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Androvett Blog

by Robert Tharp at 1:27:37 pm

In-house counsel at Fortune 500 companies have selected the national law firm of McKool Smith as a "Go-To Law Firm" for litigation involving business and intellectual property. The firm, which maintains offices in Texas, New York, and Washington, D.C., will be recognized in the upcoming legal guide, "In House Law Departments at the Top 500 Companies."

This marks only the latest in a long line of accolades and accomplishments earned by the attorneys at McKool Smith. In the last year alone, the firm has added new practice areas, opened an office in Houston and beefed up recently opened offices in D.C. and New York City. The firm was recognized in The National Law Journal as having won more of the nation's Top 100 verdicts in 2008 than any other U.S. law firm. The firm also was named as one of the country's most innovated law firms in The National Law Journal's "Midsize Hot List."

In 2009 litigation, the firm successfully took on some of the tech sector's biggest household names, including winning a $200 million patent-infringement verdict against Microsoft and a $139 million verdict against SAP AG. Meanwhile, McKool Smith attorneys turned heads in a closely watched class-action, winning a $20 million class-action jury verdict on behalf of more than 170 Texas cities.


by Robert Tharp at 1:30:16 pm

The clock is ticking for potential members of a $4.6 million class-action settlement related to former First City Bancorporation workers whose retirement plans were mishandled. Eligible former employees have until Friday, Dec. 18, 2009, to submit claims and join the class, says business attorney  David Furlow of Thompson & Knight LLP and counsel for the class.
A Houston judge has approved a settlement in the case that would distribute approximately $4.6 million to former First City workers. The case centers around a defined-benefit retirement plan established and funded solely by First City for employees in 1976. First City cancelled the plan for being overfunded 10 years later. The company then made lump-sum payments to some participants and purchased long-term annuities on behalf of other employees from the Prudential Insurance Company.  After First City was declared insolvent in 1992 and went through an involuntary bankruptcy, successor corporations took the position that the former First City employees should receive nothing from the annuity investments. Former First City employees who have questions about their eligibility should review the information on the Class Administrator's Web site at
Lead Class Counsel Robert S. MacIntyre, Jr. of Houston's MacIntyre & McCulloch, LLP, emphasizes that these payments will not affect anyone's right to receive pension benefits.
"These beneficiaries are likely to be retirees in their 70s and 80s for whom this financial settlement could be very welcome," Furlow says. "There remain several hundred former First City employees who have not responded to our efforts to contact them about their rights to receive a distribution from the settlement fund, and the deadline to do so is approaching."

by Robert Tharp at 4:16:16 pm

The folks over at the Legal Bytes blog have an interesting take on the recent settlement struck by NetMass regarding a cloud computing patent held by inventor Mitchell Prust. Says Legal Bytes: This may be just the beginning of a wave of intellectual property lawsuits as cloud computing begins to evolve and become part of a commercial operational toolkit around the globe - not much different from those surrounding ATMs, online banking, networking and other once-emergent technology platforms. Stay tuned. You will be hearing more from us about clouds in the year ahead.

According to the settlement signed off on by Judge T. John Ward of the U.S. District Court for the Eastern District, NetMass admitted to infringing three online storage and computing patents(specifically U.S. Patent Numbers 6,714,968; 6,735,623 and 6,952,724) held by Prust and permanently enjoining NetMass from infringing on those patents in the future.

"We are extremely pleased to have resolved this matter in favor of Mr. Prust," says Christopher D. Banys of The Lanier Law Firm , who represtented Mr. Prust. "The patents in this litigation represent the building blocks for some of today's most sophisticated online applications, and we will continue to help our client protect his interests in these valuable patents."

IP Law 360 weighed in on the case, writing: Cloud storage and cloud computing technology has to do with moving away from storing information in physical locations like hard drives and instead keeping that data "in the ether," Banys said. Prust has been working on cloud technology for some time, but the technology "is just now catching fire."
Prust also is asserting the three patents against Apple Inc. in a separate case pending in the U.S. District Court for the Northern District of California.
The stipulated judgment and request for permanent injunction filed on behalf of Prust and NetMass in the Texas court on Monday said NetMass admitted every allegation in the complaint, except to the extent that willful infringement is alleged or exceptional case status was sought.
The case is ongoing with respect to Softlayer Technologies Inc., which Prust also named as a defendant when he filed the suit Aug. 5, though the parties are in settlement talks.
Prust's case against Apple was filed in the Texas court in April, and Judge Ward granted a motion to transfer the case to California in October.

by Robert Tharp at 3:07:51 pm

Lots of jaws have been dropping over law professor Brent T. White's recent academic paper in which he advises beleaguered homeowners to stop feeling guilty about walking away from their underwater mortgages.

Writes the LA Times: Go ahead. Break the chains. Stop paying on your mortgage if you owe more than the house is owrth. And most important: Don't feel guilty about it. Don't think you're doing something morally wrong.

The main point is that too often people's emotions get in the way of clear financial thinking about mortgages, turning them into what he calls "woodheads" - "individuals who choose not to act in their own self-interest." Most owners are too worried about feeling so f shame and embarrassment after a foreclosure, and ignore the powerful financial reasons for doing so."

Real estate attorney  Robert Miller of Dallas-based Prager & Miller says Texas' situation is less dicey than that of areas that saw dramatic home value run-ups, but much hinges on the economy. "If people have jobs and can afford the payment, they won't walk away," Miller says. "But if you're in a house with no equity and it's overvalued by 50 percent, people are deciding that there's no reason to continue, unless it's cheaper than renting." Against that backdrop, more mortgage lenders are participating in so-called short sales, selling foreclosed properties for less than the value of the foreclosed mortgage. In fact, the Obama administration is trying to reduce what has been described as a contentious, time-consuming short-sale process by requiring lenders and others to use nationally uniform documents, timelines and financial incentives. 

by Robert Tharp at 2:36:54 pm

Holiday parties are more dangerous than ever, thanks to the always-connected social media world we not inhabit. No longer are our embarrassing excesses limited to whispered comments around the water cooler - your drunken holiday party gaffs could become the next viral Internet sensation.

With party season in full swing, revelers should remember that these functions are rife with peril. "A work party is just that, an extension of work, and one false step can jeopardize your job," says Austin employment litigator Geoff Weisbart. "As a practical matter, you should never say or do anything at an office party that would not be permitted at the office." Weisbart notes that technology makes it increasingly easy to document events in any setting, and executives may be particularly susceptible to everything from embarrassment to sexual harassment claims when their bad behavior is immortalized in a worldwide YouTube video. "There is obviously a little relaxing of the lines of authority at a work party, but remember that the lines are not extinguished."

by Robert Tharp at 3:05:57 pm

As if environmental attorney Richard O. Faulk's CV isn't long and distinguished enough, the well-known litigator will soon add "working journalist" to his work history. Faulk, chair of Gardere's Environmental Practice Group and Climate Change Task Force, is one of the few U.S. lawyers traveling to Copenhagen for the United Nations Climate Change Conference. His presence in Copenhagen provides a ringside seat as countries hammer out a new international climate change agreement that would take the place of the Kyoto Protocol set to expire in 2012. But he's not just a passive observer, Faulk has secured a press pass as a credentialed journalist and plans to supply coverage of the proceedings to business and legal publications.

