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Androvett Blog

by Robert Tharp at 4:36:38 pm

A small, Texas-based software company that does business as FirePond has filed an ambitious class-action suit, taking on Internet behemoth Google for its practice of

selling trademarked words and phrases through it pay-per-click AdWords service. The suit charges that Google infringed on its trademark by allowing competitors to purchase the word "FirePond," which effectively drives potential customers to competitors' services. While individual companies like American Airlines and Geico have filed similar complaints, Trademark attorney Dyan House of Dallas' Munck Carter says this litigation stands out because it attempts to gain class-action status. "Potentially, that makes it a much bigger case, but I doubt the court is going to certify this as a class," Ms. House says. "Still, the underlying issue of whether an enterprise's trademarks can be sold by another as an Internet search keyword that links to competitors is commercially very important."

A second, similar class-action was filed Monday, Online Media Daily reports. To interview Ms. House about trademark infringement issues, contact Mark Annick at 800-559-4534 or mark@androvett.com.

by Robert Tharp at 1:26:41 pm

When President Obama unveiled proposed changes to the U.S. tax code last week, the underlying message was that a crackdown on so-called offshore corporate tax havens would be a win-win for tax coffers and U.S. jobs. But many international tax experts say it's just not that simple, and the Obama proposal threatens to compound the problem because businesses typically hire off-shore not to take advantage of a tax loopholes but because of wages are so much lower. The Obama plan, which still requires approval from Congress, would reduce the incentive for U.S. companies to invest abroad by limiting available deductions on things like payroll expenses and restricting eligibility for foreign-tax credits.

Cym Lowell, an international tax attorney at Gardere Wynne Sewell, says the tax proposal will hurt the U.S. companies' competitiveness abroad and will not likely have the intended effect. "U.S.-based companies already face a higher tax rate when they enter the global marketplace and this would further penalize them," Lowell says. "To wrap these proposals in the swaddling cloth of ‘protection of U.S. jobs' is dangerously simplistic." Gardere partner Mark Martin agrees, "Obama needs to be sensitive to the ability to be competitive. It is attractive political rhetoric to call for higher taxes for big business, but the reality is not nearly so obvious." To interview Mr. Lowell or Mr. Martin, contact Rhonda Reddick at 800-559-4534 or rhonda@androvett.com.

by Robert Tharp at 4:09:37 pm

Pity RealNetworks. The plucky technology firm is facing an uphill battle - and mounting legal costs - as it goes up against the Motion Picture Association of America 

over its RealDVD software that allows consumers to copy DVD movies to computer hard drives. The company and its supporters maintain that the MPAA is overreaching in its charges that the software violates the Digital Millennium Copyright Act.

Cnet reports: Legal fees also took a major toll. Since late last year, RealNetworks has been embroiled in a legal battle over its RealDVD software, which can rip a digital copy of commercial DVDs onto a personal computer. Hollywood, courtesy of the Motion Picture Association of America (MPAA), has sued RealNetworks to prevent the company from selling the program. Since 2008 RealNetworks has shelled out $6 million in legal fees and associated costs to defend RealDVD.

Technology litigation veteran Ted Stevenson of Dallas' McKool Smith says if history is any indication, RealNetworks is facing difficult odds. "In 2004, a court in the Northern District of California ruled that DVD-copying software from 321 Studios violated the Digital Millennium Copyright Act," he says. "That software was sold to ostensibly permit consumers to back up their DVD purchases, but 321 Studios lost because its product had no safeguards to prevent copying of borrowed or rented DVDs. Like that case, a key fact in this case is whether RealNetworks' accused product contains adequate safeguards." To interview Mr. Stevenson, contact Bruce Vincent at 800-559-4534 or bruce@androvett.com.

by Robert Tharp at 11:05:58 am

Labor and Employment attorney Mark Shank says overuse of covenants could diminish their utility.
The Texas Supreme Court has further expanded employers' ability to enforce non-compete agreements with workers, and the result will likely be even greater use and
popularity of these agreements in Texas, says Mark Shank of Dallas' Gruber Hurst Johansen & Hail. In Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, Texas Supreme Court justices overturned rulings by two lower courts and in the process granted more leeway for businesses to enforce these covenants. The case centered on accountant Brendan Fielding's challenge to the enforceability of a non-compete agreement he had with his former employer, Mann Frankfort Stein & Lipp Advisors. Fielding argued that Mann Frankfort had not "expressly promised" to reveal confidential information to him in the course of his job(such express promises were the previous threshold for enforceability identified by the Texas Supreme Court in Sheshunoff Management Services, L.P. v. Johnson). The Supreme Court ruling expands the reach of these covenants by ruling that there can be an "implied promise" from employers that working with confidential information is part of an employee's job duties.

Shanks says the ruling opens the door for even more reliance on these agreements in Texas. "A natural result may be that businesses become more aggressive in trying to tie up lower-level employees with these types of covenants." But businesses should be concerned that overuse of non-competes could dilute their power. "You can diminish the value of these agreements by applying them too broadly or by taking a one-size-fits-all approach with your workforce."

by Robert Tharp at 4:30:44 pm

Until now, the drama behind "The Secret" has been relegated to the wildly successful movie and book franchise. While the works intriguingly explore the "Law of
Attraction," the story's director and co-writer is heading to a Chicago courtroom to prove that the law entitles him to fair compensation for his contributions to the work. The stage is now set for a May 11 trial in a Chicago courtroom involving The Secret's director and co-writer, Drew Heriot.

Originally released in March of 2006 for DVD and online sales, "The Secret" uses a documentary format of interviews and dramatized sequences to present what is called the "Law of Attraction." Embraced by many self-help experts and the subject of extensive media coverage, the film teaches that thoughts and feelings attract real events into individuals' lives, creating a basis for a higher sense of personal and spiritual fulfillment.

Attorneys Mark Werbner and Darren Nicholson from Dallas' Sayles Werbner represent Mr. Heriot. "We know 'The Secret' would never have existed if not for Mr. Heriot's contributions," says Mr. Werbner. "His ownership rights in the creation of these materials should be upheld."   To interview Mr. Werbner about the case, contact Bruce Vincent at 800-559-4534 or bruce@androvett.com.

by Robert Tharp at 2:20:12 pm

Country Music Hall of Fame inductee and 20-time Grammy Award winner Vince Gill headlines tonight's Vogel Alcove Annual Arts Performance at the Morton H. Meyerson
Symphony Center in the Dallas Arts District. Dallas-based law firm McKool Smith donated $75,000 as one of two Paramount Sponsors of the 18th annual event. The charity performance generates funding for more than half of the nonprofit's annual budget.

Vogel Alcove provides a range of free services for homeless infants, preschool children and under privileged families in North Texas. McKool Smith has been a proud sponsor of the organization for 15 years. The Vogel Alcove is the only comprehensive early childhood education program in the city of Dallas whose primary focus is to provide free services for homeless children who face multiple developmental risks.  Because of the Alcove’s 21-year legacy providing quality, licensed childcare and social services for children victimized by homelessness, 18 area affiliated homeless shelters, domestic violence shelters, and housing programs depend on the Alcove to provide services to the homeless families at their shelters.

"We are privileged to support an organization that serves such a vital role in helping those in our community who are perhaps least likely to have means to support themselves - the children of homeless families," says Mike McKool, co-founder of McKool Smith. Tickets for tonight's concert are still available through the TITAS box office at 214-528-5576 or through the Vogel Alcove Web site, http://www.vogelalcove.org/.

by Robert Tharp at 1:37:11 pm

To get an idea of how serious this swine flu threat is for the business world, consider this factoid about the great 1918 Spanish Flu epidemic in an interesting piece in today's Wall Street Journal. Besides killing 50 million people around the world, that pandemic is considered the fourth-ranking global financial catastrophe since 1870.

