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Androvett Blog

by Robert Tharp at 1:57:51 pm

Pension funds and ordinary investors appear to have the most to lose in the federal bailout of Fannie Mae and Freddie Mac,

says attorney Jeffrey Zwerling, whose work includes securities class actions and mortgage banking. There's been much discussion about the bailout's effect on homebuyers and taxpayers, but investors are on the hook to lose the most, Zwerling says. "It seems the U.S. government intervened to keep foreign investors from pulling their money," says Mr. Zwerling, of New York's Zwerling, Schachter & Zwerling, LLP. "Treasury Secretary Henry Paulsen has said ‘the government will be repaid... before the shareholders of these companies get a penny,' and that just means that the pension funds and ordinary folks that invested hard-earned money may end up bearing the risk for the rest of the country." To interview Mr. Zwerling about the Fannie Mae bailout and the credit-market crisis, contact Mark Annick at 800-559-4534 or mark@androvett.com.  

by Robert Tharp at 4:36:10 pm

While the airline industry contracts, consolidates and generally struggles to find a way to survive, niche aviation businesses are thriving as they nimbly fill the gaps, says aviation attorney and pilot David Norton of Shackelford, Melton & McKinley in Dallas. Most recently, Miwok Airways began an air-taxi service in California, shuttling

people on "ultra short haul" from place to place on demand. As the LA Times describes it:

Harking back to the early days of aviation when pilots in biplanes picked up passengers on farm fields, the flights on Miwok Airways are not scheduled. They fly on demand and can take off from any of the more than three dozen airstrips in the region. Passengers can set their own flight time and then be flown in four-seat Cirrus propeller planes with fares as low as $82 one way. The fare will depend on the distance between airports and on how many people are sharing the plane, rising to more than $300 if no other passengers are on the plane. The plane can seat three paying passengers. By comparison, chartering a plane can cost more than $600 an hour.

These kinds of services will no doubt only become more common as large carriers cut costs by abandoning or drastically reducing service to mid-sized and less-profitable airports. "We're seeing the evolution of the air travel business," says Norton, who helps clients navigate laws and regulations involved in leasing corporate jet aircraft, also sat on the panel advising the FAA regarding on-demand air travel rules. "The airlines are never going away, but very soon this kind of air taxi service is going to be more and more common."

by Robert Tharp at 4:16:35 pm

As the music industry's aggressive legal crackdown on file-sharing turns five this week, there's little to celebrate, says attorney William Munck of Dallas-based Munck
Carter
. Peer-to-peer file-sharing remains as popular as ever, despite more than 30,000 complaints filed by the Recording Industry Association of America against what Wired magazine describes as the elderly, students, children and even the dead. "Despite this crackdown, billions of music files are still being shared," he says. "The industry has had some success, but it is modest compared to the losses that continue to mount."

by Robert Tharp at 3:56:06 pm

Lots of factors figure into your chances of prevailing in a court before a jury of your peers, but it's a little surprising that a plaintiff's facility to speak English appears to
play such an important role. That's the conclusion of a soon-to-be-published academic study by Dallas attorney Angel Reyes and Texas Tech University Rawls College of Business professors Bradley T. Ewing, Ph.D., and James C. Wetherbe, Ph.D. Among Hispanic plaintiffs, the study found that English speakers had better success in court than their non-English-speaking counterparts. In fact, Hispanic plaintiffs who relied on an interpreter during testimony were 15 percent less likely than an English speaker to obtain a jury verdict that exceeded the settlement offer. "What this study shows is that while Lady Justice is blindfolded, she certainly is not deaf," Reyes says. "This raises profound questions about the right to a fair trial and the impact of language differences."

by Robert Tharp at 11:25:19 am

The term `cloud computing' conveniently lacks a certain intuitiveness. It's a hot topic in lots of industries; Dell even tried unsuccessfully to trademark the term. For now, Google's aggressive embrace of the cloud computing concept is having the most direct impact for most of us out there on the interweb. Anyone who uses Google's Gmail and Google
Docs is essentially benefitting from cloud computing. But wouldn't ya know there had to be a potential dark side to all this `free' stuff that many don't consider when using these services. Consider this fascinating story in the Houston Chronicle, describing how under the services' terms of use, Google reserves unlimited rights to use your content. E-commerce attorney and Vogel IT Law Blog author Peter Vogel says attorneys should think twice about communicating via gmail accounts because the terms could be interpreted as waiving the attorney-client privilege.

According to the Chronicle: Google, which prides itself on not being evil, offers a few more protections in its online legal agreement that everyone accepts before using its products. The agreement states that users retain the copyright to content they post, submit or display using Google's services. But Google gets "perpetual, irrevocable, worldwide, royalty-free and nonexclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute" any of the content. What's more, Google can make that content available to any companies or organizations it chooses.

"Most people do not pay any attention to what the terms of use are, but courts all over the world enforce those terms of use," said Peter Vogel, an attorney with Gardere Wynne Sewell in Dallas who teaches a course at Southern Methodist University on the law and e-commerce.

So the problem remains: What you put in cloud services such as Docs and Gmail, Google's free Web-based e-mail, isn't really yours anymore. Google doesn't make money by giving us gigantic e-mail accounts. Its profit comes in part from selling ads tied to the content of messages sent with those accounts. In other words, it's sifting through our messages, looking for sales leads. And it's not just Google. "When one uses an online service - Google, Yahoo, AOL - there's a click agreement that nobody ever reads. Somewhere embedded in the agreement you waive all sorts of ownership issues," Vogel said.

by Robert Tharp at 4:45:02 pm

Wasn't that long ago that advertising was off limits to lawyers and law firms. The prevailing thought was that lawyer ads somehow demeaned the profession. That stodgy
attitude started to change with the Supreme Court's 1977 Bates vs. Arizona Bates vs. Arizona ruling that the First Amendment allows lawyers to advertise, provided the message is not misleading to the public.

