeals court confirms that even the world’s most powerful corporations must be held accountable when they violate our environmental and public health laws.”


by Androvett Legal Media & Marketing at 10:31:00 am

The Obama administration recently issued an order requiring that public schools permit transgender students to use the bathroom corresponding to their gender identity. The administration threatened to withhold federal funds from schools that don’t comply with this directive. Yesterday, Texas and 10 other states filed a federal lawsuit challenging the constitutionality of the administration’s order. Chad Ruback, a Dallas appellate lawyer, explains:

There is simply not much precedent—one way or the other—as to the rights of transgender individuals. Consequently, it is quite difficult to predict how the states will fare in this lawsuit.  However, by filing their lawsuit in a West Texas federal court, the states have chosen one of the most conservative venues in the country. Wichita Falls, Texas, is not known for its sympathy to transgender individuals or to the Obama administration. However, it is quite possible that this case won’t turn on whether transgender individuals should have certain rights, but instead on whether the administration overstepped its authority by creating such rights by executive decree.

by Androvett Legal Media & Marketing at 10:55:00 am

Texas-based NextSeed is setting its sights on revolutionizing the way small business financing and investing are done nationwide. NextSeed is the first SEC-registered crowdfunding portal under Title III of the JOBS Act.

In October 2015, the Securities and Exchange Commission passed Title III of the JOBS Act, which is intended to facilitate investments by non-accredited investors in private placement deals. Until now, investors who did not meet specific income or net worth qualifications had difficulty investing in private businesses due to strict disclosure requirements. Under the new crowdfunding rules, U.S. private businesses are now able to raise up to $1 million a year by offering securities to investors, including non-accredited investors, through broker-dealers or online platforms operated by funding portals such as NextSeed.

NextSeed was represented in its efforts to secure SEC approval by venture capital and emerging business attorneys from Gardere Wynne Sewell LLP. Led by Gardere partners Adam Hull and Rick Jordan, the firm developed a model that will help the shape the future of online crowdfunding and the way securities and broker-dealer laws, lending regulations, internal structuring and tax-related concerns are addressed. Gardere represents investors and issuers in venture capital and later-stage transactions and has a portfolio of emerging business clients throughout the country.

To celebrate the launch of this new national platform, NextSeed will present an evening of festivities spotlighting small business and investors at 6:30 p.m., Thursday, May 26, at the former downtown Central Post Office in Houston. The newly remodeled small business marketplace is at 401 Franklin Street. The evening will include live music and complimentary food and drink from some of the most exciting new businesses in Houston. RSVPs are required and can be made here

“NextSeed is at the forefront of online funding innovation, and Gardere is honored to represent an organization that is truly the first of its kind in the country,” says Mr. Hull. “NextSeed’s early success is directly attributable to the quality and commitment of its seasoned, sophisticated leadership team. “Co-founder and CEO Youngro Lee and his dedicated team are ideally suited to make NextSeed a breakout success.”


by Androvett Legal Media & Marketing at 2:15:00 pm

This weekend the Houston Chronicle reported that Texas Land Commissioner George P. Bush had paid former state employees who were fired nearly $1 million not to sue his office or him personally and to keep quiet about the arrangement.

The news follows earlier revelations that Texas Attorney General Ken Paxton continued to pay three employees from his office after they stopped working for the state. Since severance pay for state workers is not allowed, the payments by both officials are drawing scrutiny. 

Veteran Dallas employment lawyer Rogge Dunn says he believes the agreements likely are improper. 

“The practice of paying government employees after they've been terminated is highly questionable and likely violates the ban on paying state workers severance,” Mr. Dunn says. “This practice should concern taxpayers and regulators alike because it’s so vague and lacks transparency.” 

Mr. Dunn says the payment structure Mr. Bush relied on for former General Land Office employees is particularly confusing since any lawsuits that could have been filed or may still be filed would be handled just like any other claim against the state, which means a settlement or a trial. 

“Without any checks and balances, taxpayers are at risk for abuse of the standard, above-board process by which the state settles claims and lawsuits,” he says. 



by Androvett Legal Media & Marketing at 1:25:00 pm

Rusty Hardin, Houston-based litigator and founder of Rusty Hardin & Associates, was recently featured in Law360’s Trial Pros series, which you can read here. The nationally known lawyer began his career as a prosecutor in Houston before starting a private practice where he works on both civil and criminal cases and often helps high-profile clients from the sports, political and business worlds.  

Mr. Hardin says pitcher Roger Clemens’ perjury case over allegedly lying to Congress about using performance enhancing drugs was the most interesting he’s worked on:

“I so deeply felt that he was the victim of a congressional witch hunt that observed no rules. The only reason Roger Clemens ever testified before Congress, was because he was unwilling to invoke his Fifth Amendment rights. He was unwilling to refuse because he believed so strongly that he had done nothing wrong. The first trial ended in a mistrial because of government mistakes… but when we got the not guilty at the end of the second perjury trial, it was an incredibly satisfying moment.”

His biggest advice to new trial lawyers:

“To listen and not be so bound up in your trial preparation that you fail to constantly be listening to witnesses in a way that is unencumbered by your expectations. [You] may miss incredible nuggets that both the jury and the facts scream out to be further examined. I’ve never seen a trial where we were not able to elicit favorable information that we never expected and didn’t see coming. Total preparation can free you up… thereby allowing you to be able to pounce on the unexpected.”