Even though the swine flu so far is not as virulent as feared, it is having an enormous effect on businesses, workers and their families. In light of Texas Gov. Rick Perry's disaster declaration linked to swine flu, employment attorney  Audrey Mross of Munck Carter in Dallas says employers should have a plan for responding to personnel complications from the spread of the virus. "The list of questions for employers to answer is fairly long," Mross says. "If you've got a slightly sick employee, do you have the ability for him or her to work from home? If you have a healthy employee who isn't comfortable coming to work, what do you do? Do you continue wages and salary during these absences or ask employees to use paid time off? There are all sorts of dilemmas that come up." To interview Ms. Mross about swine flu and the implications for employers, contact Mark Annick at 800-559-4534 or mark@androvett.com.

by Robert Tharp at 11:30:18 am

Jobs provided by oil and gas production are welcome bright spots in the North Texas economy, but the often risky work no doubt provides plenty to worry about for
workers and their families. After a North Texas man died in an oilfield mishap involving a rig relocation conducted by I.E. Miller Services(now known as Compleat), his struggling family was able to secure a multimillion-dollar settlement designed to provide at least some economic security for the man's six-year-old daughter. But four months after the monetary agreement was reached, the girl still hasn't received a penny.
The child's attorney, Steve Briley of Banner Briley & White LLP in Wichita Fallas, says insurance companies are to blame for inexplicably putting up a roadblock to the release of the funds by contesting the type of annuity the family wishes to use to safeguard the money for the child. To interview with Mr. Briley, please contact Rhonda Reddick at 1-800-559-4534 or rhonda@androvett.com.

by Robert Tharp at 4:59:43 pm

Web 2.0 has created a loosey-goosey world out there for corporate communications. Twitter, blogs, instant messaging and other up-and-coming mediums create plenty to worry about from a corporate communications standpoint, says Chris Schaeper of Houston's Thompson & Knight. As corporate America and employees embrace these new mediums for marketing and networking, Schaeper says that executives can't afford to forget that all corporate communications are ultimately subject to SEC regulations. "Communicating too freely can cause headaches for public companies, and securities laws exist to assure that corporate information is distributed evenly and fairly," he says. The SEC has barely caught up to e-mail communications, much less chat rooms and message boards. As a result, Schaeper recommends a periodic review of communications policies. "The Tweeting rage has added a fresh reason to do so - and sooner rather than later." To interview Mr. Schaeper, contact Barry Pound at 800-559-4534 or barry@androvett.com.

by Robert Tharp at 11:25:34 am

Attorney Jared Woodfill: BNSF intentionally mislead government inspectors about scope of contamination
A third-party industrial waste cleanup worker who was asked to clean up toxic contamination on the grounds of a railroad tie treatment plant operated by Burlington

Northern Santa Fe Railway testified Friday that he was `shocked' by the level of contamination, as well as plant supervisors' disregard for the health concerns posed by the solvents and other chemicals used at the 100-year-old treatment plant.

As reported by The Eagle in Bryan/College Station, Mike Zientek told jurors on the second day of trial testimony that the plant failed to adequately clean up a 1,000-gallon chemical spill and that plant supervisors scoffed at the idea that creosote and other solvents used to treat railroad ties posed a danger to workers or Somerville residents. An earlier witness in the trial, Dennis Davis v. Burlington Northern Santa Fe Railway underway in Caldwell, Texas, testified that plant supervisors advised him that creosote, a known carcinogen baned in Europe and Canada, was not dangerous and was good for clearing up sinuses.

Lawsuits filed by hundreds of

Somerville, Texas, residents charge that a 100-year-old, continuously operating railroad tie processing plant has caused widespread toxic contamination in Somerville and high concentrations of cancer among residents. Scientific and medical studies suggest that toxic pollution from the railroad tie treatment plant has caused a serious health problem in Somerville. Lawsuits charge that the company's negligent use of toxic chemicals caused widespread environmental contamination that has sickened employees, their families and town neighbors.

by Robert Tharp at 2:02:13 pm

Dallas-based McKool Smith already enjoys the distinction of having more National Law Journal Top 100 verdicts for 2008 than any other firm in the country. This year is already looking up for the firm as it continues to add experienced attorneys and score big verdicts and court rulings.
Most recently, the firm obtained a $19 million patent infringement verdict against Apple Inc. relating to rights to technology owned by Palo Alto, Calif.-based Opti Inc. The
patent dispute focused on claims by Opti that Apple was infringing on its patent for software that enables a "pre-snooping" function that eases transfers of data between a computer and other devices like hard drives and iPods. Attorneys from Dallas' McKool Smith and Chicago's Winston & Strawn represented Opti, including McKool Smith's Rosemary Snider, Gary Kitchen, Jason Cassady and Carol Butner. The verdict was awarded as fair and reasonable compensation to Opti for Apple's willful patent violation.
Last week, attorneys in the firm's New York office received a partial summary judgment and injunction against New York-based Liz Claiborne Inc. and its subsidiary, Los Angeles-based Lucky Brand Dungarees Inc. In the ruling(available here), the court found infringement against the Lucky Brand entities over their sale of garments bearing the unauthorized "Get Lucky" mark. The court further ruled that the infringement constituted unfair competition under federal and New York laws, including violations of New York's General Business Law. The court also found that Lucky Brand breached a 2003 settlement agreement between the parties governing the use of the "Get Lucky" mark. The court's ruling permanently enjoins Lucky Brand from ever using Get Lucky on apparel, fragrances and accessories.
Marcel Fashion and Get Lucky are represented by lead trial counsel Ann Schofield Baker, a principal in McKool Smith's New York office, and Lawrence I Fox, a New York partner in McDermott Will & Emery.
For verdict information, contact Bruce Vincent at 800-559-4534 or bruce@androvett.com.

by Robert Tharp at 9:43:01 am

Attorney Jared Woodfill to shine light on Burlington Northern's dark secret about cancer clusters, toxic pollution in Somerville, Texas.
The first full day of testimony is underway today in a major toxic contamination trial against Burlington Northern Santa Fe Railway. Lawsuits filed by hundreds of

Somerville, Texas, residents charge that a 100-year-old, continuously operating railroad tie processing plant has caused widespread toxic contamination in Somerville and high concentrations of cancer among residents.
Scientific and medical studies suggest that toxic pollution from the railroad tie treatment plant has caused a serious health problem in Somerville. Lawsuits charge that the company's negligent use of toxic chemicals caused widespread environmental contamination that has sickened employees, their families and town neighbors.
Among other things:
• A recently completed epidemiological study has found that the rates of cancer in Somerville are 10 times greater than a similar small Texas town used as a control group. Additionally, the overall rates of cancer, and specifically colorectal and stomach cancers, are far greater than the National Cancer Institute's SEER stats project for such populations.
• Independent scientific analysis shows that Somerville residents continue to be exposed to high levels of harmful dioxins, chromated copper arsenic(CCA) and polycyclic aromatic hydrocarbons(PAH's) like pentachlorophenol(PCP) and benzo(a)pyrene.
A jury of nine women and five men has been seated in the case of Dennis Davis v. Burlington Northern Santa Fe Railway. The first witness in the trial, former tie plant employee Robert Urbanosky, testified Thursday that employees expressed concerns about the safety of creosote more than 20 yeras ago and were reassured that the carcinogenic chemical posed no health risks.
"He told us all creosote would do is open up your sinuses," Urbanosky said.

by Robert Tharp at 4:43:11 pm

With Mexico on high alert regarding the spread of swine flu, U.S. law firms with offices in Mexico have been acting quickly this week to implement contingency plans

that allowed lawyers and staff to work from home.