President Barack Obama is among world leaders representing more than 75 nations scheduled to attend the two-week conference, which begins Dec. 7 in Copenhagen, Denmark. Many nations and delegates believe that a global climate change agreement is necessary to limit the negative man-made effects on the climate system for future generations. Faulk says U.S. business interests need an agreement that's fair and includes industrialized and emerging nations. "This conference must produce an equitable international agreement to avoid the destructive effects of unilateral climate change measures on the United States economy. Even massive reductions in American greenhouse gas emissions will not be sufficient to impact climate in the absence of a universal agreement that binds all nations, including developing nations like China and India," he says.

That concern will be front-and-center in the conference, reports the Washington Post.  

That critical question -- to what extent China and India, which are not bound by the same obligations as industrialized countries under the U.N. process, would cut their emissions as part of a global pact -- remains unanswered. The top leader of each nation, both of whom met with Obama over the past week and a half, are expected to announce their own climate plans within days. Ned Helme, president of the Center for Clean Air Policy, said Obama is "walking a knife's edge" to encourage China and India to act without alienating Congress."

Faulk says such a comprehensive approach to climate change is vital to its success. "In the absence of universal and verifiable international accords, American industry will suffer major competitive disadvantages - and, more importantly, climate changes will not be effectively redressed," he says. "However important climate issues may be, we must have comprehensive tools to solve the situation as opposed to unilateral platitudes." 

by Robert Tharp at 4:19:03 pm

Enormous off-shore oil discoveries are positioning Cuba as the oil industry's next big regional player. Indeed, a growing number of non-U.S. energy companies are making big investments in Cuba. The lure is the discovery of a vast oil filed off the Cuban coast, which the U.S. Geological Survey estimates at 4.6 billion barrels or more. "The Cuban government has already awarded production-sharing contracts with foreign corporations representing more than $3 billion in capital investments, and more deals are likely," says Scott Schwind of the Houston office of Thompson & Knight. "Some sources estimate that Cuban deep waters may hold as much as 20 billion barrels of recoverable, high-quality oil. Success in developing these resources will depend on Cuba's ability to manage a number of significant challenges, such as legal and economic restrictions, technological deficiencies, environmental concerns and, perhaps most of all, the current U.S. trade embargo."

As USA Today notes, Cuban drilling could be uncomfortably close to Florida beaches: One day soon an oil rig will maneuver into position in waters less than 100 miles from the coast of Florida. A drill will plunge into the inky sea and begin chewing its way into the ocean floor, hunting for oil.
But the drilling rig won't belong to an American company, and any petroleum it discovers won't do a thing to curb the USA's addiction to foreign oil. Instead, any new sub-sea gusher will belong to Cuba.
That's right: Cuba. The island nation long has been known for its aromatic cigars and sweet rums. But after years of limited oil production on lands around Havana and in neighboring Matanzas province, Cuba is poised for a significant expansion of its oil program into the waters that separate it from the United States. And thanks to U.S. law, Cuba's drilling partners will be working closer to Florida beaches than any American company ever could.

by Robert Tharp at 4:25:35 pm

Joe Jackson's attempt to have the administrators of his son's will removed due to conflicts of interest is just the latest twist to the tangled mess that has followed Michael Jackson's death. But Steve Spitzer, head of the Probate Litigation Section at Cowles & Thompson, says the time to challenge the selection of an administrator is before the court appointment. "Prior to the executor being appointed, the claim that they are ‘unsuitable' can be made successfully for any number of reasons, but afterwards, it is very difficult to remove the executor," he says. Under Texas probate code, for example, proof of gross misconduct is among the only reasons a change would be made. "It comes down to the wishes of the deceased. If they knew of the conflict, there are no grounds for removal."

by Robert Tharp at 3:57:25 pm


Cell phone companies have been scrambling to reduce the amount of dangerous radiation produced from phones and headsets, but a Texas-based company says many telecom companies left something out: credit for a ground-breaking patent now in wide use.

The Dallas litigation firm of Reyes Bartolomei Browne has filed patent-infringement litigation on behalf of Tyler, Texas-based DownUnder Wireless, LLC, against 21 companies. Defendants in the lawsuit including Samsung, as well as service providers including AT&T, Sprint Nextel, T-Mobile and Verizon. Retailers named in the litigation include, Best Buy, Target, Wal-Mart and others.

According to the lawsuits, DownUnder invented a design that calls for cell phone antennas to be placed in the base of the phone rather than the traditional placement in the earpiece near the user's head. DownUnder's design, which was awarded U.S. Patent No. 6,741,215, also angles the antenna away from the user. Both features work together to reduce the amount of potentially harmful radiation that could be transmitted into an individual's brain.

Researchers have already linked cell phones to a biological effect on the brain. Before the end of the year, the World Health Organization (WHO) is expected to publish the results of a decade-long investigation into links between cell phone radiation and brain cancer. Published reports say the WHO study will show a "significantly increased risk" of some brain tumors related to long-term usage of mobile phones.

Writes Wired magazine: The effect of cellphone radiation on users has become an important issue for scientists, environmental organizations and cellphone industry groups. In the United States, the Federal Communications Commission sets the acceptable radiation standards for cellphones. As part of the device certification process, all handset makers have to offer a certificate from an independent lab that show how the device rates.

Children have much thinner skull bones and their brains have a lot more fluid, so their brain tissues would likely absorb twice more radiation compared to an adult’s brain. But cellphone radiation standards set by the government remains the same for both groups.


by Robert Tharp at 4:56:37 pm

People love to bash the Eastern District's "Rocket Docket" as a plaintiff-friendly venue where defendants don't have a chance. The National Law Journal recently called it "ground zero" in the controversy over venue-shopping. Apparently someone forgot to tell the folks at Munck Carter, LLP.

The firm earned a hard-won defense factory late last week after jurors unanimously agreed that Plano, Texas, based Applied Optical Systems Inc. did not infringe on three patents owned by Amphenol Fiber Systems International. The verdict clears the way for AOS to continue manufacturing and distributing its copyrighted line of military specification complaint TFOCA-II style fiber optic connectors and trademarked EZ-MATE connector.

Amphenol, represented by Greenberg Traurig, first sued AOS in November 2006 over the ‘849 patent, seeking monetary and injunctive relief. As part of AOS' defense, Munck Carter sought reexamination of the ‘849 patent in the U.S. Patent and Trademark Office. During reexamination, Amphenol was forced to narrow its claims and pursue damages only for products sold after March 31, 2009, the day the USPTO issued its re-examination certificate.