The most unexpected or amusing thing he’s experienced while working on a trial: 

“During litigation over the hundreds of millions of dollars in the estate of the late J. Howard Marshall II, the questioning of the one-time Playboy centerfold Anna Nicole Smith took a life of its own. It was interesting to watch a witness say and do whatever outrageous things come to their mind in a totally unstructured way that made cross-examination a wonderfully extemporaneous experience. I asked Anna Nicole how she spent $100,000 a week, she responded with ‘Rusty, it’s very expensive being me.’”


by Androvett Legal Media & Marketing at 8:43:00 am

The Ohio Court of Appeals is reviewing a judge’s $11,000 fine of  a lawyer for telling a reporter about an upcoming civil trial. Media organizations already have submitted briefs in support of attorney Peter Pattakos, arguing that the fine levied against him amounts to an unconstitutional infringement on a free press.

“In some extraordinary cases, for good cause, judges have restricted lawyers’ ability to discuss the facts of a case with the media – but this clearly is not one of those instances,” says Dallas appellate attorney Chad Ruback.

“The Ohio judge’s order would effectively prohibit all communication between lawyers and media members in all cases, even communicating such innocuous details as when a trial is scheduled to begin. The Ohio court’s order violates both the lawyer’s right to free speech and the media’s right to free press. If the courts in Ohio do not clarify that such an order is highly inappropriate, then this is the type of ruling that would draw the U.S. Supreme Court’s interest.

Ever since the days of Ben Franklin’s printing press, the public has relied upon the media to stay informed about court proceedings. The media historically have provided a means for average citizens to keep watch over the courts. Our founding fathers were well-aware that, without reasonable media access to information about court cases, the public’s trust in the legal system would quickly erode.”


by Androvett Legal Media & Marketing at 4:00:00 pm

Despite an outpouring of negative commentary from the business community and a congressional attempt to block enactment (more on that below), the Department of Labor’s new overtime rule has arrived. The rule is a whopping 508 pages long, but here are the basics gleaned from the summaries by Audrey Mross, who leads the Labor and Employment Section at Dallas’ Munck Wilson Mandala:

  • The effective date is Dec. 1, 2016, so you’ve got some time to get your house in order.
  • The minimum salary to preserve most exemptions (in addition to meeting the proper duties test) will jump from $23,660 to $47,476 per year (lower than expected, based on the proposed regulations).
  • The minimum salary to preserve the exemption for highly compensated workers will rise from $100,000 to $134,004 per year, higher than expected.
  • The minimum salary will reset every three years, starting Jan. 1, 2020. Each new minimum will be announced 150 days in advance (Aug. 1, 2019 for the January 2020 increase).
  • Those minimum salary levels are tied to a percentage of the earnings of full-time salaried workers in the lowest-paid Census region, the South. The non-Highly Compensated Minimum salary is pegged at the 40 percent mark when looking at the weekly earnings of all full-time, salaried workers in the South. The Highly Compensated Employee rate is pegged at 90 percent.
  • Up to 10 percent of the salary minimum for non-HCE workers can be met via payment of non-discretionary bonuses, commissions or incentive pay so long as the payments are made quarterly or more frequently.
  • No changes were made to any of the duties tests.

The administration purposefully pushed the new regulation out now to try to avoid nullification via the Congressional Review Act after the upcoming elections. The Protecting Workplace Advancement and Opportunity Act, which attempts to block the rule and requires further economic impact study, has only 36 sponsors in the Senate and 155 in the House, so not a lot of traction there yet. Today’s announcement means it’s time for businesses to review those job classifications and compensation levels and make some decisions. For example, do you increase the minimum salary, where needed, to preserve the exemption? Or do you concede nonexempt status and manage the overtime liability by clamping down on hours worked? Policies and procedures will need updating, and plan on educating newly nonexempt workers and their managers on unfamiliar topics such as proper record-keeping, compensability of travel time and more.


by Androvett Legal Media & Marketing at 12:45:00 pm

All efforts by Texas Attorney General Ken Paxton to block Syrian refugees from coming to Texas have failed. Yesterday he announced that Texas state officials could impose additional security checks on refugees settling in the state. Gordon Quan, a nationally recognized, 30-year immigration lawyer who has a weekly radio show about immigration law, responds to Paxton’s statement:

“I feel exasperated with a Texas  administration that continues to look for boogeymen whether in restrooms, voting booths or with women and children fleeing terrorism. What a waste of time! The only way the state leaders can retain power is to spread fear about the other – gays, minorities and refugees. We are better than this.”  - Gordon Quan, founding partner of Houston law firm Quan Law Group, PLLC.


by Androvett Legal Media & Marketing at 3:00:00 pm

Last weekend’s baseball series between the Texas Rangers and Toronto Blue Jays continues to dominate headlines based on the late-game brawl that started with a punch delivered by the Rangers infielder Rougned Odor. Major League Baseball has announced an 8-game suspension for the Rangers star, who reportedly says he will appeal.