Thirty-one years later, some firms are really embracing creative advertising(other firms, not so much). Gardere Wynne Sewell, for example, understands that such a campaign can go hand in hand with being a big, internationally respected firm. Gardere was recently singled out to receive the prestigious "Award of Distinction" from the International Academy of the Visual Arts Communicator Awards for its smart "They call it/We call it" campaign.

by Robert Tharp at 2:51:45 pm

There was plenty of finger pointing when a popular engine used in small airplanes began to fail, causing deadly crashes and a worldwide recall. Lycoming, a susidiary of Textron, had a legal strategy that amounted to diverting blame at all cost, claiming that tiny Navasota, Texas-based Interstate Southwest, Ltd., was responsible for supplying defective crankshafts that caused the engines to fail.

After an exhaustive investigation and legal battle in which attorneys from the Dallas law firm Rose•Walker became experts in the intricacies of plane engine design, a Grimes County jury sided with Interstate Southwest, dinged Lycoming for fraud and handed Interstate Southwest a $96 million verdict in 2005. The verdict was later reduced by an appeals court, but the Supreme Court of Texas this week upheld the trial court's key rulings that Lycoming alone is responsible for the design defects that caused the engine failures. The appeals court's decision effectively closes the door on any legal attempts to hang blame on Interstate Southwest and also wipes out Lycoming's $186 million counterclaim against Interstate Southwest.

The ruling should end six years of litigation, says attorney Marty Rose of Rose•Walker. "This Supreme Court decision means Interstate Southwest wins and Lycoming loses - it's as simple as that," Walker says. "A jury of 12 people looked at this and said that Lycoming was to blame. This decision affirms that."

by Robert Tharp at 4:18:44 pm

KXAS reporter Brett Johnson found the perfect man-on-the-street interview for his story about the aggressive position taken by Sprinkles Cupcakes to protect their high-
dollar cupcake empire: "You wouldn't really think that something so little and so minor on top of a cupcake would be part of a trademark," the unidentified patron said, contemplating the circle-within-a-circle icing design on top of each Sprinkles cupcake.

Indeed. This summer alone, Sprinkles has warned one rival to discontinue using a similar circle motif in its packaging. Most recently, it threatened a cupcake peddler called "Sprinkled Pink Cupcake Couture" and ordered that the business change its name. As Munck Carter intellectual property attorney Dyan House put it, protecting Sprinkles' distinctive niche is a fight worth having and goes to the core of trademark law, whether you're talking about cupcakes or technological innovation.

by Robert Tharp at 2:47:40 pm

Among medical malpractice attorneys, few consider the Supreme Court of Texas a friendly venue when it comes to reviewing jury awards. That's why Friday's ruling
upholding the punitive damages in a big medical malpractice verdict is so significant.

The ruling stems from a 2001 verdict by a Dallas County jury awarding $9.2 million in compensatory damages and $21 millin in actual damages to the family of a man who died of a heart attack after waiting 12 hours for treatment after complaining of chest pains at the Las Colinas Medical Center. The 5th Court of Appeals in Dallas previously reduced the total award to approximately $5.4 million based on existing Texas laws limiting damage awards in health care claims. Given the Supreme Court of Texas' reputation, there was concern that justices would further reduce the award. Instead, the Supreme Court upheld the award against Columbia Medical Center and also reversed an award for loss of inheritance damages.

"We are extremely pleased to finally have this case resolved through this just, but infrequent affirmance of punitive damages," says attorney Mark Werbner, co-founder of Sayles Werbner and trial counsel for the Hogue family. "This opinion is especially gratifying because the Hogues have had to wait so long for the court to rule. The Supreme Court of Texas is known far and wide for reversing court judgments favoring plaintiffs, particularly in medical malpractice cases, and it is important that this decision is perhaps putting a halt to that trend."

Under the court's ruling, defendant Columbia Medical must pay the Hogue family approximately $10 million when the amount of pre- and post-judgment interest is included with the $5.4 million award of actual and punitive damages.

by Robert Tharp at 10:41:15 am

An interesting trend story in this week's National Law Journal describes how the business world and law firms are increasingly turning to former federal agents and
prosecutors at sophisticated investigation firms for help with high-stakes matters like corporate espionage, trade secret theft and workplace discrimination claims. Firms like Stroz Friedberg, LLC, which has just opened a Dallas office, are primarily staffed by former federal investigators and high-level federal prosecutors. Stroz Friedberg's Erin Nealy Cox tells the NLJ that clients value their expertise and ability to work behind the scenes.

"Part of our value to our client is being able to work with and solve really big problems without anyone knwoing about it. We can't go out like law firms tha splash their verdicts across the front pages of newspapers. We just can't do that." Behind the scenes, Cox said. firms like hers are helping law firms win lawsuits, settle lawsuits and avoid them altogether. They help in-house counsel investigate internal problems, such as data breaches and intellectual property theft, to determine whether legal action needs to be pursued. "The law firms don't have the forensic laabs that we have," she said. "They don't have the private inestigator experience that we have. We look for that smoking-gun e-mail or document"

by Robert Tharp at 2:39:57 pm

The folks at Walt Disney thought enough or Steamboat Willie to obtain a copyright on the character, but who would have thought back in 1928 that the image would build the foundation
that is now a worldwide media and marketing empire? Much has been made of the news that an early copyright of Steamboat Willie is at risk because of a technical flaw in the filing. William Munck, head of the intellectual property section at Dallas' Munck Cartersays the business world could take a lesson from Disney, which has taken several steps to protect the iconic rodent's image. "Disney has many procedures in place to protect Mickey and his friends, including federal, common law and foreign trademark registrations," says Munck. "None of these derive their validity from a single first copyright filing, so there is no domino effect that would place Mickey in the public domain. Likewise, companies must realize that the lifeblood of their organization is their intellectual capital, and should develop intellectual property protection strategies tailored to their particular business." To interview Mr. Munck about intellectual property matters, contact Alan Bentrup at 800-559-4534 or alan@androvett.com.  

by Robert Tharp at 2:20:32 pm

Some describe it as a mysterious "crop circle" on their Hitachi LCD television screen, according to the class-action lawsuit filed by attorneys at Heygood, Orr, Reyes, Pearson & Bartolomei. For other owners of the high-dollar TV, the problem is "blobs" or "blooms" of color, haze, dots and other anomalies. While
they can't agree on a single descriptor, many owners of the nearly $4,000 Hitachi's 50V500A model LCD rear projection television are less than satisfied. In fact, owners of the set are fighting mad over their treatment from Hitachi. Dallas resident Anthony Partida and the law firm of Heygood, Orr, Reyes, Pearson & Bartolomei are taking the matter in their own hands, mounting a class-action lawsuit against the American subsidiary of Japanese consumer electronics giant. The lawsuit charges that Hitachi has known about the defect since early 2005, but the company has continued to sell the model.