"We always believed that this case was about an industry leader using its patent portfolio to restrain its competitors," says William Munck, managing partner of Munck Carter. "Our initial defense strategy was to narrow the patent's scope through the reexamination and then show how AOS' connectors did not infringe the narrower patent. The correct verdict was reached."


by Robert Tharp at 4:38:32 pm

In a tight economy, it may not be just retailers who view this Christmas as a make-or-break season. Many salespeople, especially those on commissions, are under intense pressure also. As a result, these workers may be more than willing to skip breaks and work late without being compensated for the extra hours. However, employment attorney Carrie Hoffman of Gardere Wynne Sewell LLP cautions that not keeping an eye on the payroll clock could cost everyone. A federal report on judicial business of the United States courts notes that lawsuits under the labor standards act for misclassification, off-the-clock work and other violations jumped to 7,310 cases in 2007(the most recent year for which data is available) compared with 4,207 the previous year, and more than four times the 1,580 filings in 1995. The numbers for 2008 and 2009 will almost certainly reflect an increase. "It's problematic enough if the employees do it on their own, but worse if it is encouraged," she says. "In a down economy, payroll budgets have been slashed, leaving managers in need of more man-hours than the budget allows. Forcing off-the-clock work is not the answer though. What you may save will come back to cost you in the long run."

by Robert Tharp at 4:09:24 pm

Thompson & Knight attorney Russell Gully says GINA law will have broad impact for insurers and employers
What the NY Times calls the "most important antidiscrimination law in two decades" quietly takes effect next weekend(Nov. 21). The so-called Genetic Information Nondiscrimination Act forbids health employers from delving into an individual's family medical history in hiring, firing and promotions. It prohibits health insurers from considering such information - such as an individual's family history of heart disease - to deny coverage or set premiums or deductibles.

Writes the NY Times: The new law (called GINA) was passed by Congress last year because many Americans feared that if they had a genetic test, their employers or health insurers would discriminate against them, perhaps by firing them or denying coverage. In a nationwide survey, 63 percent of respondents said they would not have genetic testing if employers could see the results.

"The law is quite broad in its definitions," says Russell Gully in the Dallas office of Thompson & Knight. "When referring to family members the regulations are not just referring to those covered by the plan, but a wide range of individuals who may not even be full-blood relatives. These risk assessments can be used after enrollment, but any financial incentive or penalty to the employer or the individual is prohibited."

by Robert Tharp at 2:54:31 pm

Labor & employment attorney Mark Shank credits improved training, recognition of warning signs with safer wrokplace environment.
Despite heavily publicized incidences of workplace violence in recent months, such tragedies are actually on the decline according to federal statistics. Indeed, while stories of workplace violence have certainly grabbed the headlines lately - the Fort Hood tragedy, the San Diego bus mechanic who killed two co-workers or the unemployed man in upstate New York whose 12 shooting victims included a receptionist and a teacher - workplace violence has dropped over the last decade.

Part of the reason is that employers have learned the value of training and implementing safeguards that can prevent such tragedies. "Employers have become increasingly focused on training to recognize and report the potential for violence, while also making investments in electronic security and other safeguards," says Dallas employment attorney Mark Shank of Gruber Hurst Johansen & Hail. While the weak economy has boosted financial anxieties and stress levels, workplace homicides last year were the lowest in 16 years of tracking by the U.S. Labor Department - half the rate seen in the early 1990s - and most did not involve current or former employees. "Reporting concerns about a co-worker typically don't lead to a firing, but rather to counseling and other support programs that companies and insurers have created."

by Robert Tharp at 4:24:31 pm

Outsourcing is by now an established and attractive tool for businesses trying to increase productivity, but outsourcing and near sourcing guru Jeff Andrews has important advice for businesses to ensure that working agreements remain profitable throughout the lifetime of an outsourcing agreement.

In a column penned for, Andrews describes how problems can arise in just about any long-term service agreement. However, a well-defined

contract can address the kind of problems that typically arise in service agreements. Andrews writes: Disagreements over the scope of the services, static pricing that fails to remain competitive, and the service provider’s failure to deliver promised innovation and performance improvements can lead to increased costs that erode the profitability gains achievable through outsourcing. To address these problems, customers should include provisions in their contracts that comprehensively define the scope of the outsourced services, provide for service evolution and continuous improvement, and provide for pricing resets tied to changes in market prices.

Andrews, a partner in the Houston office of the global law firm of Thompson & Knight LLP, notes in Industry Today magazine the rise in so-called near sourcing as a competitive and attractive option for U.S. companies that have traditionally looked to India and China for services. The outsourcing of functions from the United States is shifting again – and a growing number of those jobs are returning to the Western Hemisphere. The emergence of a growing middle class in India, spurred in large part by the growth of the outsourcing industry, has meant that outsourcing providers are now rigorously competing with other service and technological industries for labor. Outsourcing providers in the subcontinent have been compelled to increase wages to attract and retain employees, and these profitability pressures are leading companies, including Indian-based providers, to establish service centers in Central American and South American countries.

by Robert Tharp at 11:47:46 am

Arnold & Itkin attorneys representing 28 who used controversial pain pumps following shoulder surgery
Interesting article in yesterday's Wall Street Journal highlights the FDA's increasing concern regarding so-called "pain pumps" that deliver pain killers directly to joints after surgery. Mounting complaints that these pain pumps are to blame for severe and often irreversible cartilage damage led the FDA last week to order the manufacturers to change warning labels on the devices.

Writes the WSJ: The Food and Drug Administration said from 2006 to 2008 it received 35 reports of severe cartilage damage in patients who were given pain pumps after joint surgery. Nearly all the reports involved patients who had shoulder surgery; more than half needed additional surgery, including joint replacement.
Pain pumps are small plastic tubes that deliver and regulate pain medicine constantly, usually for two to three days. The anesthetics in the FDA's alert include bupivacaine, marketed as Sensorcaine or Marcaine, and lidocaine. These anesthetics, the FDA noted, have been used safely in single injections for many years without any reports of cartilage decay.
The new notice says the FDA did not clear pain pump infusion devices using the anesthetics for "intra-articular" or joint surgery. The pumps are approved to be used after abdominal and other surgeries, such as hysterectomies. They are considered a better way to deliver pain-relieving medications because they target specific areas and don't involve narcotics.

Attorneys at the Houston trial law firm, Arnold & Itkin LLP, have filed five lawsuits on behalf of individuals injured using pain pumps following shoulder surgery. "The dangers of these pumps have been known for years, and even the FDA knew it was a bad idea to use them in shoulder joints," says Arnold & Itkin attorney Mike Pierce, who represents the plaintiffs. "Many of our clients have undergone multiple surgeries, all trying to fix a problem caused by these faulty pumps."
Named as defendants are several pain pump manufacturers, including Portage, Mich.-based Stryker Corp. (NYSE: SYK), London-based Orthofix Inc. (Nasdaq: OFIX), Lake Forest, Calif.-based I-Flow Inc. (Nasdaq: IFLO), East Aurora, N.Y.-based Moog Inc. (NYSE: MOG.A), San Jose, Calif.-based Sgarlato R.P. Inc., Vista-Calif.-based Breg Inc., Largo, Fla.-based Linvatec Corp., and Vista-Calif.-based DJO Inc. The lawsuits also name several leading pharmaceutical companies, including London-based AstraZeneca (NYSE:AZN), Abbott Park, Ill.-based Abbott Laboratories (NYSE:ABT), Schaumburg, Ill.-based APP Pharmaceuticals and Lake Forest, Ill.-based Hospira Worldwide (NYSE:HSP).

by Robert Tharp at 4:39:06 pm

Corporate Chapter 11 bankruptcy filings are way up in 2009, but recently released data from show that the real story behind 2009 bankruptcies is the emergence of the so-called PrePack.