Dallas criminal defense attorney Barry Sorrels recently told the Fort Worth Star-Telegram that the violent punch that landed on the jaw of Blue Jays outfielder Jose Bautista may have earned Mr. Odor a suspension, but criminal charges will not be coming given the circumstances. “In sports, if you’re out there, you know this is going to happen and everybody sort of recognizes that this is going to happen,” Mr. Sorrels says. “Just by being out there, you’re kind of consenting to be involved in this.”

Even if Mr. Odor were to face criminal charges based on the fight, which the Arlington Police Department has told media it has no interest in pursuing, he still would likely prevail in court, Mr. Sorrels says. How? He says Mr. Odor’s response to the hard slide directed at his legs would be very easily defended at trial.

“He absolutely had a right to defend himself,” says the Dallas attorney who’s represented a variety of professional athletes during his storied legal career.

by Androvett Legal Media & Marketing at 12:03:00 pm

The head of a group of women lawyers in Dallas is getting behind an effort to create emojis showing women in professional situations – as doctors, lawyers, etc. – in addition to the traditional ones girls see.

“I’d love to see a female judge,” says Dallas Women Lawyers Association President Angela Zambrano. “Think about it. Kids always have their phones and they’re always texting.  This is one of those small things that can make a huge difference in how girls and young women see themselves and what they see as possibilities when they grow up.”

Google has proposed the new professional women emojis to the Unicode Consortium, the organization that creates them. Young girls and teenagers, who use their phones daily to text a smiley face, a heart, maybe a bride to their friends, may soon see a woman as an executive, a farm or factory worker.

Michelle Obama and the feminine products company Always are advocates for better portrayal of women in emojis (Always published a video of girls saying emojis don’t represent them).

Zambrano believes the Google proposal elevates the standing of women in all professions and sends a strong message to young girls and teenagers about women’s roles in today’s society.

“When girls see us in professional roles, they learn at an early age that women deserve equal representation in the workforce,” said Zambrano.

by Androvett Legal Media & Marketing at 1:30:00 pm

Attorneys with the Dallas litigation boutique Aldous \ Walker have secured a confidential settlement in a lawsuit against Texas Health Resources and LHP Hospital Group based on fraud allegations stemming from the companies’ 2010 acquisition of Wilson N. Jones Memorial Hospital in Sherman, Texas. “I am happy that we were able to hold the defendants accountable and send a message that you cannot hurt communities like THR did and abandon them without consequences,” says attorney Charla Aldous of Aldous \ Walker, lead counsel for the foundation. “And I am especially proud that the proceeds from this agreement will go to the Wilson N. Jones Community Foundation to help provide health care to the indigent in Grayson County.”

The civil lawsuit filed in January 2015 on behalf of the hospital’s foundation claimed that Arlington, Texas-based THR and Plano, Texas-based LHP induced the WNJ board of trustees to sell the hospital to them six years ago even though there were higher offers from other potential buyers. The sale was predicated on THR and LHP committing $25 million for capital improvements within five years, in addition to the companies’ promising not to sell the hospital to any outside group for 10 years. However, Ms. Aldous says the capital improvements never reached the $25 million mark. THR and LHP also notified the foundation board that they intended to sell the hospital in September 2014 instead of honoring the previously agreed 10-year ownership pledge. The WNJ Foundation owned the hospital since 1914 until its sale to THR.

by Androvett Legal Media & Marketing at 9:00:00 am

In January, Texas Attorney General Ken Paxton issued an opinion that Texas courts most likely would view paid daily fantasy sports as illegal gambling. FanDuel, a popular fantasy sports website, prohibited participation by all Texans earlier this month as a result. However, leading fantasy sports website DraftKings decided to take a different route by filing a lawsuit against the AG, claiming he caused the company to lose customers and jeopardized its relationship with the Dallas Cowboys.

Dallas appellate lawyer Chad Ruback recently discussed the DraftKings lawsuit in a Bloomberg BNA story that you can read here.

“While [filing a lawsuit] is a risk, it’s not an irrational decision,” Mr. Ruback said. “If ultimately the court rules against DraftKings, at least they have certainty, but right now, there is no certainty. Do they keep pouring money into a business model that very well might be determined illegal in Texas sometime in the future?”

“This is not something that would come up often,” Mr. Ruback said. “You know armed robbery is a crime, murder is a crime, but DraftKings wants the court to rule on its business model. The attorney general gave his opinion, but that’s just one man’s opinion.”



by Androvett Legal Media & Marketing at 11:48:00 am

The Consumer Financial Protection Bureau – the federally sanctioned consumer watchdog – has unveiled a proposal that would restore customers’ rights to bring class-action lawsuits against financial firms. Dallas attorney Warren Burns of Burns Charest says the proposal will protect “the most important tool in the consumer’s toolbox.” The new rule is expected to give Americans major new protections and deliver a serious blow to Wall Street by removing requirements to take any dispute to arbitration. “For decades, Americans have been duped by a highly coordinated campaign to malign class actions and the lawyers who routinely protect consumer rights,” says Mr. Burns. “The American economic system has always been built on a compromise designed to permit businesses to conduct their activities without excessive regulation, but at the same time to permit consumers to protect their rights through litigation.” The proposed rule, which would apply to bank accounts, credit cards and other types of consumer loans, seems almost certain to take effect since it does not require congressional approval.

by Androvett Legal Media & Marketing at 8:00:00 am

The late music icon Prince certainly isn’t the most famous person to have died without a will and has an estate greater than their debts. Howard Hughes, Jimi Hendrix and Pablo Picasso are among those that also died with substantial estates but no wills. Prince’s lack of a formalized, up-to-date estate plan indicates that the entertainer was much more like the rest of us than we might have ever expected.