"Hitachi has been more than willing to take people's money for these TV sets and they should be more than willing to fix them," says Heygood Orr attorney Eric D. Pearson. "In some cases, people paid $4,500 or more for these TVs. You can't take that kind of money and deliver a defective product.

by Robert Tharp at 4:07:25 pm

Ah, the college football season is finally here _ the pomp, the pageantry... the unscrupulous sports agents. Although NCAA rules prohibit agents from contact with
college players until after a player declares intentions to take part in the NFL draft, shady agents are always looking for a competitive edge and typically try to establish relationships years earliersays sports attorney DARYL K. WASHINGTON of Dallas' Shackelford, Melton & McKinley. "Some agents are approaching kids who are still in high school or even younger, making promises and handing out gifts that would be hard for anyone to turn down," he says. "This type of contact is immoral and criminal, not just a violation of NCAA rules that can result in sanctions." To interview Mr. Washington about sports law issues, contact Rhonda Reddick at 800-559-4534 or rhonda@androvett.com.

by Robert Tharp at 3:46:28 pm

While New Orleans residents ponder the prospect of another hurricane direct hit three years after Katrina, oil traders have so far been indifferent as Gustav churns toward

the Gulf of Mexico. Prices dropped $2.56 to $115.59 per barrel by the close of the market Thursday. Oil companies are busy pulling workers and suspending drilling activity on the thousands of offshore rigs in the Gulf, but energy industry expert  RENATO BERTANI says a market overreaction causings a spike in prices is unnecessary. "A short-term increase is certainly expected, but oil companies are better equipped than ever to efficiently move their personnel to safety and quickly return to operations when the storm has passed," says Bertani of Houston's Thompson & Knight Global Energy Services. "Although it's impossible to definitively predict the effect of a hurricane, companies have made increased investments in technology and transportation to protect both their facilities and workers, so it's hoped the impact will be minimal." To interview Mr. Bertani about the energy industry, contact Barry Pound at 800-559-4534 or barry@androvett.com.  

by Robert Tharp at 10:51:02 am

Who would have thought pre-2001 that the small east Texas town of Marshall would become the epicenter of some of the most complex and high stakes patent law

litigation and trials in the country? That's exactly what happened when Judge T. John Ward created the "rocket docket" in the U.S. District Court for the Eastern District of Texas to speed up the disposition of patent infringement lawsuits. An interesting Texas Lawyer article this week questions whether the venue has become a victim of its own popularity. In an area where long legal delays are costly for plaintiffs, some patent cases filed in the Eastern District are not getting court dates until 2011, the paper reports. Patent litigator  Doug Cawley, a shareholder in McKool Smith in Dallas, tells Texas Lawyer that efforts to prevent plaintiffs from "forum shopping" have so far failed to gain traction in Congress. Such legislation might have trimmed the Eastern District's docket by limiting plaintiffs' ability to choose the venue to file a case. Cawley says the Marshall Division still has value because the courts still move cases quickly, and recent success among defendants has assuaging concerns that the courts there are generally pro-plaintiff.

by Robert Tharp at 10:16:24 am

With approximately 1 million attorneys out there trying to make a living in the United States, law firms trying to stand out in the crowd face big challenges. Dallas-based  Taber Estes Thorne & Carr PLLC is making
some real progress. The new firm is one of just 73 law firms nationwide to earn certification as a women-owned and controlled business by the Women's Business Enterprise National Council. Besides being a highly qualified and experienced firm, the certificaiton gives Taber Estes a competitive boost since most publicly held corporations, as well as larger private corporations, governmental agencies and non-profit organizations, have policies that encourage doing business with women and minority business owners. "As a new firm, this certification is an important step in raising awareness among potential clients that we offer distinct advantages as both excellent attorneys as well as helping them to meet their diversity initiatives," says Jane Taber, a founder of the firm.
Taber Estes Thorne & Carr PLLC is one of the few women-owned law firms in Dallas. It features a collaborative team of highly experienced attorneys, representing clients in business litigation, labor and employment, family law, health care and insurance matters.

by Robert Tharp at 3:31:10 pm

We love to talk PR and solve world problems over here at Androvett Legal Media. The little matter involving Russia's conflict with Georgia gave us the opportunity to do a little both. This interesting New York Times analysis describes how Russia may have won the battle related to the conflict with Georgia but failed in terms of the worldwide PR image war.

While Georgia's U.S.-educated leader, Mikheil Saakashvili, was making the press rounds early on, Russian leaders were busy putting the clampdown internally and feeling like they didn't need to make their case to the world press. We couldn't help but see similarities in the legal PR world. Think about it, you have to have a good battle plan in high-stakes litigation, but bad things can happen when you forget about or disregard the message you're intentionally or unintentionally sending outside the courthouse.

Consider this passage from the New York Times article: High-ranking Russian officials, who generally have a free hand in the Russian media, seem to find it demeaning to have to fight to get their message out. And they hold Mr. Saakashvili in such contempt, considering him a Western pawn who wants to bring NATO into their backyard, that they recoil at the idea of being perceived as his equal on the world stage, especially after pummeling his military forces.

It was not until four days after the conflict began - an eon in the 24-hour news universe - that a top Kremlin official was sent to CNN to counter Mr. Saakashvili. The official, Sergei B. Ivanov, a confidant of Prime Minister Vladimir V. Putin, who speaks polished English and has long experience in the West, quickly acknowledged that an unfortunate perception had taken hold."A big Russian bear attacked a small, peaceful Georgia," said Mr. Ivanov, a deputy prime minister, before seeking to undo the damage. "In fact, the situation is and was vice versa. It was a big Georgia which attacked a small and tiny breakaway republic of South Ossetia."

 

by Robert Tharp at 2:36:50 pm

A soon-to-be-released academic study in the Journal of Empirical Studies concludes that plaintiffs are better off cutting their losses and settling rather than taking a
case before a jury. The study found that most plaintiffs who passed up a settlement and proceeded to trial ended up getting less money than originally offered. That decision typically cost the plaintiff about $43,000, the study concludes.