Consider: Prepacks have tripled compared to YTD 2008 figures. And the rate appears to be increasing, with five of the last 10 public companies that filed for bankruptcy protection choosing to go the prepack route. Think Six Flags, Lear Corp., CIT and Charter Communications, among others. In a prepackaged bankruptcy, companies and their creditors agree on a reorganization plan prior to the bankruptcy filing and creditors have even voted on the plan. In a pre-negotiated bankruptcy creditors are able to agree on some aspects of a plan, but it is not as formal as a "prepack." The multi-year traditional bankruptcy is now often referred to as a "free fall."

"Because of the lengthy time and expense involved in traditional Chapter 11 proceedings, it's not surprising that the number of prepacks are rising," says Rhett Campbell of Thompson & Knight. Mr. Campbell and a legal team from Thompson & Knight recently concluded a prepack bankruptcy plan in just 25 days, one of the fastest on record.

by Robert Tharp at 3:39:12 pm

To state the incredibly obvious, litigation is expensive. Afterall, the average cost and duration of patent litigation is two years and $3 million, according to Managing Intellectual Property. Need an appeal? That'll be another $2 million. It's especially painful for smaller companies and solo inventors faced with the daunting prospect of trying to protect and enforce their patents, often against household name tech companies with large legal staffs. 

The Lanier Firm, a national litigation firm led by Mark Lanier, has created a unique, contingency-fee approach to IP litigation where clients pay no fees up front, and the firm gets paid only if it wins. Patent litigation veteran Christopher Banys heads The Lanier Law Firm's Intellectual Property Practice Group out of the firm's Palo Alto, Calif., offices. "We're extremely confident in the cases we're handling, and we are committed to helping inventors and companies whose intellectual property rights are infringed, and often outright stolen," Mr. Banys says. The firm already is going up against tech heavyweights including Nintendo, Apple, as well as St. Jude Medical, one of the world's leading medical equipment producers.

by Robert Tharp at 3:47:38 pm

Criticism is mounting against Yaz, the world's No. 1 selling birth control. Among other things, the FDA has admonished the makers of Yaz three times in recent years for its misleading ad campaigns. Meanwhile, more than 100 lawsuits have been filed related to medical complications blamed on the drug. Dallas attorney Angel Reyes of Reyes Bartolomei Browne says women taking this medication should consider speaking with their doctors about alternatives.

While most oral contraceptives carry a risk of blood clots, stroke or heart attack, studies show that women taking Yaz suffer such side effects in much greater proportion than do those taking more traditional birth control pills. "Women have the right to know the truth about Yaz," Reyes says. "Bayer marketed these pills to women in a way that the FDA says minimized the risks associated with the drug. Women need to understand those risks and make decisions based on the best information." Yaz is the top-selling oral contraceptive in the U.S., including 2008 worldwide sales of $1.8 billion.

by Robert Tharp at 3:01:40 pm

Despite flawed initial response, Family Law attorney Betsy Branch says criminal courts are proper venue for abuses uncovered at secretive West Texas compound

Texas child-abuse investigators were roundly criticized for the removal of hundreds of children from a West Texas polygamist sect last year. One of those early critics, Family Law attorney Betsy Branch of Dallas-based McCurley Orsinger McCurley Nelson & Downing, says that while the state's initial response went too far, the subsequent misdemeanor and felony charges are a proper outcome of the investigation. Testimony is now underway in the first criminal trial for Yearning For Zion sect member Raymond Jessop for the offense of sexual assault of a child. "The Supreme Court of Texas agreed that the state went too far with the wholesale removal of children from their parents at this compound," Branch says. "But at the same time, the action by Child Protective Services exposed evidence of very serious sexual offenses against some of the sect's teenage girls."

Authorities allege the girl, now 21, was married to Jessop at age 15 and gave birth at 16. Church records that defense attorneys are fighting to keep out of the trial indicate the girl had previously been married to Jessop's brother before being reassigned to Jessop, who authorities allege has nine wives, many of whom were underage when when they married. According to the Assoicated Press, forensic expert Amy Smuts testified Monday that the probability of Jessop being the father of the alleged victim's daughter was 99.999998 percent.

Jessop's trial is the first since Texas authorities raided the YFZ Ranch in April 2008, sweeping 439 children into foster case. The children have all been returned to parents or other relatives, but thousands of pages of documents and DNA tests taken in the raid have been used to build criminal cases against Jessop and 11 other sect men. The FLDS have historically been based around the Arizona-Utah line but purchased a ranch in Eldorado about six years ago, building numerous sprawling log homes and a towering limestone temple. The sect is a breakaway of the Church of Jesus Christ of Latter-day Saints, which renounced polygamy more than a century ago and does not recognize the sect.

by Robert Tharp at 11:22:57 am

It's hard not to sympathize with 67-year-old Grand Prairie resident Willis Willis. The Vietnam vet was a regular Texas lottery player, known on a first-name basis by the lottery agents/clerks at the Lucky Mart where he bought his numbers...That is, until one of the clerks stole his winning ticket. The Texas Lottery Commission is now taking a curious position: while fully acknowledging that Mr. Willis purchased the winning ticket, commission lawyers say the indicted lottery agent who stole Mr. Willis's ticket and fled the country is the ticket's rightful owner.