By some estimates, more than 60 percent of Americans may not have a recognized will. However, Dallas estate planning attorney Sam Long of Shackelford, Bowen, McKinley & Norton, LLP says those estimates are misleading since everyone arguably already has a will. The question, Mr. Long says, is “whether someone has their own or the state drafts it for them,” as seems to be the case with Prince.

“If you choose the latter route by default, then the resulting beneficiaries and fiduciaries under state laws are not always as one would intend or assume,” says Mr. Long, who also serves as an adjunct professor of wills, trusts and estates at the UNT-Dallas College of Law.

“Having no will also can cause additional expense and complexity, and sometimes a greater tax burden on heirs that could have been prevented with some planning. For many people, private wealth now is passed along by beneficiary designations on IRAs, life insurance policies, multiple-party bank accounts, living trusts and/or other forms of ‘nontestamentary transfers.’ But wills still play a vital role in the succession of property at death.”

by Androvett Legal Media & Marketing at 11:45:00 am

Experienced maritime lawyer Charles Herd of The Lanier Law Firm in Houston says he expects as many 85,000 individual lawsuits will be filed against BP by the middle of this month over damages caused by the 2010 Deepwater Horizon oil spill. Mr. Herd says many people wrongly believe that a 2012 class-action settlement resolved all the Deepwater Horizon claims against BP, but those who did not participate in the settlement can file lawsuits by May 16 under a court-ordered deadline.

Mr. Herd recently discussed the claims of the more than 200 clients he’s representing against BP in a story by The National Law Journal that you can read here. He told the publication that the federal judge overseeing the claims against BP is working to make sure the local residents and small businesses who did not participate in the class-action settlement will get their day in court.

“[The judge has] now turned his attention to what most people thought the case was going to be about from the beginning—all the individuals, mom and pop stores, who were economically and otherwise harmed by the spill itself,” Mr. Herd told The National Law Journal.

by Androvett Legal Media & Marketing at 11:30:00 am

Faced with an apparently unsuccessful deal to reorganize electricity transmission unit Oncor, Energy Future Holdings Corp. may now be staring at a lengthy and expensive bankruptcy fight, according to Sam Stricklin of Dallas’ Gruber Elrod Johansen Hail Shank

“If this transaction is really dead, the bankruptcy case could drag on for a year or more and accumulate gigantic amounts of professional fees,” Mr. Stricklin told the national legal news service Law360. According to the article, professional fees in the EFH case already have reached $300 million, not counting the month-long trial that resulted in EFH's Chapter 11 plan confirmation. Late last week EFH told the Delaware bankruptcy court that the deal at the heart of its Chapter 11 plan could not be concluded due to conditions imposed by Texas regulators. The state’s Public Utility Commission balked at the tax savings from the deal structure not being shared with ratepayers. But Mr. Stricklin says those costs may ultimately wind up being passed onto consumers. “I applaud the commission’s desire to share some of those tax savings, but they may be cutting off their nose to spite their face,” he says.


by Androvett Legal Media & Marketing at 2:48:00 pm

Cyberattackers have targeted all types of businesses, from oil companies to hospitals. This week, a small West Texas law firm reportedly discovered its email system had been hacked and used to dupe people around the world when they received an email from the firm regarding a “lawsuit subpoena.”

The emails were from a valid address at the law firm of James T. Shelton in Clarendon, Texas, east of Amarillo. But no one from the firm had sent the messages. In a classic “phishing” attempt, the email reportedly contained a virus in a Word document loaded with malware that can be used to steal banking and other personal information when downloaded. As reported on the legal news website Texas Lawbook, the law firm shut down the email account and placed a warning message on its website saying not to click on links from the email.

“Certainly, there has been a lot of interest in the last couple of years among companies and regulators about the potential vulnerability of law firms and how they might be the weak link enabling hackers to get access to corporate documents and information,” says Mark Thibodeaux, cybersecurity lawyer in the Houston office of Sutherland Asbill & Brennan LLP. Mr. Thibodeaux is also a former IT executive and has an in-depth understanding of the techniques used by data hackers.

“All organizations must train computer-using employees to recognize ‘phishing’ emails. When unsuspecting victims open attachments or click on links in these emails, that is how the attackers get their foothold on the organizations' networks,” he said.

“There have been allegations that big law firms have been targeted by (primarily Russian) criminal gangs to get access to pre-release corporate information to use for insider trading of stocks and other securities. And, of course, there has most recently been the supposed hacking of Mossack Fonseca in Panama, leaking information about the widespread use of offshore companies to hide money,” said Mr. Thibodeaux. "Both federal and state regulators have increased their scrutiny of how financial institutions are managing cybersecurity when they have entrusted information to third parties, like law firms, accountants, and IT contractors. They want to see due diligence on cybersecurity before information is handed over, strong contractual confidentiality protections, periodic audits of security, and notification and cooperation with investigations when incidents occur.”