At Thompson & Knight's Mexico City office, firm partners made the decision to have the office's lawyers, paralegals and staff to work from home while being connected via laptops and smartphones. The office switchboard remained in operation and the office remains open for meetings and other special needs.

Likewise at Gardere Wynne Sewell LLP, the firm initially made sure that there were plenty of facemasks, hand sanitizer, individual water bottles and paper towels for its Mexico City office, which operates as a partnership under the name Gardere, Arena y Asociados, S.C. But as concern multiplied, the firm made the decision to keep lawyers and staff at home at least until Monday, May 4(Friday is a national holiday in Mexico).  A sign of things to come here in the U.S.? Let's hope not.

 

 

by Robert Tharp at 1:26:05 pm

With the EPA formally declaring Carbon Dioxide a dangerous pollutant last week, the stage is now set for the creation of a cap-and-trade market for greenhouse gases. 
What's the big deal about CO2(the bubbles in beer) and five other heat-trapping gasses being considered pollutants? Plenty, says Richard O. Faulk, chair of the Gardere Wynne Sewell LLP Litigation Department. For one thing, the ruling provides another indication that the Obama administration is serious about climate-change policy. As a result, Faulk says now is the time for businesses to look forward and find opportunities in the new regulatory landscape. "The administration has even gone so far as to offer a ‘warning' to American investors about investing in ‘high-carbon' assets such as coal-fired power plants and gas-guzzling cars," Faulk says. "Businesses need to be aware of the administration's position and use it to their advantage. ‘Wait and see' is not the answer; you have to be ready to capitalize when compliance and trading opportunities arise. Now more than ever, knowledge is economic power." To interview Mr. Faulk about climate-change issues, contact Rhonda Reddick at 800-559-4534 or rhonda@androvett.com.

by Robert Tharp at 3:53:21 pm

The psychiatric care provided to children and teens sent to residential treatment facilities operated by Austin-based Youth and Family Centered Services was far from touchy feely. According to litigation filed by attorneys at Fish & Richardson, along with the U.S. Department of Justice, the experience for many troubled young clients at these facilities was marked by woefully inadequate staffing and dangerous physical restraints. To top it off, YFCS billed the Medicaid system for reimbursement for treatment that has since been described as inadequate or worthless.

On Thursday, YFCS and its subsidiary Southwood Psychiatric Hospital settled the lawsuit, agreeing to pay $150,000 to reimburse Medicaid and implement comprehensive new treatment standards and adhere to increased governmental oversight of its programs. Among other things, the for-profit company, which operates 13 residential psychiatric facilities across the nation for children aged 6 to 18, will hire two full-time compliance officers to ensure its programs are operating lawfully.

This settlement marks the first resolution by the Justice Department of a failure of care case against residential psychiatric treatment facilities in Pennsylvania.

Fish & Richardson represented Dr. Stefan P. Kruszewski, a board-certified psychiatrist who had discovered and exposed the fraud and abuse, but was then fired from his position as a medical consultant for the Bureau of Program Integrity in Pennsylvania's Department of Public Welfare. Because the Medicaid payments were administered through a joint federal/state Medicaid program, the U.S. government intervened in the case and became a party to the lawsuit and settlement agreement. The federal government has reserved the right to bring criminal charges and to exclude YFCS from Medicaid reimbursement programs in the future.

"This was a case of the exploitation of children for profit," said Thomas Melsheimer, a principal of Fish & Richardson in the firm's Dallas office, who, along with Thomas Halkowski, a principal in Fish's Wilmington, Del. office, represented Dr. Kruszewski in the case. "Dr. Kruszewski should be commended for having the courage to come forward to protect this vulnerable group from further mistreatment. Because of his actions, we now have an agreement that provides a new standard of care to help safeguard the well-being of the thousands of children who are housed in YFCS's facilities."

by Robert Tharp at 4:23:17 pm

There's a particular double whammy occurring in commercial real estate circles these days: the so-called credit crunch is making it more difficult for those with debt to
refinance while lenders are under pressure to reduce debt exposure. The result is that debtors are starting to really feel the squeeze. That phenomenon is unfolding across the country, but the impact in Texas could be particularly acute because of the way the state's foreclosure laws provide lenders with "a big stick," says real estate attorney Andrew Ingrum of Dallas' Thompson & Knight 

"Texas has among the nation's most streamlined foreclosure statutes, which allows lenders to wield a very big stick," says Ingram, who adds that calls from out-of-state lenders seeking guidance on potentially large-scale foreclosures and workouts have increased dramatically. "The risk and shortcomings of some developments that were overlooked in the good times are now magnified in the bad times. A large percentage of the commercial real estate loans made just three or four years ago can't happen today without significant equity support." To interview Mr. Ingrum about commercial real estate issues, contact Barry Pound at 800-559-4534 or barry@androvett.com.

by Robert Tharp at 4:09:36 pm

Employment attorney Mark Shank: economic crisis is fueling increase in complaints
Age discrimination complaints are skyrocketing, up nearly 30 percent in 2008, according to the EEOC and an interesting story in today's NY Times. While the workforce over age 45 enjoys a better rate of employment than the population as a whole, the wave of layoffs means more older workers are receiving pink slips and entering a dismal job market. Once unemployed, workers over age 45 face a longer job search and steeper drops in earnings.

"Considering the down economy and rise in layoffs, it's perhaps not surprising that discrimination claims are on the rise," says Mark Shank, a labor and employment attorney with Dallas' Gruber Hurst Johansen & Hail.. "We may see an even greater number of these cases filed in 2009." Shank says more senior workers may take legal action to recover lost jobs or wages because it's often difficult for them to find new employment. "Recent judicial rulings have also made it easier for employees to allege age bias, so companies should be very mindful of their exposure when considering workforce reductions." To interview Mr. Shank about employment matters, contact Barry Pound at 800-559-4534 or barry@androvett.com.

by Robert Tharp at 3:29:18 pm

The IRS is trying to show its softer side when it comes to all the U.S. taxpayers out there who were swindled in investment schemes in 2008. The government is making it
easier for victims of shady financial advisors to get some tax relief from their losses, says John Eliason, a member of the Financial Crisis Recovery Team at Gardere Wynne Sewell. Under the IRS's safe harbor, losses from Ponzi schemes are considered theft losses, even if the culprit has not been convicted. Provided certain requirements are met, the IRS allows defrauded investors to deduct up to 95 percent of a loss, minus any recovered funds. "The IRS has always made it clear that these are considered ‘theft' losses," Eliason says.
"However, the new guidance provides an optional safe harbor allowing certain investors to report the loss without having to determine the full amount or the prospects of recovering these losses." To interview Mr. Eliason, contact Rhonda Reddick at 800-559-4534 or rhonda@androvett.com.  

by Robert Tharp at 11:52:44 am

This just in: a dynamic, high quality Web site has a direct impact on your business success.