Defendants, on the other time, made a mistake by proceeding trial only about a quarter of the time. The survey found that an attorney's experience level played no role in the success or failure in the courtroom. Dallas attorney Mike Richardson, a partner at the trial law firm Rose•Walker, says the study should have taken actual courtroom experience into consideration _ not the number of years on the job. "If you've tried plenty of cases, you can usually do a pretty good job of handicapping the outcome," Richardson says. "The study is absolutely right in saying an attorney's years of experience don't matter, but real trial experience does." To interview Mr. Richardson about his opinion of the study, contact Mark Annick at 800-559-4534 or mark@androvett.com.

by Robert Tharp at 5:09:23 pm

Fortune 500 companies are apparently making faster progress than law firms in terms of diversity in the upper ranks, according to a recent survey that found that one in

five general counsels at Fortune 500 companes are women. The 92 general counsels currently employed by Fortune 500 companies is more than double the 44 females GCs reported when the Minority Corporate Counsel association began keeping such stats in 1999.  "This trend is a natural result of the emphasis on diversity within corporate legal departments," says Stacy Humphries of Houston's MS Legal Search "In general, corporations have been working harder and smarter than law firms to foster diversity, both in terms of women and minorities." This year's survey found 20 new women GCs at Fortune 500 companies, with all but three replacing male counterparts. "The numbers indicate that companies are not just hiring talented women lawyers, but are also retaining and promoting them." To interview Ms. Humphries on hiring trends in the legal industry, contact Barry Pound at 800-559-4534 or barry@androvett.com.

by Robert Tharp at 4:54:31 pm


Pop quiz: Which population group represents the largest segment of undocumented citizens in the U.S.? The correct answer would be U.S. citizens, more than three

out of four of whom don't possess valid passports. That little known fact stands to become a big problem next summer when the rules change and U.S. citizens are no longer allowed to re-enter the country from Canada or Mexico by simply showing a birth certificate and driver's license. Fewer than 25 percent of Americans hold a U.S. passport, including a third of adult women whose proof of citizenship does not even reflect their current legal name, says Kathleen Campbell Walker of El Paso 's Brown McCarroll, the immediate past president of the American Immigration Lawyers Association. "Many U.S. citizens already face significant hurdles in providing valid proof of citizenship, and the need for that documentation is only going to increase," Walker says. To interview Kathleen Campbell Walker about immigration and documentation issues, contact Barry Pound at 800-559-4534 or barry@androvett.com.

by Robert Tharp at 11:53:34 am

With more than 14.5 million active online auctions listings at this very moment, just how responsible should eBay be for the fraud that occurs when unscrupulous sellers

misrepresent their wares? Quite responsible if you're the high-end jeweler Tiffany & Co., whose commanding price depends largely on the exclusivity of its brand name. Three out of every four Tiffany's products for sale on eBay are fake, the jeweler claims. Buoyed by Louis Vuitton's similar complaint that resulted in a $61 million judgment in France against eBay, Tiffany has asked a federal appeals court to overturn a July decision in which a lower court found that eBay is not legally obligated to preemptively remove listings of suspected counterfeit items. The conflicting rulings show that this matter is far from settled, says  attorney Dyan House, who handles trademark, copyright and licensing matters at Munck Carter in Dallas. "These cases exist at the intersection of new technology and IP law," House says. "Doing business online is becoming more prevalent and, unfortunately, so is infringement." To interview Ms. House about the eBay cases, contact Mark Annick at 800-559-4534 or mark@androvett.com.

by Robert Tharp at 10:14:33 am

Shoddy maintenance, inadequate insurance and paperwork, questionable driving records. These are just some of the details emerging from the investigation of the August 8 crash of a charter bus that killed 17 passengers near the Texas-Oklahoma border. But for Dallas attorneys Mark Werbner of Sayles Werbner PC and Frank Branson of The Law Offices of Frank L. Branson, preliminary findings from the wreck show that state regulators and fly-by-night bus companies have not learned from

previous and strikingly similar catastrophic bus crashes.

Among other things, the bus operated by Iguala BusMex Inc. of Houston was traveling with a retread tire on one of its front wheels. It is illegal to use retread tires on wheels that steer a bus. Records indicate that the owner of the bus had failed safety inspections and the driver had a history of traffic infractions.Werbner says he's disappointed that despite a number of deadly bus crashes in recent years in Texas and across the country, shady bus companies like the one carrying members of the Houston-area church are still allowed on the road. "This appears to be yet another case where a company and driver failed to get the required safety inspections and did little to protect the passengers," he says.

Most of the passengers were from the Vietnamese Martyrs Church in Houston and were on their way to the Marian Days pilgrimage in Carthage, Mo., for an annual festival honoring the Virgin Mary.

Branson and Werbner know what they're talking about when it comes to investigating bus companies and bus crash litigation. Werbner represented one of the surviving victims of a 2002 bus crash near Terrell, Texas, that killed five and caused severe injuries to several others. That case, which also involved a church group that had hired a charter bus service, resulted in a $71 million verdict on behalf of Werbner' client. Branson is currently representing victims of another horrific bus crash that occurred near Dallas and involved elderly Houston nursing home residents evacuating from Hurricane Rita in 2005. In that case, 23 people were killed when the bus caught fire in bumper-to-bumper traffic.

by Robert Tharp at 4:42:00 pm

The surprising thing about the collapse of IndyMac Bancorp last month was that apparently so few saw it coming. The California-based bank was not among the banks thought to
be in imminent danger of bankruptcy. IndyMac's failure now has everyone from industry insiders to individual account holders concerned that other banks may soon follow. Banking attorney Steven Camp of Dallas' Gardere Wynne Sewell says those concerns are not without merit. "There are other significant bank failures that may well occur in the near future," he says. "There's a watch list of banks people are concerned about. IndyMac was likely just the canary in the coal mine." Those with accounts should worry about the security of their deposits, though, because protections are in place to protect accounts up to set limits. To interview Mr. Camp about bank failures, contact Rhonda Reddick at 800-559-4534 or rhonda@androvett.com.