Mr. Thibodeaux notes that a group in the oil and gas industry, including many Houston-based companies, recently founded an Information Sharing and Analysis Organization (ISAO) focused on sharing ideas regarding protecting information shared with outside counsel and information about threats and defenses.

by Androvett Legal Media & Marketing at 2:33:00 pm

The credits on Beyonce’s new album Lemonade give a nod to the band the Yeah, Yeah, Yeahs for a lyric she uses in the chorus of her second song. Steve Mitby, a partner in the Houston-based law firm Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing, or AZA, says this was a smart move by the Houston-born pop star.

“This was well played by Beyonce. It is a huge risk for someone in a creative business to borrow anything without giving proper credit. We’ve seen this harm reputations again and again in academia, book and speech writing and in the music industry,” Mitby said.

“I tell clients to acknowledge any work they use substantially, or just in passing. What Beyonce did here is good business. The line between accepted sampling and copyright theft may be fuzzy, but giving credit where credit is due is an easy rule to follow,” Mitby said.

Artists from 2 Live Crew to Pharrell, and writers from Doris Kearns Goodwin to Mike Barnicle, have come under fire for uncredited references to others. Even Vice President Joe Biden was accused of plagiarism. It appears Beyonce will avoid those perils.

by Androvett Legal Media & Marketing at 2:15:00 pm

Dallas attorney Rogge Dunn has represented a variety of professional sports figures over the years, and he has been closely watching the “Deflate-gate” saga involving New England Patriots quarterback Tom Brady. Mr. Dunn says today's decision from the U.S. 2nd Circuit Court of Appeals to reinstate a four-game suspension levied against Brady by the National Football League shows how much power has been placed in the hands of NFL Commissioner Roger Goodell.

“Under the collective bargaining agreement signed by the players union and the NFL, the commissioner has broad discretion, which the ruling notes," Mr. Dunn said. "The 2nd Circuit also noted that it was required to give the commissioner ‘substantial deference’ when considering an appeal of one of his rulings. That means that unless the commissioner goes outside his authority and ignores the plain language of the collective bargaining agreement, or unless he is demonstrably unfair, then his rulings will not be overturned by an appellate court. This court decision will have implications in the future when players and team owners reexamine their collective bargaining agreement, which gives the commissioner these broad powers. This isn’t the first time that a commissioner of a major sports league has taken decisive action and made a statement. Back in the early 1920s, Major League Baseball Commissioner Kenesaw Mountain Landis banned White Sox players for life for throwing a game in the World Series even though they had been found innocent by a jury.”


by Androvett Legal Media & Marketing at 1:25:00 pm

Aaron Dobbs, a shareholder in the Texas-based law firm Roberts Markel Weinberg Butler Hailey PC who handles tough probate cases including many for sizable and complex estates, said if Prince did not leave a will, state law usually dictates that the estate passes to the person’s family. The deceased’s family, referred to as “heirs,” will be determined through a judicial proceeding where the court will formally declare the names of each person inheriting and each person’s share of the estate. If the court declares that the person’s property passes to siblings, half-blood siblings inherit half as much as that inherited by each whole-blood sibling. This result may be contrary to the deceased’s wishes, which is why developing an estate plan is important.  Estate planning can be an empowering process because you -- not the state – dictate who will inherit your estate and who will handle your estate business in the interim. 

What happens with Prince’s assets will likely depend on if a will is ever found and on the particular laws in Minnesota. In many states, including Texas, a person’s estate will pass according to the terms of the deceased’s will. Of course, the validity of a will can be challenged due to allegations that the deceased lacked capacity or was unduly influenced. Also, the will may not contain all of the elements required by law to be a valid will.  This is why it is important to have a professional prepare estate planning documents. 

When it comes to Prince’s music, that will likely be handled by a personal representative, often referred to as an executor (when there is a will) or as an administrator (generally, when there is not a will), will need to be appointed by a court in order to administer the estate. Administering the estate includes maintaining and securing all assets of the estate, including intangible personal property like music and other copyrighted material.  This might include the personal representative bringing legal action, on behalf of the estate, against those that may be using copyrighted materials without permission.

by Androvett Legal Media & Marketing at 12:08:00 pm

While the official announcement is not until tomorrow, it is being reported that former Cleveland Browns and Texas A&M University quarterback Johnny Manziel will be indicted on domestic violence charges. Philip Hilder, founder of Hilder & Associates in Houston and former federal prosecutor, focuses his practice on white collar criminal defense. He explains:

“It is unusual but not unprecedented that a grand jury was utilized to consider whether to charge Mr. Manziel.  Though a grand jury was not needed in charging a misdemeanor, it can be  used, as here,  to shield a DA from criticism.  In this case, no matter the course of DA action, or inaction, there would be criticism in this high profile matter. It is easier for the DA to punt in this situation and let a body of citizens decide.”  

by Androvett Legal Media & Marketing at 9:00:00 am

What’s the best thing about your job?

The people. I work with talented, smart, fun people here at Androvett. And I enjoy the people I work for – the lawyers and law firms.