Lottery: Grand Prairie man won't get $1 million prize

07:27 AM CST on Tuesday, November 3, 2009
By AVI SELK / The Dallas Morning News
As if things weren't confusing enough for a man named Willis Willis.
During a meeting on Monday, the Texas Lottery Commission told the 67-year-old Grand Prairie man that he is not the rightful winner of a $1 million prize - even though its own investigators have told police he bought the winning ticket.
The real winner, the commission said, is the convenience store clerk who was indicted on charges that he cheated Willis out of his ticket in May. The clerk, 25-year-old Pankaj Joshi, is believed to have fled the country.
"I feel like I've been stolen from twice," a crestfallen Willis remarked, according to his lawyers.
The clerk "did it once - now the lottery's done it again."
But even as Willis' attorneys discussed whether they should sue the lottery commission for the prize, the case took another twist.
The Travis County district attorney's office jumped into the fray Monday evening, saying in no uncertain terms that Willis won the lottery.
"That's Mr. Willis' money. He was the true winner," said Assistant District Attorney Patty Robertson.
And the office promises to put its money where its mouth is - Robertson said $365,000 that has been seized from the store clerk's bank accounts will be turned over to Willis as soon as the paperwork goes through.
But that's not enough for Willis, whose lawyers claim the commission owes him the full prize, regardless of what Joshi did.
A lottery spokesman wouldn't comment about anything, citing pending litigation.
Litigation is not quite pending but distinctly possible, Willis' lawyers said.
"We're looking at all the alternatives we have," said attorney Randy Howry. "And a lawsuit is certainly one alternative."
The debacle began in May when, according to police and lottery investigators, Willis unsuspectingly walked into the Lucky Food Store in Grand Prairie with a winning Mega Millions ticket.
Joshi told Willis that his ticket was a loser and later cashed the prize himself.
Joshi has been indicted on a charge of claiming a lottery prize by fraud, but while police search for him, Willis' lawyers are demanding the commission pay their client the full million - less taxes - right away.
They say the commission was negligent to unquestioningly allow Joshi, "one of its own agents," to walk off with the prize.
That argument didn't fly with the commission.
According to Howry, lottery lawyers said they empathized with the out-of-work maintenance man but that Willis had "no recourse" with them.
The ticket bearer is the winner, they said. Indicted or otherwise.

by Robert Tharp at 11:06:16 am

Entire cottage industries are devoted to helping dissect the common traits of successful attorneys and judges. Here's one not-so-secret trait shared by most who have risen in the legal ranks: a genuine respect for the roles played and the work done by paralegals. Talk about underappreciated - try to think of a great attorney or law firm that doesn't also have a great paralegal or an entire team of them.

Justice Linda Thomas, who retires from the bench October 31 after nearly 15 years as chief justice of the 5th Court of Appeals in Dallas, has long appreciated the paralegal's role in the legal industry. In fact, she began her career as one(then called a "legal assistant"). Linda went on to earn her law degree and have a long and illustrious career on the bench. She shepherded the development of the paralegal profession as Chair of the State Bar of Texas Standing Committee on Paralegals. She also wrote the first Texas appellate opinion on the recovery of fees for work performed by paralegals.

Today marks the Seventh Annual Paralegal Day, and the State Bar's Paralegal Division, the Dallas Area Paralegal Association and the North Texas Paralegal Association honors Linda's commitment to the industry today with an award for her service.


by Robert Tharp at 2:39:57 pm

The rock-bottom price of natural gas has caused many oil & gas production companies to look elsewhere for better returns. Many of these companies are taking the drilling and extraction innovations developed in the U.S. in hotspots like the Barnett Shale in Tarrant County and northern Louisiana's Haynesville Shale to developing natural gas markets where production is less costly and natural gas brings higher prices.

"We're seeing significant interest from U.S. producers in developing unconventional gas resources in Europe and Asia," says Scott Schwind of the Houston office of Thompson & Knight. "Exploration and production is cranking up in China, India, Poland and France, in many cases using the imaging and extraction technologies developed in Texas and Pennsylvania. Until demand and prices increase, pursuing new domestic reserves may not be a sound fiscal decision. However, overseas investments may be a different story."

Writes the WSJ: The development of the Barnett Shale almost single-handedly reversed the decline in U.S. natural-gas production. Last year, the Barnett produced four billion cubic feet of gas a day, making it the largest field in the U.S. Other companies such as Newfield Exploration Co., Southwestern Energy Co. and Range Resources Corp. found shale fields across the U.S.

by Robert Tharp at 4:44:48 pm

When Thompson & Knight helped guide Baseline Oil & Gas through Chapter 11 bankruptcy proceedings in 25 days, it marked one of the top 10 fastest bankruptcies to be completed in the U.S. Such is the value of increasingly popular prepackaged bankruptcies, which allow companies to streamline bankruptcies by negotiating with creditors before formally filing for reorganization. "Through the use of a pre-packaged Chapter 11 plan and a concentrated effort, we were able to receive confirmation of this reorganization plan in less than a month, with the confirmation hearing lasting only 60 minutes, which is truly extraordinary for this type of transaction," says Rhett Campbell of Thompson & Knight, who led Baseline's legal team. A publicly traded company that controls energy-producing properties in Texas and Indiana, Baseline's bankruptcy confirmation hearing was held and the order of confirmation was signed on the same day.

by Robert Tharp at 4:45:09 pm

Youngsters are proving particularly susceptible to the H1N1 swine flu this year, and that's creating a noticeable increase in the pitter patter of little feet around the workplace. There have been more than 9,000 confirmed cases of the H1N1 flu strain reported in the United States so far this year, according to the latest data from the Centers for Disease Control, while the World Health Organization puts the number of 2009 cases worldwide at nearly 350,000, with at least 4,100 deaths resulting from the virus.

Yet, even as H1N1 spreads globally, many companies are woefully unprepared for the employee absenteeism that could result. Considering the seasonal flu hasn't even struck yet in most parts of the country, labor & employment attorney Audrey Mross, a partner at Munck Carter PC in Dallas, tells the HR Compliance Law Bulletin that it's never too soon for employers to review their policies regarding kids in the workplace. Writes the HR Compliance Law Bulletin:

In the spring, swine flu fears sparked sudden closures at more than 100 schools in at least eight states, sending parents scrambling for last-minute child care. Some parents stayed home, some found alternative care, and some brought their children with them to work.
Not everyone agreed with the latter choice. "This morning, one of our workers stated she had to work from home since her son's school was closed due to the swine flu, or she could just bring her son up to the office and work. Ummmm-please stay home," wrote one person on a national parenting Internet forum.
Mross tells the HR Compliance Law Bulletin that the key to a workable policy is consistency and communication, rather than an outright ban:
"If the environment, including coworkers, are amenable to the occasional child at work, have a policy that explains the limitations which the parent will be responsible for enforcing, such as no roaming, noise, food/drink, off limits areas, and so on," she says. "The important thing is to have and communicate a policy so that everyone in the workplace has the same expectation. A policy puts everyone on fair notice."

Read the full article here.

by Robert Tharp at 10:17:00 am

These days, more and more business deals and disputes cross geographic borders. In order to help clients facing those worldwide challenges, The Lanier Law Firm is continuing to expand its international reach. The firm recently launched an International Arbitration and Dispute Practice, and firm founder Mark Lanier also unveiled plans to open up shop in London in 2010.

Led by Mr. Lanier and Dana Taschner, Managing Attorney of the firm's Los Angeles office, the new International Arbitration and Dispute Practice will partner with Dallas attorney and noted forensic psychologist Lisa Blue to handle arbitration matters for corporations around the world. The new practice group also works to help other law firms trying to prevent possible conflicts with their corporate clients.

"Large law firms often want to avoid a particular arbitration matter so they can steer clear of a potential conflict, but they also want to protect their role in a corporate client's other legal matters," says Mr. Lanier. "Under these circumstances, our team is able to step in and handle arbitration proceedings in order to eliminate the conflict risk for law firms and their clients."