by Robert Tharp at 4:25:01 pm

Controversy is already swirling around plans under review by the federal Department of Labor to reassess the risks associated with exposure to toxins in the workplace. According to published reports, proposed changes to workplace safety guidelines would reassess the way toxic exposure is calculated for workers. Although details
have not been released, the proposal would reportedly address concerns that risks of on-the-job exposure to toxins are overestimated. RICKY RAVEN of Houston's Thompson & Knight says the review is long overdue. "I think under the current rules there is generally an overestimation, even exaggeration, about the levels of worker exposure," says Raven, who defends companies in toxic tort litigation. "The days of industry not being mindful of worker and workplace exposure levels are long over. Businesses fully appreciate the obligations and economic incentives of maintaining a safe workplace without unrealistic, government-mandated standards." To interview Mr. Raven about workplace toxin issues, contact Barry Pound at 800-559-4534 or barry@androvett.com.  

by Robert Tharp at 3:19:09 pm

It's probably just a matter of time before Texas courts play hose to litigation from the $330 billion auction-rate securities collapse of 2008, says Kenneth Johnston of

Dallas' Kane Russell Coleman & Logan. Just last week, the Texas State Securities Board sent a warning shot over the bow of Swiss banking giant UBS. The board threatened to bar UBS from doing business in Texas and claimed that the company engaged in fraud in the way they peddled auction-rate securities. "Civil charges may demand that these firms pay back profits as well as damages to corporations and consumers,' Johnston says. To interview Mr. Johnston about auction-rate securities, contact Barry Pound at 800-559-4534 or barry@androvett.com.

by Robert Tharp at 2:59:55 pm

Some employers are trying to help struggling workers cope with high gas prices by offering gas cards redeemable at the pump. What many don't realize is that the value
of the cards is technically taxable income that can result in a painful surprise when it's time to file income tax returns, says Audrey Mross, who leads the Labor and Employment secton of Munck Carter in Dallas. "The IRS has rules regarding employers subsidizing mass transit and there are specific exemptions, but gas cards are not on the list," Mross says. To interview Ms. Mross about gas prices and the implications for employers, please contact Mark Annick at 800-559-4534 or mark@androvett.com.

by Robert Tharp at 4:19:52 pm

Sales of the wildly popular Wii and Game Cube controllers threatened to come to a grinding halt in the ongoing patent battle between a tiny Tyler, Texas, technology
 
company and Nintendo. Tyler-based Anascape, which holds patents to technology used in the controllers, has prevailed in the latest rounds in the U.S. District Court for the Eastern District of Texas. Most recently, the court ordered Nintendo to either stop selling three types of video controls for the Wii and the Game Cube or put a portion of the sales in escrow. For an idea of the stakes infolved, Nintendo ponied up more than $38 million in escrow in order to keep peddling the gadgets. Attorney DOUG CAWLEYand others from Dallas-based McKool Smith represented Anascape in the patent litigation and helped win a $21 infringement verdict against Nintendo in May that recently was approved by the federal court.

by Robert Tharp at 4:51:40 pm

A few recent items out there on the interwebs point to the marketing power of blogs and configuring Web sites and their content for search engine optimization.

A study by eMarketer has some surprising findings regarding the way news reporters use blogs in the news-gathering process. According to this survey, nearly 40

percent of news reporters use blogs as a way to find subjects to write about. Nearly 30 percent use blogs as a way to find quotable experts. Even though there are more than 2,000 law-related blogs out there, this study confirms what many of us have already known, that blogs are an excellent way to improve your professional profile.

On a related note, this law.com story offers a pretty basic primer on the importance of search engine optimization for law firm Web sites. The basic message: spending some time on your website and updating content(including blogs) can pay huge dividends. The piece raises an interesting rhetorical question: if search engine optimization works then why don't more people use it?

by Robert Tharp at 2:38:57 pm

The current state of the economy is causing all kinds of expansion and contraction in the legal world. At Munck Carter, P.C., the firm sees an opportunity to boost its

technology and intellectual property practice with three new hires. The Dallas-based firm recently announced the additions of attorneys Dyan M. House, N. Elizabeth Pham and David Roe, all joining the firm's intellectual property section. The move also highlights how intellectual property remains a red hot practice area for many Texas firms.

All three have impeccable credentials. House concentrates her practice in the areas of trademark, copyright, franchising and licensing and counsels clients ranging from restaurants, retail establishments, engineering firms, software companies, wireless service providers and non-profit organizations. Pham focuses on intellectual property portfolio development and patent enforcement, representing clients before the U.S. Patent and Trademark Office. Roe's practice centers around intellectual property portfolio development and intellectual property litigation. He represents clients in various high-tech industries, including polymer chemistry, medical imaging devices, computer hardware and software, and semiconductor devices.

Munck Carter, P.C. has carved out a practice devoted to trials, transactions and technology. With offices in Dallas and Marshall, Texas, the firm offers full-service counsel in the areas of complex commercial litigation, intellectual property management and protection, corporate transactions and securities, and employment matters. Munck Carter represents clients from start-ups to Fortune 500TM companies.

by Robert Tharp at 2:02:11 pm

More than 25,000 top CEOs, GCs and other in-house counsel have begun receiving this year's roundup of top business attorneys as selected by Super Lawyers
Corporate Counsel Edition. Honorees are slected among lawyers nationwide who have already been singled out as Super Lawyers through peer nominations and review by a blue-ribbon panel of lawyers. Texas attorneys feature prominently on the list, including six from the Dallas, Austin and New York offices of McKool Smith, P.C., along with four attorneys from teh Dallas and Houston offices of Gardere Wynne Sewell LLP.

At McKool Smith, firm principals Doug Cawley, Ted Stevenson and Robert Manley of Dallas; Gordon White and Steve Pollinger of Austin; and Robert Cote of New York are included for their work in intellectual property litigation.

At Gardere, Dallas partners Kenneth R. Glaser, Andre M. Szuwalski and Peter S. Vogel were recognized for their intellectual property work, while Houston partner Jeffrey S. Davis was featured for his civil litigation defense work.