From a marketing standpoint what are law firms not focused on that they should be?

We are all tempted by the bright and shiny tactic. The best marketers start by focusing on the objective: What does the firm want to achieve? What is success? How can the firm grow its practice? Answering those questions will make the decisions about individual tactics much more apparent.

In contrast, what are some of the positive things that law firms are doing in the area of marketing?

More and more, firms are recognizing the importance of their Brand, and understanding that even with legal services, hiring decisions are driven by how the firm and its attorneys are perceived. And that’s what a Brand is – a bundle of perceptions.

What’s on the horizon in terms of trends and tools that could assist firms in building their brands?

Lawyers, by training, are often risk averse. So it’s less about trends and being on the vanguard of marketing, and more about adopting current best practices. LinkedIn is a good example. So is content marketing, taking the thought leadership that attorneys create – white papers, speeches, articles, etc. – and disseminating those across multiple platforms, such as LinkedIn, the firm website, blogs, email marketing and even Twitter.

What is something most people don’t know about you?

I have a small fragment of limestone embedded in my cheekbone, the result of a childhood fall. So I sorta have rocks in my head. It explains a lot.

by Androvett Legal Media & Marketing at 12:00:00 pm

This morning it was announced that Uber reached a settlement with 385,000 drivers in California and Massachusetts over the classification of its drivers. Drivers were pushing to be classified as employees, where Uber took the position that they are independent contractors. In the settlements, Uber is paying $100 million in exchange for the drivers to be classified as independent contractors. Attorney Randy Gordon, Chair of Antitrust and Trade Regulation at Gardere Wynne Sewell LLP, explains:

“The most important aspect of the settlement is that it preserves Uber’s position that its drivers are independent contractors, not employees.  And although this settlement doesn’t have the force of general law, it will, if approved, bind hundreds of thousands of drivers and avoid a trial of the issue in what has proven to be an unfavorable venue for Uber.  The drivers also secured some monetary relief (up to $8,000 for experienced drivers) and other concessions, including a right not to be ‘deactivated’ without reason or recourse and to organize (but on a non-union level).”

by Androvett Legal Media & Marketing at 2:43:00 pm

Dallas appellate lawyer Chad Ruback says despite today’s “victory” for the City of Dallas, the case against porn convention Exxxotica is far from over:

“This morning, a federal judge denied Exxxotica’s request for a preliminary injunction.  While the judge’s ruling is certainly a win for the City, it is not nearly as big a win as one might think.  This ruling merely signifies that the judge will not be changing the status quo until the case has been more fully developed.  Exxxotica was facing an extremely high legal hurdle to get the judge to change the status quo and force the City to rescind its decision about barring Exxxotica from the convention center.  Exxxotica’s burden will be much lower at trial.

In a separate ruling also issued today, the judge denied the City’s motion to dismiss Exxxotica’s case.  If the judge had granted the City’s motion, that truly would have been a monumental win for the City.  Read together, the judge’s two rulings indicate that this case will likely be pending for a long time.  If it proceeds to trial and then to appeal, the City’s total legal bill will easily be in the millions.  So, the biggest loser today may have been the City’s taxpayers, who are footing the bill for the private attorneys who’ve been hired by the City.”

by Androvett Legal Media & Marketing at 1:28:00 pm

U.S. regulators announced this morning that they are proposing new rules that would regulate Wall Street executives’ bonus pay including making them wait four years to collect most of their bonus pay, and forcing them to return money if companies lose money. Mark Shank, Managing Partner of Gruber Elrod Johansen Hail Shank, who specializes in executive compensation and regulatory issues says:

“The proposal calls for creating a standardized policy of governmental oversight that supersedes both existing industry standards and the independent, internal policies of individual businesses. I’m not sure imposing these regulations create any benefit to these companies, their customers or the overall economy.”

by Androvett Legal Media & Marketing at 11:36:00 am

The U.S. Supreme Court is hearing oral argument today in a case that pits the president against 26 states over the issue of immigration.  Who wins?

“With the passing of Justice Scalia, you effectively have a stalemate,” says Dallas appellate attorney Chad Ruback.  “You end up with four conservative justices and four liberal ones.  And if they go the way one might think they would go, the trial court’s ruling – against the president – stands.  And that means Texas wins and the president loses.”

Some background. Frustrated by Congress’s unwillingness to enact his immigration reform legislation, President Obama signed an executive order which would grant temporary legal status and work permits to all undocumented immigrants who entered the U.S. illegally prior to 2010 and have children who are U.S. citizens or legal permanent residents. This would include over four million of the approximately eleven million undocumented immigrants currently in the United States.

The State of Texas assembled a coalition of 26 states to mount a legal challenge to the president’s executive order, contending that the order exceeded the president’s authority. Last year, a federal trial court judge ruled against President Obama in this case and issued an injunction prohibiting the president’s order from being implemented.  A federal court of appeals affirmed the trial court judge’s decision.

The Obama administration has appealed to the U.S. Supreme Court, which has historically given presidents broad discretion over who should be deported. The Supreme Court is conducting a hearing on the case today.