The Lanier Law Firm attorneys have represented clients in business and financial disputes around the globe, and serve as arbitrators on some of the world's leading international panels. Mr. Taschner currently serves on the Panel of Arbitrators at the World Intellectual Property Organization, and also belongs to the Association for International Arbitration and the London Court of International Arbitration.

The new practice group already has garnered its share of media attention, including an article posted on the popular legal Web site, as well as articles on the Web sites for the Houston Business Journal and Global Arbitration Review (subscription required).


by Robert Tharp at 11:38:12 am

On January 1, a new Environmental Protection Agency regulation quietly goes in effect that will require businesses of all types to monitor greenhouse emissions. According to the Chicago Tribune's The Swamp blog: The proposed regulation would apply to large-scale industrial sources of the heat-trapping gases which scientists blame for climate change but not to smaller sources, such as new schools, as some critics of EPA action had feared. It will force new - or substantially modified - industrial emitters to "demonstrate the use of best available control technologies and energy efficiency measures" to minimize greenhouse gas emissions, according to the EPA.

The greenhouse gas regulatory system has a number of implications, particularly for publicly traded companies, says climate-change attorney Scott Deatherage, leader of  Thompson & Knight's Climate Change and Renewable Energy Practice Group. "The costs, financial disclosures and public relations aspects of this and other pending climate change legislation should be a strategic issue for corporate directors and managers." Although some industries had sought to delay the new requirements, facilities now have less than four months to prepare. "It may be a challenge for some businesses to make the significant investments in monitoring equipment and processes to meet that deadline."


by Robert Tharp at 10:55:31 am

While health care reform remains firmly in the sausage-making political process, one component of the plan is rapidly gaining momentum. The movement toward digitizing medical records is well underway as physicians and hospitals make substantial investments to revolutionize the way patient records are maintained. According to a recent Daily Finance report: experts call the lack of communication and coordination among doctors, specialists, and hospital systems one of the biggest problems in our health system.

Between 2004 and 2006, as many as 238,337 deaths in the U.S. were potentially preventable, according to healthcare rating company HealthGrades. Some could have been avoided with electronic health records, which could more easily flag patients with other underlying conditions or who could experience dangerous drug interactions. There have been similar incentive programs to move physicians into the paperless age. In June 2008, Medicare announced a $150 million grant to help 1,200 small physician practices in 12 cities switch to electronic records.

In addition to tapping governmental assistance, many independent physicians are seeking financial help from hospitals to make the costly transition. Healthcare industry attorney Mary Jean Geroulo of Stewart Stimmel LLP in Dallas warns that hospitals must be careful in navigating the federal rules governing the delicate relationships between hospitals and non-employee doctors. "There isn't a one-size-fits-all model for making the transition," she says. "The regulations significantly limit what a hospital can provide as an incentive to a non-employee physician, and the consequences of not complying can be substantial."

by Robert Tharp at 11:33:10 am

It's hard to underestimate the potential business ramifications of the recent Second Circuit ruling in Connecticut v. American Electric Power Co. Over at Gardere's Environmental Practice Group, Richard O. Faulk calls the ruling "overly broad" and says it could have an extraordinary impact on any business that emits greenhouse gases like carbon dioxide far beyond the group of utilites named as defendants in the case.

While U.S. lawmakers are still trying to decide whether to regulate greenhouse emissions, the Second Circuit ruling allows a public nuisance lawsuit to move forward against a group of utilities with power plants in 20 states. Faulk says it's not a stretch to conclude that any business that produces greenhouse gasses could face similar legal exposure. "The decision entails major risks for all industries," he says. "Any industry that generates greenhouse gas emissions is implicated, and that category includes virtually all businesses." 

Faulk says the ruling presents businesses with a "Hobson's choice" scenario in which it may become more advantageous to accept comprehensive federal regulations and statues addressing greenhouse gas emissions rather than risk exposure to such private legal actions. "If, however, the regulations and legislation are not sufficiently comprehensive, industries may still face lawsuits to the extent that claims are not completely preempted." 

As the folks at the Environmental Law Prof Blog note: The case may go to the US Supreme Court and there is a chance that it could be reversed there.  Or it may not.  Also, the US Congress could (and almost certainly will) eliminate all such public nuisance lawsuits when it passes a comprehensive climate change law.  The industry will now be lobbying heavily, saying something like this to the Congress:  “Please regulate us (weakly, of course) so that the courts will stop doing so.” 

This is a classic situation where environmentalists win a big  environmental case based on an old, old legal concept and this gives them bargaining power in the legislative process.  This happened with cases against factories polluting the water without permits in the 1960s, a case against the Trans-Alaska oil pipeline in the early 1970s; a case against clearcutting in the National Forests in the mid 1970s.  In each of those three cases, the law that was involved was a statute that was around 100 years old.  The public nuisance cases cited by the Second Circuit are more than 100 years old today.  Now the bargaining will begin. 

The ruling's impact will be among the issues discussed at the Oct. 28 U.S. Chamber of Commerce Legal Reform Summit in Washington, D.C., where Faulk will serve as a "Climate Change: The New Mass Tort For the 21st Century?" panelist.

by Robert Tharp at 4:31:02 pm

Small east Texas based internet technology innovator Eolas Technologies Inc. turned a lot of heads yesterday after filing patent infringement litigation against nearly two dozen of the biggest and best known companies that do business on the Internet.

Household names like Adobe, Amazon, eBay, Sun Microsystems and YouTube no doubt get sued all the time, but the Eolas litigation carries extra heft because the legal argument has already resulted in a $565 million federal judgment against Microsoft in 2004. That whopper has already withstood two separate reexaminations at the United States Patent and Trademark Office.

As Dow Jones reports: The latest lawsuit, filed in the U.S. District Court for the Eastern District of Texas, seeks preliminary and permanent injunctions to keep defendants, which cut across industries to include Citigroup Inc. (C), Blockbuster Inc. (BBI) and J.C. Penny Co. Inc. (JCP), from using technology covered by two Eolas patents. The lawsuit also seeks undisclosed damages. The patent that was the subject of the litigation against Microsoft enables Web browsers to act as platforms for fully interactive embedded applications. Eolas said in a statement that the patent was granted in November 1998 and twice reaffirmed by the patent office, most recently in February. The technology at issue was developed by Eolas Chairman Michael Doyle, while he was at the University of California at San Francisco in the 1990s. The University still owns the patent, but Eolas said it is the exclusive licensee. Eolas said a second patent, issued this month, allows Web sites to add fully interactive embedded applications to their online offerings through the use of plug-in and AJAX (asynchronous JavaScript and XML) Web development techniques.