 

by Robert Tharp at 3:49:08 pm

One of Dallas' oldest law firms is moving into new digs this week. Thompson & Knight is filling up six floors totaling 180,000 square feet in One Arts Plaza in the Dallas
 
Arts District. The offices offer impressive and innovative features like a biometrics security system and a number of environmentally conscious design elements that helped the it secure registration with the U.S. Green Building Council. Lead-free glass allows better transmission of light inside the offices and a specially designed "Mother's Room" has lactation equipment and other amenities for working mothers. The firm is pursuing LEED-CI Silver Certification, which recognizes interiors that are healthy, productive places to work and that are less costly to operate and have a reduced environmental footprint. The firm's lease fills out the space at the recently completed One Arts Plaza in the heart of the city's Arts District.

by Robert Tharp at 3:48:06 pm

Those waiting for a magic bullet to solve the country's energy woes better settle in for a long wait, says Renato Bertani of Thompson & Knight Global Energy Services. In the meantime, lifting the ban on U.S. offshore drilling is one component that will lead to a diversified energy plan. Despite the promise and excitement of

 
alternative energy, Bertani says oil production will remain the backbone of the country's energy needs for the foreseeable future.  "Fossil fuels will continue as the main source of energy for at least a few more decades," he says. "Oil and gas resources in frontier exploration areas and the extra-heavy oil and tar sands are economically feasible and very attractive in light of new technologies, better environmental management and the higher energy prices. In the long term, the security of our energy supply will have to be based on a broad mix of sources and mutually beneficial interdependence between energy producers and consumers." To interview Mr. Bertani about energy issues, contact Barry Pound at 800-559-4534 or barry@androvett.com.

by Robert Tharp at 3:04:57 pm

Thompson & Knight partner Pauline E. Higgins penned a thoughtful piece for Texas Lawyer on the toll of what she calls "microinequities." Few of us work with someone whose lack of tact compares
to Simon Cowell's shtick on "American Idol." You know his trademark phrase, "...I don't mean to be rude, but..." However, Higgins maintains that practically imperceptible communication habits and mannerisms, i.e. "microinequities," can have a profound influence on workplace morale. She cites things like dismissing one employee's idea only to embrace it when it's paraphrased by another or subtly excluding some employees from social activities. It's a well-written piece that's worth a read. She ends with this profound quote from an unknown author:

Be careful of your thoughts; they become your words;
Be careful of your words; they become your actions;
Be careful of your actions; they become your habits;
Be careful of your habits; they become character;
Be careful of your character; it becomes your destiny

by Unknown at 1:31:24 pm

We told you previously here about the collosal number of defective Chinese-made tire valve stems rolling down American roads today. The estimated number of these

faulty values has jumped from 6 million to 20 million and is the subject of a nationwide safety alert. That's a chilling prospect for motorists since there's no easy way to identify the valve stems, and when the valves go bad it causes a blowout-like loss of air pressure, says attorney John Cummings of Laird & Cummings P.C. Cummings spoke with Ken Kalthoff at KXAS Ch. 5 about problems with alerting motorists to the hidden danger. Kalthoff's advanced this story with news that some tire retailers are notifying customers about the potential dangers caused by the valves.

by Robert Tharp at 1:51:12 pm

The stiff penalties that corporate America faces relating to trade secrets has led to some high-profile self-policing. Hewlett-Packard chose to turn in one of its own vice presidents 
for disseminating a confidential IBM memo that he had taken from his previous job at IBM. Atul Malhotra is now a former HP employee facing charges of theft of corporate trade secrets and faces up to 10 years in prison and a fine of up to $250,000. Bill Munck of Dallas' Munck Carter says that companies wh want trade-secret protections under federal law must take reasonable measures to protect such proprietary economic information. "What constitutes ‘reasonable' is open to debate, but the territorial scope of the federal Economic Espionage Act is arguably limitless and criminalizes not only theft of trade secrets within the United States, but under certain conditions thefts made in other countries."

by Robert Tharp at 4:37:03 pm

Considering that both presumptive presidential candidates are on the record in favor of federal climate-change legislation, many U.S. corporations feel it's only a matter of

 
time before a company's "carbon footprint" will be subject to public disclosure a la Sarbanes Oxley, which requires companies to disclose business risks in public filings.  Richard O. Faulk, chair of the Gardere Wynne Sewell LLP Litigation Department, says emissions regulation of some type appears inevitable. There's even a clever name for it: Carbox. Faulk predicts a ramp up for law firm climate-change practices as corporate directors and executives work to make sure their companies' have properly disclosed emissiones risks. "Global climate change clearly presents challenges and risks for corporate governance, including Sarbanes-Oxley liability and shareholder suits," he says. "Moreover, companies that go through mergers and acquisitions must undertake due diligence to understand both their own and their negotiating partners' carbon footprints. Uncalculated risks can translate into incalculable liabilities, even criminal prosecution. Wise executives are implementing climate-change strategies now instead of waiting for the government's hammer to fall."

by Robert Tharp at 3:42:20 pm

A Boston attorney's class-action lawsuit against Google is interesting for so many reasons. Advertising with Google AdWords is an inexact science, so
 
Hal K. Levitte's complaint that his Google ads were ineffectively relegated to parked domain pages(pages that have no content except for targeted ads that viewers may inadvertantely stumble upon during keyword searches) or error pages is potentially important. Afterall, 99 percent of Google's revenue comes from ad sales, according to InformationWeek. But here's what jumped out at me in this story, Levitte complains that he got no paying clients from his Google endeavor. But his Google annual pay-per-click budget was just $136(out of a total advertising budget of $887) and he still somehow got 668 clicks to his site. His advertising strategy appears to be little more than trying to direct Internet viewers to his anemic Web site. Kinda makes you wonder what he was expecting to achieve in the first place.

by Robert Tharp at 1:40:33 pm

Budweiser and the rest of the Anheuser-Busch empire now belong to a European company few on American soil have ever heard of. The $52 billion acquisition creates

 
the fourth-largest consumer product company for Belgian brewer InBev. The purchase of this iconic American brand is the latest example of foreign consortiums taking advantage of the weak dollar and gobbling up U.S. companies, says attorney DALLAS PARKER, who focuses on complicated mergers, acquisitions, corporate governance and related matters as managing partner of Thompson & Knight's Houston office.  In this case, Parker says the deal makes good financial sense for InBev not just because of the weak dollar. "Another factor is the value of the basic product. A product such as beer typically retains consumer demand even in an unstable economy," he says. To interview Mr. Parker about M&A trends, contact Barry Pound at 800-559-4534 or barry@androvett.com.