At today’s hearing, the State of Texas is arguing that, while a president may have broad discretion with regard to deciding who should be deported, President Obama’s order exceeds the bounds of that discretion.  While other presidents—including George H.W. Bush—have ordered that certain individuals not be deported, this is the first time that a president has ordered that everyone meeting certain criteria be spared from deportation.

The State of Texas is also arguing that, by providing work permits (in addition to freedom from deportation), President Obama’s order should not be judged by the same liberal standard as simply an order deciding who should be deported. The provision of work permits is significant because, under existing U.S. law, a person who works with a valid work permit is automatically eligible for social security and Medicare benefits.

The Supreme Court is now split evenly between four Republican-appointed justices and four Democrat-appointed justices. If all eight justices vote along party lines, President Obama’s order will not be implemented.  However, there is certainly the possibility that one of the more moderate Republican-appointed justices will vote with the Supreme Court’s liberal faction.

by Androvett Legal Media & Marketing at 10:00:00 am

April 12 is Equal Pay Day – the day that women’s 2015 earnings equal that of what men were paid last year. Lawyers are no exception to the pay gap.

According to a U.S. Census Bureau report, median pay for full-time female lawyers was 77.4 percent of the pay earned by their male counterparts, the ABA Journal reported.

“Women lawyers are subject to the same pay gap that women in other professions face,” says Dallas Women Lawyers Association President Angela Zambrano. “Given the fact that law school is no less expensive for women than it is for men, that pay gap must end.”

“It can’t just be incumbent on women lawyers to ‘be better negotiators’ or demand higher pay,” she says. “Employers hold the purse strings, so they need to make special efforts to ensure that their male and female lawyers are being judged – and compensated – by the same yardstick.  I do not believe that any individual working for an employer wants his or her daughter or wife earning less than her male colleagues for doing the same work.  But having these issues top of mind in the compensation process can prevent creating unintentional wage disparities.  We can fix this issue in one generation with right-thinking employers.

by Androvett Legal Media & Marketing at 10:00:00 am

A former federal immigration investigator says the announcement of a crackdown on visa fraud – and the use of a fake university to make it happen – sounds like a creative idea.  But AJ Irwin wonders if the feds might have done even more with what they learned, and the people they identified.

News coverage this week detailed the University of Northern New Jersey, which came complete with a website, a Latin-laden seal and a list of business degrees.  But it was all fake, a mirage created by Immigration and Customs Enforcement (ICE) to snare those who act as recruiters and commit visa fraud involving students.

Irwin, who worked for ICE’s predecessor – the Immigration and Naturalization Service (INS) – says the number of those recruiters arrested in the sting, 21, seems rather low for an operation that began in 2012.  What’s more, since the scheme reportedly involved 1,000 students, he wonders what information the agents may have gathered if they had grabbed some of the students as well.

“There’s no telling what sort of information the ‘students’ may have had, “ Irwin says.  “My preference – I’d arrest them and interview them.  You can learn an awful lot from them and maybe even identify some additional defendants, material witnesses – maybe even threats to our Homeland.  Doing it this way is kind of a notice that tells them they should run – right now.”

by Androvett Legal Media & Marketing at 12:00:00 pm

President Obama's nomination of Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia, to the U.S. Supreme Court comes at a time of unprecedented turmoil within the Republican party and polarizing political debate. Dallas appellate lawyer Chad Ruback notes that the nomination of a respected jurist like Garland creates special challenges for GOP senators. Writes Ruback:

In nominating Merrick Garland for the open seat on the U.S. Supreme Court, President Obama has put Republican senators in a no-win situation. As a federal court of appeals judge, Garland has been regarded by Republicans and Democrats alike as being intelligent, hard-working, and fair. Since taking his current bench in 1997, he has left a track record of politically-moderate appellate decisions. Garland’s opinions are no more liberal than those of current Supreme Court Justice Anthony Kennedy, who was appointed by President Reagan.

If Republican senators vote against Garland’s confirmation or refuse to conduct a vote at all, they will be perceived by swing voters as being obstructionist and uncompromising. This could jeopardize reelection bids for senators from all but the most conservative states and could also alienate voters who are undecided between voting Republican or Democrat in this fall’s presidential election. On the other hand, if Republican senators vote to confirm Garland, they will be perceived by the right wing of their party as being too willing to support Obama’s agenda. This could draw strong challenges to them in their next Republican primary. Thus, Republican senators will hurt themselves no matter what they do. No doubt, this was a deciding factor in President Obama’s decision to nominate Garland.

This is a high-stakes game of poker. If the Senate does not confirm Garland, and Hillary Clinton or Bernie Sanders is elected president in November, neither of them will have any incentive to nominate a political moderate to fill this Supreme Court seat. While the Senate could block nominees for the handful of months remaining in Obama’s presidency, the Senate would simply be unable to block all nominees throughout a four-year presidency. So, by scuttling Garland’s nomination, Republican senators could be paving the way for a much more liberal Supreme Court justice taking the bench next year. That’s hardly the legacy that a conservative senator would want to leave.

If Republican senators are holding out for a nominee who is essentially a clone of Justice Scalia, those senators are setting themselves up for a monumental disappointment. Even if Ted Cruz became president in January, he would be unlikely to find a nominee who could match Scalia’s unique ability to meld an extremely conservative philosophy with a rapport engendering political moderate justices to sign-off on his opinions.

by Androvett Legal Media & Marketing at 10:00:00 am

Dallas Appellate Attorney Chad Ruback gives insight on Hulk Hogan’s $100M invasion of privacy lawsuit against media website Gawker, where the key argument is First Amendment protection.  