Most people intuitively understand by now the importance of any business having a competent and high-quality Internet presence.  But, wow, look at the results of

this recent survey describing how general counsels make decisions to hire outside law firms. To sum the findings of the Wicker Park Group/Hubbard One survey:

1) 100 percent of GCs in the survey indicated that they always look at a firm's Web site before deciding to purchase legal services. That's 100 percent, as in every single one of them look at a law firm's Web presence before they hire.
2) Nine out of 10 GCs say that professional bios are the most important section of a Web page.
3) Nine out of 10 GCs say the quality of a Web site makes a lasting impression.

Consider these assorted comments from GCs:

"I look at every firm's site we consider. The smart firms push a lot of content through their site. It helps in the search results. If a firm has a bad Web site, it makes a bad impression without even meeting the firm's attorneys."

"If a firm has not spent time and effort representing itself, what can I expect in terms of attention to detail and quality? Some Web sites are hard to navigate; others are simply very light on content."

by Robert Tharp at 11:08:07 am

Reports of the demise of asbestos litigation have apparently been greatly exaggerated. At The Lanier Law Firm, at least, asbestos, mesothelioma and mass toxic torts are a growing practice area. The Houston-based firm is dramatically expanding its Asbestos Litigation Group, hiring six attorneys and adding 14,000 square feet of office space.

Firm founder  Mark Lanier says the decision to expand the asbestos practice is based on a practical examination of market conditions and the current legal climate. "The terrible legacy of asbestos exposure continues to impact thousands of families every year, and we want people to know that they have a strong advocate at The Lanier Law Firm in every type of asbestos claim."

The firm has hired asbestos litigators M. Clay Fostel, formerly of Houston's Heard Robins Cloud Black & Lubel, and William H. Barfield, previously with Houston's Smith & Hassler, are joining the firm along with C. Jason Lindamood, formerly an assistant district attorney for Wharton County; Benjamin Pyle, formerly with Houston's RAS Inc.; and recent South Texas College of Law graduates Matthew McFarlane and Lauren Ware. With these new additions, the firm now has 20 lawyers working in its Asbestos Litigation Group.

With offices in Los Angeles, Palo Alto, Houston and New York, The Lanier Law Firm is committed to addressing client concerns with effective and innovative solutions in courtrooms across the country. The firm is composed of outstanding trial attorneys with decades of experience handling cases involving pharmaceutical liability, asbestos exposure, intellectual property, business litigation, product liability, toxic exposure and maritime law. For more information, please contact Bruce Vincent at 214-559-4630 or bruce@androvett.com.

 

by Robert Tharp at 2:17:13 pm

Digital forensics expert Erin Nealy Cox of Stroz Friedberg LLC says proposed legislation reflects policy makers' growing data-security concerns.
Whether it's computer viruses like the conficker worm threatening to turn your PC into a foot soldier in a vast drone computer army or the skyrocketing number of data breaches, the electronic age is constantly presenting new perils, and businesses, consumers and policy makers are still struggling to respond. Three separate bills under consideration by Texas lawmakers could strengthen statutes aimed at growing data security threats to businesses and individuals.

Senate Bill 28 would outlaw the creation and use of botnets in Texas. Under the proposal, those victimized by botnets, such as ISPs and businesses, or the Texas Attorney General could bring a cause of action and potentially recover up to $100,000 per violation, legal costs and treble damages. Senate Bill 327/House Bill 345 would require businesses to adopt e-commerce security standards already in use by the payment card industry. Senate Bill 962 would require businesses to use encryption software when dealing with sensitive personal information.

Erin Nealy Cox, a deputy general counsel at Stroz Friedberg LLC, an international digital forensics, cybercrime response and electronic discovery firm, says the legislation reflects the growing number of data security risks. "Lawmakers across the country are feeling pressure to respond to these dangers," she says. "For businesses operating in multiple states, the result can be a confusing patchwork of statutes from one state to another." To interview Ms. Nealy Cox, contact Robert Tharp at 800-559-4534 or robert@androvett.com.  

by Robert Tharp at 11:30:41 am

Revelations of the f'ight club' atmosphere within the Corpus Christi State School have certainly been one of the most disturbing letdowns of public trust in some time. According to police reports and news accounts, supervisors at the school for the mentally disabled routinely organized fights among disabled residents and filmed the violence for their own entertainment.

The mother of one of the victims, Inez Hernandez, has filed a negligence claim on behalf of her 21-year-old mentally disabled son, Armando Hernandez Jr., who was among those forced to battle. The lawsuit filed by Corpus Christi-based Hilliard Muńoz Guerra against the Texas Department of Aging and Disability Services charges that Mr. Hernandez suffered physical injuries and continues to suffer emotional trauma including severe humiliation, degradation and mental anguish as a result of the experience.

"These special-needs residents are some of the most vulnerable and fragile members of our community," says attorney Robert Hilliard. "To think that the protectors of their welfare were turning them into tools for their own sick entertainment makes my blood boil. I put this at the feet of the agency itself, an agency that, time and time again, throughout this state has allowed systematic abuse of every kind to go mostly unchecked."

For more information, contact Barry Pound at 800-559-4534 (office), 214-293-0860 (mobile) or barry@androvett.com.

 

by Robert Tharp at 11:49:09 am

With $80 billion in incentives in the stimulus package reserved for promoting energy efficiency and investment in alternative sources like solar, wind, geothermal and
biofuels, "green collar" entrepreneurs are poised for growth, says environmental attorney Scott Deatherage, who leads climate change and renewable energy projects at Dallas' Thompson & Knight. Emerging companies providing services in renewable energy like wind and solar power projects, greenhouse gas reductions and energy efficiency are becoming better positioned with lenders, who until recently have been holding onto funds as a result of the credit squeeze. "We're working with a number of companies that are now better positioned with lenders, investors and purchasers," Deatherage says. "These ‘green collar' entrepreneurs are gaining funding and looking at the best means to market the stimulus plan's incentives, just as their potential customers are looking at the tax credits and loan guarantees available to them." The stimulus package includes $80 billion in incentives that promote improvements in energy efficiency and investment in alternative sources such as solar, wind, geothermal and biofuels. To interview Mr. Deatherage, contact Barry Pound at 800-559-4534 or barry@androvett.com.

by Robert Tharp at 10:55:57 am

The approaching April 3 anniversary of the raid on the Yearning for Zion Ranch provides a convenient opportunity to step back and assess what, if anything, was learned
from the sweeping law enforcement action on the polygamist sect in a West Texas commune. Based on an anonymous outcry and opinions about the sect's belief system, authorities seized hundreds of children and placed them in the state foster care system. The unprecidented action overloaded the state's child welfare system and cost an estimated $14 million. The Texas Supreme Court later reversed after action, and accusations that the bulk of the children were in danger were never substantiated. Family attorney Betsy Branch of McCurley Orsinger McCurley Nelson & Downing says that while some of the teenage girls were abused and have been rightly removed from the environment, the rush to seize all of the children was premature. "The State had maintained that the ‘pervasive belief system' at the Ranch presented a danger to the children," says Branch, who represented several of the children on a pro bono basis. "The Supreme Court, however, concluded that the rush to remove all of the children was unwarranted based upon the evidence presented at the emergency hearing. In order to ensure the welfare of the children during the investigation, the Court instead directed the trial court to available statutory protections in lieu of placing them in foster care." To interview Ms. Branch, contact Scott Holcomb at 800-559-4534 or scott@androvett.com.  