by Robert Tharp at 4:31:45 pm

Will the next Woodward and Bernstein be citizen journalists who get the news out via blogs? Bloggers at the political Web site, Room 8, have certainly gotten the

attention of New York movers and shakers. As reported by the New York Times and others, prosecutors served a grand jury subpoena to the Web site earlier this year along with a saber-rattling warning that blogging about the subpoena would amount to illegally interfering with an active investigation. The gag order was later dropped after the bloggers threatened to sue. Along the way, the tactics raised serious concerns among free-speech advocates. For Peter Vogel, who focuses on Internet law and technology at Gardere Wynne Sewell LLP, the case is the latest example of how laws are not keeping pace with rapidly advancing electronic medium. "When the first Internet browser was released as a public utility, no one even dreamed of blogging. The courts simply don't have a body of law on which to base their rulings," he says. "Courts are generally slow to adapt to major social change because existing laws don't necessarily fit the new situation. These complex cases will continue to vex the courts until that body of law develops."

by Robert Tharp at 4:18:05 pm

You never know what'll get you on the cover of Texas Lawyer, and it's not always the latest windfall verdict or professional faux pas. Staff writer Jenny B. Davis dug down
 
 Future firm partner
deep for her July 14 feature, beyond the CVs of some of the state's most respected legal minds to find an interesting common denominator: fast food experience in their formative years. Her premise: that those early jobs helped make these individuals the attorneys they are today.

For Thompson & Knight associate Kevin Pennell, scooping ice cream at Baskin Robbins at age 14 taught him something about teamwork in a professional context that still rings home. Every time TK partner W. Mark Bennett quickly reads a crowded room or sizes up opposing counsel across a table, he's grateful for the hours he logged at a Chuck E. Cheese in Arlington, wearing a hot and unwieldy rodent costume.

"When you're walking out and you could see the little kid whose birthday it was, you learned how to read a face really fast to know whether they were going to run and hide or run and hug," Bennett told Davis. "Now that's part of my job - to read people, to give clients the best advice we can based on instincts."

That's what I call valuable professional experience. Great journalism? I didn't spit out my Cheerios and yell `Hey Martha!' but the piece made me think a little and sparked some office conversations. And that's more than can be said for many articles that I read. Me? I'm struggling to recall any redeeming life lessons from slinging burgers at Wendy's, except that the long hot and underpaid Austin summer was powerful motivation to finish college. And don't eat the chili.

by Robert Tharp at 10:32:28 am

Just a few weeks ago, we reported here about how wildly popular LinkedIn has become among lawyers and law firms, adding roughly tens of thousands of attorneys to its roles each month in 2008. Here's further proof that LinkedIn has emerged as

 
the killer ap in the world of lawyer and law firm directories. Martindale-Hubbell, the gold standard of traditional lawyer directories and attorney ratings, has now installed LinkedIn links within its attorney and law firm listings. Every attorney or law firm in Martindale-Hubbell's directory now has a LinkedIn link right beside their name. Hitting the link transports visitors to the attorney's or firm's dynamic online profile, which offers the ability to include expansive material about expertise and background, as well as an interactive social network of connections and peer or client recommendations. Credit goes to Kevin O'Keefe at Real Lawyers Have Blogs for reporting this first. Another reason to join: LinkedIn has also proven to do a powerful job attracting search-engine optimization through Google alogorithms. It's the first of the vast array of social media networking options that has clearly demonstrated its usefullness, and thus appears to be here to stay.   

Finally, a survey of 650 lawyers released last week found that nearly half are already members of some type of online social media network, and more than 40 percent believe online professional networking has great potential. The survey, which was bankrolled by Martindale-Hubbell, concludes that a need exists for a private, online legal network. The survey reports that lawyers are primarily interested in generating client and peer referrals(big surprise there) and are generally frustrated with their ability to stay connected with peers and colleagues. Fifty-four percent of in-house counsel and 41 percent of private-practice attorneys indicated that the ability to link to other attorneys and expand their networks as the most important feature of social media networks like LinkedIn. 

 

 

by Robert Tharp at 3:56:35 pm

Attorney Kathleen Campbell Walker has long been an important voice in the national debate over immigration reform through more than 20 years working as an El Paso

 
attorney focusing on immigration law and cross-border business issues, as well as her work as immediate past president of the American Immigration Lawyers Association. Walker, a partner in Brown McCarroll's El Paso offices, is a widely published authority on this important issue and has frequently testified before Congress and state lawmakers. She now has a new role in the policy arena serving on an independent task force on immigration policy for the distinguished Council on Foreign Relations. She's in important company, sharing membership wtih the likes of former Florida Gov. Jeb Bush and former White House chief of staff Thomas "Mack" McLarty, among others.

by Robert Tharp at 11:23:24 am

In a potentially important victory for employee privacy, San Francisco's 9th U.S. Circuit Court of Appeals came out with a big ruling limiting the ability of employers to
 
obtain transcripts of employee e-mail and text messages. The ruling focused on electronic communications that are stored off-site by third-party services(as most text messages are) and e-mails maintained on external servers and found that the Ontario(Calif.) Police Department violated an officer's privacy by retrieving the content of his text messages without a warrant. But Thompson & Knight attorney David Furlow cautions that the case's impact may be limited, and more-conservative courts may choose to ignore the ruling. "Anyone using an employer's e-mail should still assume that his or her boss may read even the most private text or e-mail message," Furlow says.

by Robert Tharp at 11:09:18 am

Those tiny wireless RFID chips that are revolutionizing the way shipping companies and retailers monitor inventories have also proven extremely useful for hospitals
tracking expensive medical equipment(some hospitals are even implanting chips in patients that allow medical staff to instantly view a patient's medical history). But the Journal of the American Medical Association now warns that those radio frequency identification chips are potentially hazardous to patient care by interfering with electronic medical equipment. According to the Journal report, Danish researchers conducted 123 tests and found that the chips caused interference in one out of every six tests. Two of those instances were classified as having a "significant" adverse impact. "What an irony it is turning into that something that is designed to help may actually be adversely affecting patients," says Peter S. Vogel of Gardere Wynne Sewell LLP. "This revelation may lead to new personal injury litigation heretofore not identified. It is likely that courts will have trouble sorting the health benefits of RFID with the new-found risk to patients."[[page_break]] To interview Mr. Vogel about RFID issues, contact Rhonda Reddick at 800-559-4534 or rhonda@androvett.com.  