Generally, First Amendment issues are decided by a judge on summary judgment without a case ever going to trial. This case is unusual in that the trial court’s judgment will turn in large part on the jury’s resolution of the facts of the case.

Courts have almost always been very liberal in applying the First Amendment. As long as a communication does not put someone in immediate physical danger (such as shouting “fire” in a crowded theater), courts have treated the First Amendment as a nearly iron-clad defense. In this case, Hogan is arguing for a rarely-applied limitation to the First Amendment’s protections. Specifically, Hogan is arguing that the communication at issue constitutes such a conscious-shocking invasion of privacy that his privacy rights should trump Gawker’s First Amendment rights. While Hogan might be able to persuade the jury – and even the trial court judge  – to limit Gawker’s First Amendment rights on this basis, it is highly unlikely that an appellate court would uphold a judgment in favor of Hogan.

That being said, a judgment in Hogan’s favor could have chilling effects on media coverage of embarrassing aspects of celebrities’ lives. Hogan’s lawsuit against Gawker has already been in litigation for several years, and a Hogan win at trial would likely mean several more years of litigation in the appellate courts. Even if Gawker wins on appeal, the legal fees for Gawker’s ultimate vindication will have been astronomical. All but the largest media outlets would have difficultly footing lawyers’ bills of this magnitude.  That, of course, would limit future coverage of celebrities’ personal lives by gossipy media such as Gawker.

On the other hand, a trial court judgment in Gawker’s favor would likely embolden gossip-focused media outlets to go to even more extreme lengths to acquire and distribute highly-sensitive videos and photos of celebrities.

by Androvett Legal Media & Marketing at 12:00:00 pm

Dallas Criminal Defense Attorney John Teakell, a former federal prosecutor, discusses how the potential discovery of important forensic evidence could affect the still-open murder investigation of Nicole Brown Simpson and Ron Goldman:

Forensic science and DNA enhancement technology have advanced to the point where it’s possible to retrieve minute traces of DNA evidence from blood or saliva from an object like a knife, even one that’s been exposed to the elements for months or years.

It’s ironic that we’re still talking about DNA evidence because OJ’s murder trial was such a turning point for forensic science. The public really learned about DNA evidence from the trial testimony, and shows like CSI can trace their origins straight back to the OJ trial.

If forensic evidence linking OJ Simpson to the murder is discovered, it would create a procedural challenge for prosecutors, but it would not be insurmountable. Since Simpson was found not guilty, double-jeopardy statutes would prevent Simpson from being charged with the same offense. However, prosecutors might be able to charge him with a different offense related to elements of the same crime.

A bigger problem for authorities is the years that passed between when the weapon was discovered and when the officer turned it over to detectives for analysis. That could set the stage for a repeat of the original trial defense tactics, questioning the professionalism and motives of the LAPD and the quality of the chain of evidence presented to jurors. Since the officer recently retired, he’s not likely to face any professional or legal fallout from failing to alert investigators about this potentially important piece of evidence.

Here we go again with more drama.


by Androvett Legal Media & Marketing at 10:00:00 am

The expected sentencing today of Nicholas Rotundo on one count of cyberstalking raises the question of what kind of recourse his victims have against him.


Internet lawyer Kenton Hutcherson, of Dallas’ Hutcherson Law, who has previously handled so-called revenge porn litigation, says if Rotundo in fact threatened to publish intimate photos of women on revenge porn websites in order to pressure them into sending him more intimate photos or videos, his victims would probably have a solid invasion of privacy claim against him.  In addition, if he ever posted the photos or videos online, his victims would be able to seek damages and attorney’s fees under Texas’ recently enacted revenge porn statute.


“To the extent his victims sent their photos voluntarily, they probably don’t have a cause of action for invasion of privacy because they voluntarily consented to disclosing their pictures to him, albeit under false pretenses,” Hutcherson says. “However, once he threatened to publish the photos if they did not send more pictures or videos, then if they sent further pictures or videos to him, then their consent would have been coerced, and they definitely have a claim for invasion of privacy. Once he goes the extortion route, you have a pretty good claim.”


So far, it does not appear that Rotundo posted the images he received anywhere online. But if he did, his victims would be able to file a request with major search engines to remove those images from their search results.


by Androvett Legal Media & Marketing at 10:00:00 am

The Dallas City Council’s decision not to allow Exxxotica to rent space in the city-owned convention center will undoubtedly be found unconstitutional by a federal judge.  If the City is going to own a convention center and lease it to private parties, the First Amendment to the Constitution precludes the City from discrimination based on the message that those private parties are wanting to express at the convention center.  And, like it or not, it is well-established under federal law that erotic displays are protected under the First Amendment.

The City’s Council’s decision is short-sighted.  The decision might be popular with voters who despise erotic displays.  But, when a federal judge orders the City to pay a large damage award to Exxxotica, the voters might not be happy with any city council member whose vote opened the door for tax dollars to be paid to Exxxotica.

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