by Robert Tharp at 4:40:46 pm

Pity all the bosses out there trying to clamp down on employees surreptitiously watching the March Madness NCAA basketball tournament. No longer a cable TV phenomenon, March Madness tournament coverage is now just a mouse click away on computer screens or streaming from any smart phone. Audrey Mross, who
heads the Labor & Employment section at Dallas' Munck Carter, reports that companies taking a hard line on employees tuning into the coverage should consider they may be fighting a losing battle. "Some employers have tried to ban web-watching, labeling it as a nonproductive activity," she says. "Increasingly, however, many employers are subscribing to the ‘If you can't beat ‘em, join ‘em,' theory, and are using the tournament to promote team spirit and to have some fun at work." To interview Ms. Mross about March Madness in the workplace, contact Mark Annick at 800-559-4534 or mark@androvett.com.

by Robert Tharp at 4:31:13 pm

Immigration attorney Irina Plumlee of Dallas' Gardere Wynne Sewell reports an interesting byproduct of the economic crisis related to educated immigrants with college-level or higher degrees. Immigration authorities are reporting that a growing number of these highly skilled workers are choosing to leave the country during this
downturn. Plumlee says the exodus is indeed troubling. "Many of those who are leaving are U.S.-educated professionals with college-level, or higher, degrees, often in the fields that we are most likely going to have to rely upon to get over the current economic hump," she says. "Add to this the fact that every immigrant contributes significantly to the tax pool and the line at the departure gate is suddenly a cause for serious concern." To interview Ms. Plumlee about immigration issues, contact Rhonda Reddick at 800-559-4534 or rhonda@androvett.com.   

by Robert Tharp at 4:17:09 pm

It's no small accomplishment to be listed in The National Law Journal's annual roundup of top 100 trial verdicts. There's not much gray area involved in these rankings; researchers simply scour the previous year's top verdicts and list the 100 largest.

One firm really stands out on this year's list. With four cases making the 2008 list, Dallas-based McKool Smith claims more Top 100 verdicts than any other firm of any size anywhere. This is just the latest indication that something's really going on at this lawfirm, which only recently expanded Washington, D.C., and New York. The four verdicts highlighted on the Top 100 list include:

At No. 12: Medtronic Vascular Inc. v. Boston Scientific Scimed Inc. In this May 2008 verdict, McKool Smith won a $250 million award for Medtronic, successfully arguing that Boston Scientific infringed on a patent for a series of Medtronic catheters used in surgical procedures to treat heart disease.

At No.36: Pioneer Corp. v. Samsung SDI Co. Ltd. McKool Smith and co-counsel from Morrison & Foerster secured a $59 million verdict in October 2008 in a patent infringement trial against Samsung. The case centered around technology used in plasma televisions.

At No. 74: Adderley v. National Football League Players Association. Back in November 2008, the firm and co-counsel from Manatt, Phelps & Phillips obtained a $28 million jury award for more than 2,000 former NFL players alleging breach of contract and breach of fiduciary responsibility. The retired players argued that they were not adequately compensated for licensing and marketing proceeds from NFL-themed video games, jerseys and other merchandise.

At No. 100:  Anascape Ltd. v. Microsoft Corp. Representing Anascape Ltd. against Nintendo of America Inc., McKool Smith attorney successfully argued that Nintendo had infringed on Anascape's patents for various video game controllers sold by Nintendo. The jury awarded Anascape $21 million.

Additionally, McKool Smith is featured in a companion article in The National Law Journal, "Minding their manners; McKool Smith finds that politeness is the way to a jury's heart," which highlighted each of the firm's four major victories. For more information, please visit www.mckoolsmith.com or contact Bruce Vincent at 800-559-4534 or bruce@androvett.com.

by Robert Tharp at 4:28:16 pm

There's still lots to glean from the Obama stimulus package, but one potentially important tax break for business centers around the onerous tax implications when
lenders cancel a borrower's bad debt, says David Wheat, a tax attorney with Dallas' Thompson & Knight. Previously, the borrowers still faced significant tax hickies based on the outstanding amount owed on the loan. Under the stimulus package, the tax liability of having debt cancelled could be deferred. "Because of this, many struggling companies that have not yet reached insolvency or bankruptcy faced hefty tax consequences when they could least afford it," Wheat says. "Now businesses can elect to push back taxation of that income to a five-year period between 2014 and 2018. If eligible, this can help a company work out loans and negotiate discounted payoffs without facing short-term tax obligations." To interview Mr. Wheat about Cancellation of Debt issues, contact Barry Pound at 800-559-4534 or barry@androvett.com.

by Robert Tharp at 4:13:43 pm

Foreclosure is more complicated than it sounds. Before a lender can foreclose and evict a mortgage holder in arrears, some very specific steps have to be taken.
Property owners seeking to avoid home foreclosure also have a protocol that must be followed. Too clarify the process, real estate attorney Robert Miller of Dallas' Prager & Miller has created a foreclosure checklist that outlines the do's and don't's for lenders and homeowners in Texas. For example, lenders must state in their foreclose notices a specific reason for foreclosure - such as failure to pay mortgage, taxes etc. They also must outline steps that the property owner can take during a 20-day period to avoid being put out. Homeowners can stop a foreclosure by paying the amount owed, filing for bankruptcy or going to state court. "Foreclosures don't just happen," Miller says. "The banks have to follow the law, and if you want to stop one, so do you." For a copy of Mr. Miller's foreclosure checklist, contact Mark Annick at 800-559-4534 or mark@androvett.com.

by Robert Tharp at 11:44:25 am

Who knew retractable dog leashes were so controversial? Dog training purists despise them. Entire countries have banned them, and Worldise Inc.'s SlyDog leash is
the subject of a nationwide recall by the Consumer Product Safety Commission because of injuries caused by the defective device.

A 12-year-old Arlington girl suffered serious eye damage when the clasp on her SlyDog leash broke while she was walking her puppy in April 2008, causing the line to recoil rapidly and strike her in the eye. The CPSC recall notes that the defective leash is responsible for broken teeth, facial lacerations, eye damage and other injuries. Stephen Drinnon from Dallas' The Drinnon Law Firm represents the girl and her family and has filed the first known federal lawsuit against Worldwise Inc., as well as Dollar General stores which sold more than 200,000 of the leashes across the country. Read more here

by Robert Tharp at 4:32:48 pm

McKool Smith expanding white-collar practice in growing New York office.
While law firms everywhere are contracting, some are finding opportunity in the downturn. Look at  McKool Smith, which is already adding to its New York offices that

opened just a year ago in a bold move to stake out its IP practice area claim. Responding to the white collar and financial fraud cases and corresponding government regulatory and enforcement actions, the firm has added veteran white-collar litigation attorneys Jack Cooney and Thomas E. Engel.

Both attorneys are former standout federal prosecutors who served together in the US Attorney's Office for the Southern District of New York, and each has gone on to successful careers in private practice representing corporate, multinational and individual clients. The two are close friends who each serve as godfathers to the daughter of the other. Additionally, each was in direct talks with McKool Smith when they realized that the other was also in talks about beefing up the firm's white-collar practice.

"Jack Cooney and Tom Engel give our clients access to the very top tier of white-collar and commercial representation at a time when these matters are not merely proliferating, but growing more complex and absolutely crucial to our clients' future," said Mike McKool, the firm's co-founder. He added that a special benefit to the new partners is the relative absence of client conflicts which often inhibit flexibility in representing important clients at larger traditional firms.