Reports PCMag: Eolas sued Microsoft in 1999, and won a $521 million settlement in August 2003. Microsoft appealed the following year, but the case was remanded. In 2005, the Supreme Court refused to hear Microsoft's appeal, so Microsoft tried to go through the Patent & Trademark Office. When that also failed, Microsoft and Eolas announced in 2007 that they had agreed upon a settlement, the terms of which were not released.
The companies sued Tuesday are in violation of Eolas patents, the companies said, because they have "web pages and content [that is] interactively presented in browsers" and they use, offer, or sell "software that allows content to be interactively presented in and/or served to browsers."
In Adobe's case, Eolas cited its and Web sites, as well as Flash and Shockwave. When it comes to Apple, its, QuickTime, and Safari products are in violation, Eolas claims, while Google is violating the patents with its Chrome browser.
"We developed these technologies over 15 years ago and demonstrated them widely, years before the marketplace had heard of interactive applications embedded in Web pages tapping into powerful remote resources. Profiting from someone else's innovation without payment is fundamentally unfair. All we want is what's fair," Dr. Michael D. Doyle, chairman of Eolas, said in a statement.

Mike McKool, head of the national law firm McKool Smith and lead counsel for Eolas, says he hopes the lawsuit will put an end to the widespread unauthorized use of the company's technology patents. "What distinguishes this case from most patent suits is that so many established companies named as defendants are infringing a patent that has been ruled valid by the Patent Office on three occasions," says Mr. McKool.

by Robert Tharp at 11:48:19 am

It's enlightening to look at Adidas aggressive efforts to protect its trademarked three-stripes logo from 70-year-old Brand Bobosky's standpoint. Adidas has been understandably aggressive in protecting its trademarked three-stripes logo. Just last year, the athletic apparel and sporting good manufacturer won an epic $305 million verdict against Payless Shoestores for selling shoes that looked a little too much like Adidas. The verdict included $137 million in punitive damages against Payless.

And that's what makes the company's multimillion dollas "We Not Me" advertising campaign such a head-scratcher, says Dallas attorney Stephen Drinnon of The Drinnon Law Firm. According to a lawsuit the firm filed on Bobosky's behalf, Bobosky had secured federal trademark and copyright protection over "We Not Me," years before Adidas roled out the commercials in 2007 featuring NBA MVP Kevin Garnett. He also incorporated We Not Me, Ltd., through the state of Illinois and created the Web site, , in 2004.

The Adidas advertising campaign included exposure during the World Series and the NBA playoffs. Drinnon says that Bobosky's complaints to Adidas had the opposite effect, and the media campaign expanded after Mr. Bobosky notified Adidas of his property rights to "We Not Me." Even today, NBA-sanctioned clothing featuring Mr. Bobosky's protected words can still be purchased. Adidas is an official clothing provider of the NBA.

"Companies like Adidas go to great lengths to protect their own ingenuity and intellectual property, yet they've chosen to trample on Mr. Bobosky's protected property rights," Drinnon says. "Adidas is a powerful second-comer that has taken everything he tried to build. Mr. Bobosky's words are now wrongly perceived as something that Adidas owns."

As Bobosky explained to the Chicago Daily Herald: "Basically it's Christ's message reduced in the simplest terms, do unto others," he said. "I think it's just a good reminder to people about how to conduct their lives and it works."

"They've basically destroyed any chance I have of marketing it and licensing it to a company or to a church or someone that believes in that message and would like to promote it and take it to another level," he said.

The lawsuit, filed in the U.S. District Court for the Eastern District of Texas, also names as defendants Adidas America, NBA Properties Inc., NBA Services Inc., the Boston Celtics, and Kevin Garnett.

by Robert Tharp at 11:38:37 am

Seems like ancient history now but way back in March 2008, the Wall Street Journal described bankruptcy as the "hottest growth sector" for law firms. That remains true today. Said the WSJ at the time: A survey of more than 300 attorneys from the country's largest law firms found that a plurality -- one out of every four -- expects bankruptcy law to be the fastest area of growth in the next 12 months. That number exceeds the tally of attorneys who think litigation or corporate governance will be hot growth areas.

When the dust settles on the worldwide economic crisis, national litigation firm McKool Smith will have almost certainly emerged as one of the firms that seized opportunities during difficult times and managed to strengthen its position and grow in stature along the way. In addition to a regular stream of head-turning jury verdicts and the opening of now-bustling offices in Washington, D.C., and New York City, the firm has now added a national bankruptcy practice and hired some of the country's most respected bankruptcy veterans.

Noted bankruptcy attorney Hugh M. Ray leads McKool Smith's bankruptcy practice and will devide his time between the firm's New York and Houston offices. Joining him are bankruptcy veterans Peter S. Goodman and Paul D. Moak, who will work out of the New York and Houston offices, respectively. All three attorneys previously practiced with Andrews Kurth, where Mr. Ray led the firm's national bankruptcy practice. Also joining the group as a principal is Hugh M. Ray, III, a bankruptcy attorney previously with Weycer, Kaplan, Pulaski & Zuber in Houston. The firm expects to add several more bankruptcy attorneys by the end of 2009.

In a career spanning four decades, Mr. Ray has played key roles in some of the coutnry's most recognizable bankruptcy proceedings, including matters involving Lyondell Petrochemical, First Republic Bank Corp., Continental Airlines, Semcrude, L.P., First City Bancorporation, Power Company of America L.L.C., L. Tersigni Consulting, and many others. In addition to making several appearances before Congress to testify on proposed amendments to the Federal Bankruptcy Code, Mr. Ray also has served in leadership positions with many notable bankruptcy and business groups, including serving as Chairman of the Business Bankruptcy Committee for the American Bar Association’s (ABA) Business Law Section, Chairman of the ABA Energy Business Committee, and member of the ABA Standing Committee on Judicial Selection, Tenure and Compensation. Prior to his work in private practice, Mr. Ray worked as an Assistant United States Attorney in Houston.

"Hugh Ray is one of the top bankruptcy lawyers in the nation, and we are proud to have him lead our firm into this growing area of the law," says Mike McKool, co-founder of McKool Smith. "Hugh and the rest of his team are known nationwide for their work in some of the country's most significant bankruptcy matters. When we realized we had the opportunity to bring in Hugh and his group, this was an easy decision."

Mr. Ray says the move to McKool Smith is based on several factors. "It's no secret that McKool Smith has some of the finest courtroom lawyers anywhere, which is one of the main reasons we decided to join the firm," says Mr. Ray. "I'm also very excited about helping the firm build a world-class bankruptcy practice."

Mr. Goodman has represented clients in complex bankruptcies for more than 20 years, including Adelphia Communications Corp., KCS Energy Inc., Bank of New England Corp., Semcrude, L.P., First City Bancorporation, Power Company of America L.L.C., L. Tersigni Consulting and PSINet Consulting Solutions Holdings, Inc., and many others. He has been recognized as one of the state's top bankruptcy lawyers in New York Super Lawyers magazine. 

Mr. Moak has been involved in a wide range of complex Chapter 11 cases. In his practice, he has represented debtors, secured lenders, creditor committees and equity committees in bankruptcy reorganization proceedings, as well as bankruptcy-related litigation matters. He possesses particular expertise in the energy, health care, chemicals, and aviation industries. 