by Robert Tharp at 2:00:37 pm

Whether you're the guy with the name on the door or the one who sorts the mail, chances are you use the Internet connection at work for personal matters, according

to a new academic study. While the report concludes what most of us expected, researchers say that this trend is not necessarily bad for business productivitiy. Labor and employment attorney Audrey Mross of Dallas-based Munck Carter PC agrees, saying workplace Internet access has changed the way employees work and handle personal matters, and employers should "pick their battles" rather than implementing restrictive policies for on-the-job Internet use. Moreover, employers who use a knee-jerk reaction rather than a consistent policy are exposing themselves to potential litigation. "Most workers will strike a balance without the need for restrictive policies," she says. "There will always be a few rogue abusers who can be addressed individually, rather than handcuffing an entire organization with overbroad policy statements." To interview Ms. Mross about workplace Internet trends and recent court decisions, contact Robert Tharp at 800-559-4534 or at robert@androvett.com.

by Robert Tharp at 1:25:19 pm

A distinguished crowd was on hand as Thompson & Knight partner Jorge G. De Presno-Arizpe was inaugurated as President of the Inter-American Bar Association during a

 
ceremony in Lima, Peru, last month. Mr. De Presno, a partner in the firm's Mexico City offices, is only the fourth Mexican lawyer to lead the Washington D.C.-based organization, which represents lawyers and jurists from 17 nations across the Western Hemisphere. His swearing-in took place before a crowd that included Peru's vice president, the Mexican ambassador to Peru, several members of the Peruvian judiciary, and more than 500 lawyers from countries throughout North, Central, and South America; the Caribbean; and Spain.

Mr. De Presno focuses his practice on advising corporations on labor, employment, and Social Security law, including privatization procedures for public corporations. He also has broad experience in collective bargaining negotiations and strike procedures, labor litigation, and counseling at both the state and federal levels.

by Robert Tharp at 11:32:56 am

The U.S. Department of Transportation has opened an investigation into faulty replacement tire valves made in China that are now the focus of a nationwide recall. The

 
trouble could just be beginning, warns Fort Worth personal injury and wrongful death attorney Steve Laird of Laird & Cummings. More than 30 million tire valves could be affected and at risk of cracking prematurely, causing tires to lose air quickly and leading to tire failure, according to Consumer Reports. "Most drivers will have a hard time figuring out if they have a defective valve on their tires," says Laird. "That's because once the valve stem is installed, the only way to check is to take the tire off and inspect it from the inside."

According to Consumer Reports, Robert Monk of Orlando, Fla. died when the right rear tire of his 1998 Ford Explorer failed, triggering a rollover crash. The failure of the tire, which was installed in the fall of 2006, has been linked to a cracked Dill TR-413 valve stem manufactured by a subsidiary of Shanghai Baolong Industries for Dill Air Control Products. In March, the Monk family filed suit against Dill Air Control Products, alleging that the defective tire valve stem caused the crash.

To interview Mr. Laird about tire safety issues, contact Bruce Vincent at 800-559-4534 or bruce@androvett.com.

by Robert Tharp at 4:47:00 pm

An enormous ruling came out of the Rhode Island Supreme Court this week, protecting manufacturers of lead paint from liability for creating a “public nuisance.” The
Wall Street Journal praised the ruling in a lead editorial(subscription required). Beginning with the headline, “Another bogus legal theory gets the boot,” the WSJ editorial goes on to say “…the state Supreme Court stopped cold an attempt to turn lead paint into the next tobacco or asbestos." The ruling capped nine years and two jury trials and reversed a verdict that some estimated would have cost paint companies $2 billion.

Now for the Texas connection: a law review article on such public nuisance litigation co-authored by Gardere Wynne Sewell LLP partners Richard O. Faulk and John S. Gray had an enormous effect on the court’s ruling. You won’t find Alchemy in the Courtroom? The Transmutation of Public Nuisance Litigation and the Michigan State Law Review on the news rack at Barnes & Noble, but the Supreme Court justices were obviously very familiar with it. The justices referenced the paper on four different occasions in their ruling. Faulk, who chairs Gardere's Litigation Department, calls the ruling a conclusive defeat for the expansion of public nuisance torts that will likely influence a wide range of other industries. "Advocates pursuing public nuisance lawsuits in other contexts, such as climate change, should take special notice of the court's rejection of an activist approach," he says.

by Robert Tharp at 1:49:17 pm

The airline industry's woes are trickling down in ways that the mainstream media are just beginning to report. Consider WFAA-TV reporter Jason Whitely's July 1 story on
how airline cost-cutting will result in the loss of commercial service for nearly 100 airports across the country. An even greater number of airports will see significantly reduced commercial air service. All of this will surely have an impact on surrounding economies that rely on revenue from the steady stream of passengers and ancillary services, as well as economic development efforts to attract new businesses, Whitely reports. And as Dallas aviation attorney David Norton explains in the piece, the industry is experiencing a paradigm shift caused by the relentless rise of fuel prices, and the commercial air service will probably never return. "I think that's over," says Norton, a partner at Dallas-based Shackelford Melton & McKinley. "I don't really ever see that coming back, not in the form that we've had it. There might be some changed system, but not like it used to be."

by Robert Tharp at 3:25:27 pm

Who wouldn’t have pitied little Anascape Ltd. of Tyler, Texas, when it went up against Nintendo of America Inc. nearly two years
 
ago, seeking to protect its patents for technology used in Nintendo game controllers including the GameCube, Wavebird, Wii Classic and Wii Remote. Anascape’s attorneys at Dallas-based McKool Smith, PC, were unfazed by the prospect of battling an army of corporate attorneys with unlimited resources. Following a trial in the Eastern District of Texas that ended May 14, a jury awarded the small company $21 million for its patent infringement claims. And just last week, the Hon. Ron Clark of the U.S. District Court for the Eastern District of Texas, Lufkin Division, denied the defendant's motion for a reduced verdict, finding that the jury's award is supported by the evidence. The McKool Smith team included firm principals  Doug CawleySam Baxter and Ted Stevenson, and firm associates Chris Bovenkamp, Steven Callahan, Jason Cassady, Anthony Garza, and Jamie Shouse.



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