Said New York office head Robert A. Cote, "We're growing fast in IP and commercial litigation, as are all our offices, but we expect robust growth in our business and our roster of attorneys over the next year, and the white collar practice is part of the bedrock of our expansion strategy here."

by Robert Tharp at 4:35:00 pm

The music industry had poor results going after illegal file sharers with a big stick, threatening big civil penalties for those downloading music without paying royalties. As
Apple wrestles with the growing popularity of unauthorized iPhone applications, the company has fewer options for going after scofflaws since the civil penalty for the process known as "jailbreaking" may only be $2,500. But John Mockler, an intellectual property attorney at Munck Carter, says iPhone owners may be less likely to risk downloading unauthorized software of dubious origin that could damage their phones. "People may be less willing to take a chance with their iPhones, especially if downloading software someone literally made in their garage." To interview Mr. Mockler about iPhone jailbreaking, contact Mark Annick at 800-559-4534 or mark@androvett.com.

by Robert Tharp at 4:21:54 pm

The Obama stimulus package stands to have a dramatic impact on health care in the U.S., from health care subsidies for unemployed workers to incentives to promote

the use of health information technology and encourage the use of the most-effective medical treatments. Kathy Poppitt, a healthcare attorney with Thompson & Knight in Austin, says security and privacy rules known as HIPAA also get a shot in the arm from the stimulus package. Language in the stimulus broadens the reach of criminal penalties while establishing a tiered system of civil money penalties, she says. "State attorneys general now will have the authority to bring suit in federal district court against providers and business associates who violate the regulations. To date, there has not been a cause of action allowing an individual to receive damages for a HIPAA violation." To interview Ms. Poppitt about the plan's provisions or HIPAA, contact Barry Pound at 800-559-4534 or barry@androvett.com.

by Robert Tharp at 1:56:29 pm

As if mortgage problems couldn't get any more complicated, consider for a moment something called "Option ARMs." These adjustable-rate lending vehicles are often
sought by savvy borrowers with higher credit scores for a variety of specific purposes. Now there are real concerns that even these borrowers are at risk of defaulting. At stake is nearly $750 billion in such Option ARM mortgages, says  attorney Kenneth Johnston of Dallas' Kane Russell Coleman & Logan. "As this economy stalls further, and more adjustable rate loans recast during 2009 and 2010, we could see a re-do of the subprime problem," Johnston says. "The shock factor for most lenders and consumers may be gone as reality sets in. We'll have to see how the new foreclosure prevention plan will work as banks attempt to shore-up their balance sheets," he says. To interview Mr. Johnston, contact Barry Pound at 800-559-4534 or barry@androvett.com.

by Robert Tharp at 1:41:07 pm

White-collar defense lawyer Dan Cogdell says get ready for string of half-cocked probes
Stung by well-deserved criticism that the Securities and Exchange Commission was far too slow to act on the $50 billion collapse of Bernard Madoff's investment funds,
Houston white-collar defense attorney Dan Cogdell says get ready for the pendulum to swing the other way in terms of SEC probes. Cogdell expects overreactions and half-cocked investigations from the SEC as the agency tries to repair its reputation. The civil charges against Houston-based Stanford Financial Group show such signs, he says. "Like any bureaucracy that has been criticized for inaction, it is now far more likely that the SEC will overreact and be quick to presume misconduct," he says. Like Madoff but on a smaller scale, federal investigators say that Stanford misled investors with fabricated historical investment data and false promises. "Whether its actions were truly malignant or in fact benign, Stanford almost certainly will receive an initial diagnosis of cancer. Anyone who expects objectivity on the part of an investigating agency will be sorely disappointed." To interview Mr. Cogdell about the defense of financial fraud claims, contact Alan Bentrup at 800-559-4534 or alan@androvett.com.

 

by Robert Tharp at 3:46:14 pm

Over at Lynn Tillotson Pinker & Cox, Trey Cox has penned an interesting piece for the National Law Journal that focuses on the increasing challenge that trial lawyers
face communicating with distracted and zoned-out jurors. While Trey's article focuses on the attention economy in the courtroom setting, the analysis offers something for everyone. Let's face it as wireless bandwidth has increased, human bandwidth has narrowed dramatically. Trey borrows from leading business-world thinkers like Made to Stick authors Chip and Dan Heath and Thomas Davenport and John Beck's influential book, The Attention Economy to offer some great takeaways for communicating to distracted jurors.

Juror 12 is adrift. It's not that he doesn't care about the contract dispute tediously unfolding in the courtroom. Who knows -- he might be the kind of natural leader who can rally 11 wafflers behind closed doors during deliberations. The real problem with this hopelessly distracted juror is his irrepressible urge to grab his BlackBerry, manage his bloated e-mail folder and cram as much business as possible into each recess.

Meet today's juror, so overloaded with information that he can barely focus on the important things in his own life. Chances are, more than half the jurors on any given panel belong to Generation X or, even worse, Generation Y -- raised with a television in every room, surfing the Internet, cell phones in their pockets and iPods in their ears. MORE

The piece has already gotten picked up on Twitter and the Interwebs.

by Robert Tharp at 1:33:39 pm

Family law attorney Mary Jo McCurley says key is to neither overblow nor ignore special day
The expectations of Valentine's Day can be a minefield for struggling couples who may be heading for divorce. Ignoring the special day can make a bad situation

unbearable. But going to the opposite extreme be an even bigger mistake, says family law attorney Mary Jo McCurley of McCurley Orsinger McCurley Nelson & Downing. "If you receive roses with a sentimental card filled with commitment, then three weeks later receive divorce papers, the entire process is going to start on a heightened emotional level that might be hard to temper," she says. "Not only might the divorce itself be more contentious, but it could play a role in the proceedings as the court will hear about it and draw its own conclusions as well." To interview Ms. McCurley regarding family law issues, contact Rhonda Reddick at 800-559-4534 or rhonda@androvett.com .

by Robert Tharp at 2:40:59 pm

Thompson & Knight attorneys orchestrate one of the biggest oil-and-gas deals in Peruvian history
So investors in Korea and Columbia put together a mammoth $900 million deal to purchase a Peruvian energy company. What's that got to do with Texas, you ask?

Well, Attorneys in Thompson & Knight's Houston office helped orchestrate the deal as outside counsel for the two buyers, Korea National Oil Corporation and Ecopetrol SA of Columbia. The two firms now each have 50 percent interest in Offshore International Group Inc and its subsidiary, Petro-Tech. Petro-Tech is engaged in the exploration, development, production, and processing of hydrocarbons and is Peru's third-largest crude-oil producer at 12,000 barrels per day.

This acquisition represents one of the largest Peruvian oil and gas deals in recent history and allows KNOC and Ecopetrol to greatly increase their production capabilities. The Thompson & Knight team advising on this project was led by Partner Jerry L. Metcalf and Associate Todd Chen, both from the Firm's Houston office. The team which assisted on this transaction included Sarah E. McLean, Louis J. Davis, Ben H. Welmaker Jr., Pablo C. Ferrante, John R. Cohn, Janet P. Jardin, C. Stoddard (Todd) Lowther II, Nicholas F. Tsai, Mayuca V. Salazar, and Iván Pérez-Arteche. The agreement between the companies was finalized on February 5, 2009.
KNOC is the national oil and gas company of South Korea and one of the most important industrial companies in the country. The company operates oil and gas fields around the globe and had a reported oil production of more than 860.2 million barrels in 2008.
Ecopetrol, the Colombian national oil company, is an integrated oil and gas company ranked among the world's 40 largest energy companies. It is also the largest corporation in Colombia as well as the principal oil and gas company in that country.

by Robert Tharp at 1:54:03 pm

Computer forensics expert Erin Nealy Cox of Stroz Friedberg says companies should have a plan, use common sense when dealing with spam e-mail and electronic threats
Those spam e-mails that bloat your Outlook inboxes aren't just annoying, they also threaten to propagate dangerous computer viruses. Even spammers know that love
can make people do crazy things, so it's not surprising that they've latched onto Valentine's Day to spread e-mail viruses. As snopes.com confirms, spammers are using e-mails with syrupy Valentine's messages in the subject heading to spread the "storm worm," just like they did in 2007. The same virus has been adapted for e-mail messages about the Obama inauguration and a range of other current events. It's not an elaborate ruse, but it's effective.

Erin Nealy Cox, a deputy general counsel and managing director at computer forensic firm Stroz Friedberg's Dallas office, says the potential for such e-mail viruses should serve as a reminder for businesses and individuals to bone up on computer security practices and review e-mail habits. "Computer viruses and electronic security pose enormous financial risks," she says. "Every company should have an information security plan, from defending against viruses to preventing data breaches and responding to litigation." The virus behind the Valentine's Day e-mails has subject lines including "With all my love" and "Me and you." To speak with Ms. Cox about computer forensics, contact Robert Tharp at 800-559-4534 or robert@androvett.com.

by Robert Tharp at 4:40:02 pm

As if we needed proof that worldwide financial markets are inexorably entangled, consider the collapse of the Madoff Ponzi scheme. The vaporization of as much as $50
billion invested in Madoff funds extends around the globe with concentrations of victims in unexpected places including Austria and South America. An international probe by New York-based Zwerling, Schachter & Zwerling, LLP, is focusing on whether major Austrian banks used financial funds to fraudulently funnel billions into Bernard L. Madoff's bogus investment enterprises. The New York-based law firm already is working with nearly a dozen individuals, partnerships and companies whose funds with Bank Austria and Bank Medici may have been improperly channeled to Madoff's firm. The firm also has been contacted by potential victims in Mexico, Argentina, Austria, Spain, Switzerland and Ireland.

"The auditors of these funds allowed this financial disaster to occur, and we think they have responsibility along with the banks and the feeder funds through which the banks invested in Madoff's firm," says attorney  Robert S. Schachter. "Our investigation has revealed that if financial advisors had performed basic due diligence, they could have spotted the ruse that Madoff was perpetuating with his scheme." To speak with Mr. Schachter about the Madoff investigation, contact Mark Annick at 800-559-4534 or mark@androvett.com.

by Robert Tharp at 11:42:32 am

Pity the junior attorney. Before the economic crash, recent grads with the right pedigree were woo'd by major law firms offering increasingly escalating salaries.
Associate compensation became a benchmark of success that big firms fought to keep up with. No more, says Stacy Humphries of Houston's MS Legal Search. Instead, salaries are mostly flat while associates are hunkering down, focusing on keeping their jobs rather than looking for greener pastures. Meanwhile, it's the experienced attorneys with loyal clients that are doing the job-hopping in this climate, Humprhies says. "Junior attorneys are keeping their heads down and hoping to ride out the economic downturn while more senior attorneys, particularly those with portable business, are more proactive about trying to improve their situations." To interview Ms. Humphries about law firm compensation issues, contact Barry Pound at 800-559-4534 or barry@androvett.com. .

by Robert Tharp at 10:45:25 am

Texas Attorney General Greg Abbott has filed suit against Houston's Memorial Hermann Healthcare System, charging that the hospital has violated state antitrust laws

by conspiring to restrain competition from a competing hospital. Attorneys Rusty Hardin of Houston's Rusty Hardin & Associates and Richard Zook of Houston's Thompson & Knight are representing  representing the doctors and physician partnership that started Houston Town & Country Hospital. The litigation contends that Memorial Hermann engaged in improper acts against the doctors and the hospital by coercing insurance companies to boycott the smaller, start-up hospital and, as a result, depriving many patients and their doctors from using the hospital.

The two attorney's praised the AG's action. "This is a huge victory for the doctors who built Town & Country Hospital, and for the general public seeking quality health care at competitive prices. The AG's office should be congratulated for taking such a bold, non-political action on behalf of consumers," says Hardin. 

Mr. Zook agrees, "Although the AG's findings validate our claims of unlawful conduct by Memorial Hermann, the doctors' civil case against Memorial Hermann is set for a jury trial in late March 2009," says Zook. "We look forward to showing the jury the entire story of Memorial Hermann's improper actions that damaged these doctors, their patients and the public at large." 

A copy of the final judgment and news release from the Attorney General's Office can be found at http://www.oag.state.tx.us/oagNews/release.php?print=1&id=2812. For more information, contact Barry Pound 800-559-4534 at barry@androvett.com.

by Robert Tharp at 10:01:24 am

There's a plot for a crime-thriller in here somewhere...Behemoth banks secretly taking out life insurance policies on their employees and collecting benefits upon their deaths. The practice is so common in the international high-finance world that there's even an acronym to describe it: BOLI, for "bank-owned life insurance."
The way banks are falling like dominoes lately, the conspiracy theorist in me wonders if current and former bank employees who have BOLIs are looking twice when they cross the street these days.

Attorneys from Houston's The Clearman Law Firm have begun a nationwide investigation into the practice. "It is ironic that thousands of bank employees have been laid off, yet banks still stand to benefit financially when those employees die," says class-action attorney Scott Clearman.  "These types of policies benefit only the banks, not their employees."

Many of the world's largest banks have taken out life insurance policies on their workers, including Bank of America, JP Morgan Chase, Bear Stearns, Citigroup, Wachovia, Washington Mutual, Wells Fargo and many others. Nearly half of all U.S. banks have reported owning BOLI policies at an estimated value of $120 billion. Ethics aside, the practice raises serious questions about unauthorized use of personal information. A bank purchasing a BOLI policy must provide the insurer with personal information belonging to each covered employee, including his or her name, sex, age and Social Security number. Employees' Social Security numbers are then used to conduct "death sweeps" where banks typically hire outside brokers to sweep public records in order to learn if an employee or former employee has died. A person whose life a bank insured without consent may have a right to sue for the bank's misappropriation of their identity, and may be able to recover profits made by the bank, broker and insurer. To interview Mr. Clearman about the BOLI investigation, contact Bruce Vincent at 800-559-4534 or bruce@androvett.com.

by Robert Tharp at 1:51:56 pm

Weeks after stepping down as United States Attorney for the Northern District of Texas, attorney Richard B. Roper, III, says he expects 2009 to bring a renewed emphasis on white-collar prosecutions and securities law violations. "To the extent that our current financial crisis can be tied to these types of crimes, the Justice
Department will likely have more resources and a broader mandate to pursue them," he says. "As a result, investigators and prosecutors will be able to move more quickly in detailing evidence of corporate fraud and seeking criminal penalties."  Roper previously served as United States Attorney for the Northern District of Texas from 2004-2008, and directed some of the most high-profile prosecutions in the country, including cases targeting international terrorism financing and exportation of sensitive technologies, public corruption, insider trading, tax, securities, mortgage, corporate and health care fraud, human trafficking, and international drug trafficking. He served on six Attorney General Advisory Committees, including White Collar Fraud, Cyber/Intellectual Property, Controlled Substances, Office of Management and Budget, Violent and Organized Crime, and Child Exploitation and Obscenity. In addition, he served as Co-Chair of the Department of Justice's Internet Pharmacy Working Group. As a Trial Partner in the Dallas office of Thompson & Knight, Mr. Roper will focus his practice on white collar criminal litigation. To interview Mr. Roper about the DOJ's focus on white-collar crime, contact Barry Pound at 800-559-4534 or barry@androvett.com.

by Robert Tharp at 4:19:08 pm

Economic bad news often feeds on itself, especially in the real estate world. Consider all those underwater homeowners out there(those who owe more on their house than its current market value). Beleagured homeowners may be motivated to sell for a variety of reasons, but they are often stonewalled from selling because mortgage
companies can't agree to sell a property at a loss. Even when mortgage lenders agree to such short sales, it's not an easy process, says real estate attorney, Jerome Prager of Dallas-based Prager & Miller. In the meantime, the market stagnates.

Enter the Texas Real Estate Commission, which is working to reduce the number of residential foreclosures by providing some much-needed uniformity for homeowners and mortgage lenders in these situations. Until now, mortgage agents often altered sales contracts to address the need to sell a home at a loss, but this created a new set of problems because the contract language was often inaccurate or exposed agents to allegations of practicing law without a license. Newly adopted contract language simplifies the process and could lead to more such short sales and fewer foreclosures.

"Essentially there have been situations in which these edits and insertions by a real estate agent in contracts may lead to disputes and could be deemed to be the unauthorized practice of the law" says real estate attorney Jerome Prager, of Dallas' Prager & Miller

"These are obviously difficult times for the real estate industry, as well as for homeowners and prospective buyers," says Mr. Prager, who as co-chair of the Commission's Broker-Lawyer Committee helped draft the language. "It's more important than ever that unambiguous closing documents are legally binding, enforceable and drafted to cover virtually any contingency."

To speak with Jerome Prager about the contract addendum concerning short sales of homes, please contact Mark Annick at 214-559-4630 or mark@androvett.com.

by Robert Tharp at 4:45:21 pm

Interesting perspective on the state of the legal industry from the Law360 Litigation Almanac: shrinking legal budgets have so far had no impact on case volume. In fact, litigation rose 9 percent last year. According to a news release on the findings:

Class actions hit a new peak in 2008, rising 8% from the previous year on the back of an increase in antitrust - and employment - related filings. -- The economic crisis sparked a surge in corporate bankruptcy filings in 2008, while credit conditions also forced more companies to resort to quick, nontraditional bankruptcies -- trends that attorneys predict will continue until at least 2010.

Other highlights from Law360:

  • Antitrust filings grew at a rate of 27%, extending a multiyear trend of dramatic increases as private plaintiffs firms closely track government investigations and prosecutions. A look at the dockets just for 2008 shows a slew of cases against chocolate makers, egg product processors, packaged ice distributors and many others, all filed soon after a government investigation was disclosed.
  • The number of federal environmental lawsuits filed in 2008 rose for the first time since 2005, suggesting that the Bush administration's drop in enforcement actions, growing state activism and the U.S. Supreme Court's ruling on greenhouse gas regulation have worked to drive litigation upward.
  • Employment litigation rose 6% in 2008, marking a reversal in the gradual decline in employment litigation seen over the previous four years.
  • Meanwhile, the number of intellectual property lawsuits declined 11% in 2008, thanks largely to a dropoff in copyright litigation instigated by the recording industry. The trend reflects the success of the recording industry in protecting its copyrights, leading the industry to bring fewer lawsuits in the past few years.

by Robert Tharp at 4:20:20 pm

A gloves-off legal fight questioning legal fees charged by a Boston-based law firm is headed for a Collin County jury trial. In an opinion released
New Year's Day, a Texas appeals court refused to dismiss fraud allegations that attorneys for Wilmer Cutler Pickering Hale and Door LLP submitted millions in questionable legal fees and expenses for its defense of a former executive of software company. Attorneys for Dallas-based  Rose•Walker, L.L.P., filed the lawsuit on behalf of software maker McAfee Inc., charging that dozens of different WilmerHale attorneys submitted millions of dollars in unjustifiable fees, including luxury hotel rooms, lavish meals and bar tabs in their defense of former CFO Prabhat Goyal. "This ruling says that if you defraud someone in Texas, you're going to be brought before a Texas court and held accountable," says Rose•Walker co-founder Marty Rose. To speak with Mr. Rose about the WilmerHale litigation, contact Mark Annick at 800-559-4534 or mark@androvett.com.

by Robert Tharp at 4:34:14 pm

Residential mortgage industry was one of the first dominoes to fall in the economic downturn. Now many believe the commercial real estate market is teetering. With
more than 500,000 U.S. jobs lost in December, the steep job losses are causing office vacancy rates to spike in cities across the country. As businesses shed workers and office space, fears that a wave of commercial property foreclosures is about to occur.  Real estate attorney Kathleen Wu of Dallas-based Andrews Kurth LLP predicts an industry shakeup that will affect everyone from office tenants to far-flung investors of securitized commercial real estate mortgages. "We are in the midst of a significant market correction," Wu says. "If there is a silver lining to this trend it's that the industry will experience some rightsizing and a greater focus on corporate responsibility. During this cycle, there are buying opportunities for those waiting on the sidelines with access to capital or credit." To speak with Ms. Wu about commercial real estate trends, contact Robert Tharp at 800-559-4534 or robert@androvett.com.

by Robert Tharp at 4:03:40 pm

Deep down in last summer's housing rescue bill lies a provision that is already causing heartburn among credit card payment processors and individuals who do a lot of
selling on eBay. According to the legislation, beginning in 2011 payment card processors like PayPal must keep tabs on online transactions and notify the IRS when individuals earn more than $20,000. Sure, individuals who use eBay to clean out their garage have little to worry about, and you could argue that eBay Power Sellers should be paying taxes already, but the changes will have major privacy implications and cause regulatory headaches for card processors. "This won't affect people cleaning out their garage, but if you're an eBay Power Seller making more than $20,000 annually, the tax man will know about it," says attorney Zahara Alarakhia of Dallas' Munck Carter. According to the Wall Street Journal, it also applies to intermediary banks that process card payments for restaurants and brick-and-mortar retailers. Congressional tax estimators predict the reporting change will help the IRS collect an additional $9.5 billion in taxes owed by online and traditional businesses over the next 10 years. The payment processors will be required to file a 1099 form for each merchant to the IRS and to the merchant. To speak with Ms. Alarakhia about payment card processing issues, contact Alan Bentrup at 800-559-4534 or alan@androvett.com.  

 

by Robert Tharp at 5:07:05 pm

A company drying to dig out of Chapter 11 might not seem like a good bet for lenders, especially in this tight credit market. But as the number of companies in Chapter 11 bankruptcy spikes, their prospects for digging out often depend on having access to operating cash. That's where debtor-in-possession financing comes in. Such loans to struggling companies in Chapter 11 provide struggling businesses with a chance to get back in the black rather than liquidating. "Debtor-In-Possession' financing is fairly common, and a good number of Chapter 11 cases would probably be impossible without access to capital through this framework," says Robert Paddock of Houston's Thompson & Knight. "A debtor company may have cash flow, but that revenue stream may be pledged to other secured creditors. Structured correctly, DIP or post-petition financing can be an attractive means for both a debtor and lender to fund the business through the bankruptcy proceeding." Such financing is harder to find in the existing tight credit market but it is still available, particularly for large-scale debtors willing to pay premium interest rates. To speak with Mr. Paddock about DIP financing, contact Barry Pound at 800-559-4534 or barry@androvett.com.



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