Mr. Ray III represents publicly traded companies who successfully reorganize in bankruptcy and major creditors in their collection from complex bankruptcies. He often acts as a trial attorney in adversary proceedings before the bankruptcy court.

by Robert Tharp at 3:29:58 pm

There's no doubt that Hurricane Ike made a terrible mess of things along the Texas Gulf Coast more than a year ago, but the National Law Journal revisits the scene and notes that bad-faith insurors and a new rule issued by the Texas Department of Insurance have created a world of problems for property owners trying to rebuild. Since Ike, the Texas Department of Insurance requires property owners along the coast to prove they have flood insurance before they can buy or renew state-backed windstorm policies. 

That's proving to be salt in the wounds for thousands of storm victims still wrestling over claims with insurers operating in bad faith. The rule change means that storm victims will have to pay more for insurance going forward, and they won't be able to obtain wind policies without first securing flood coverage. Attorneys like Phillip Sanov, who heads the bad-faith insurance practice group at Houston's Lanier Law Firm, report that many insurance companies continue to lowball property owners on claims. "We're hopeful that just like in most places, once a lawyer gets involved, the carrier will start doing closer to the right thing by their policy holder," Sanov says.

Meanwhile, bad faith insurance attorney  Kurt Arnold, a partner in Houston's Arnold & Itkin, tells the NLJ that hundreds of lawsuits remain pending against insurance carriers that have denied or underpaid claims for Hurricane Ike victims. Arnold has more than 150 such lawsuits himself - another colleague has more than 1,000.
"They're sending adjusters out who just don't know what they're doing. I have some claims that had $150,000 in damages, and [the adjuster] wrote up $2,000," he says, adding that the adjusters are often way off. "Some of the houses that are nearly totaled might get written up for $2,000."

by Robert Tharp at 4:37:57 pm

Since it's not news until The New York Times weighs in, we bring you this story about the growth of climate change practices.
Law Firms Prep Clients for Climate Policy Implications

Stalled congressional action on greenhouse gas legislation has not stopped prominent law firms from taking the lead in helping companies navigate the legal, public policy and business implications related to climate change.
"Climate change and renewable energy developments are the next big thing in environmental and energy law," said Michael Gerrard, director of Columbia Law School's new Center for Climate Change Law and senior counsel to Arnold & Porter. "Every law firm that has a practice in either of those areas is trying to position itself so that when the major work arrives, they will be able to grab a good chunk of it."
Businesses face state and regional and -- in some cases -- international emissions restrictions. They seek legal advice on everything from verifying energy credits to addressing Securities and Exchange Commission disclosure requirements, according to Robert McKinstry, the partner in charge of the Climate Change and Sustainability Initiative at Ballard Spahr Andrews & Ingersoll.
"We have a cross-sectional group that works on climate change and carbon changing -- it's a clean-tech group," said  Scott Deatherage, a partner and leader of the Climate Change and Renewable Energy Practice Group at Thompson & Knight.
"There are security issues with respect to disclosure," Deatherage said. "When it comes to incentives, there are a lot of tax issues also. I do work for renewable energy companies and companies developing carbon credit projects both domestically and internationally."
The fast-growing practice area has drawn upon attorneys from existing corporate, energy, tax and, of course, environmental groups.
For example, the Climate Change and Sustainability Initiative at Ballard integrates the environmental, energy and project finance, real estate and litigation practices.
Deatherage said his firm has also tried to steer clients toward the incentives to be gained from a corporate climate change strategy.
"I do work for renewable energy companies and companies developing carbon credit projects both domestically and internationally," he said. "I was contacted to have a client participate in the Carbon Disclosure Project. The company was facing shareholder petitions, and that was the resolution they reached with shareholders -- voluntary greenhouse gas reporting."
Deatherage runs a blog called "The New Carbon Cycle," which offers news and analysis about "the rapidly evolving law and policy surrounding climate change, carbon trading and markets."

by Robert Tharp at 2:14:20 pm

As U.S. Immigration and Customs Enforcement shifts to cracking down on employers rather than individual illegal immigrants, U.S. businesses are increasingly in need of expert guidance for navigating the complicated legal and policy landscape. Dallas-based Yarbrough Strategic Advisors has broadened its growing investigations group with the addition of longtime federal immigration investigator A.J. Irwin.

In his capacity as the firm's Director of Investigations, Irwin advises client companies on best practices for complying with federal immigration laws and policies, as well strategies for avoiding audits and fines related to employment matters.

Before stepping down as a federal investigator, Irwin managed the Joint Terrorism Task Force and anti-smuggling operations for an 18-state region from Canada to Mexico. He also led an investigation that resulted in the largest human-smuggling case ever prosecuted by the U.S. Attorney General. Another investigation led to the largest criminal fine imposed for immigration law violations against an employer.

Following the Sept. 11 terrorist attacks, Irwin played a key role in implementing policy changes and department reorganizations. At Yarbrough Strategic Advisors, the consulting arm of the Yarbrough Law Group, Irwin supervises investigations involving intellectual property, financial fraud and corporate compliance, among other things.

These can be troubling times indeed for employers trying to keep up with rapidly changing laws and policies. Earlier this month, the Department of Homeland Security began enforcing an E-verify program that requires federal contractors to electronically verify the immigration status of workers. The program is designed to identify workers who are in the U.S. illegally and using fake identities in order to work. "A.J.'s unmatched base of knowledge of investigations and practices within the Department of Justice provides a huge benefit to our clients," says attorney Matt Yarbrough, founder of Yarbrough Strategic Advisors. "With A.J. and others on our team, we are able to offer invaluable expertise to employers who want to stay on top of the important changes in immigration law."

by Robert Tharp at 11:57:18 am

Consider this factoid about the legal relationship that Americans increasingly have with product manufacturers, service providers, credit card companies and employers: if you use credit cards or cell phones, have purchased a house from a builder or placed a loved one in a nursing home, chances are you've signed away your constitutional right to a jury trial if there's a problem.

From routine credit card contracts to multi-million-dollar home purchases, the increasingly popular and controversial use of mandatory predispute arbitration clauses puts consumers at a distinct legal disadvantage when problems arise, says Dallas attorney Mark McQuality of Shackelford Melton & McKinley. It's a lopsided system in which consumers lose 94 percent of the time, according to a recent California study. Decisions by arbitrators -- lawyers or professionals who oversee and rule on cases -- are final and cannot be appealed.

U.S. lawmakers are now debating the Arbitration Fairness Act, which would ban such predispute arbitration clauses in consumer, franchise and employment matters. McQuality, who represents homeowners in construction-related complaints and other business torts, says it's about time. "These hidden clauses cause consumers to sign away their constitutional right to a jury trial," he says. "There's a place for arbitration, but it should be a voluntary option once a dispute has surfaced, as opposed to something that's buried in paperwork."

by Robert Tharp at 3:38:26 pm

As insolvent businesses struggle to restructure their finances, an alternative to traditional Chapter 11 reorganization plans is growing in popularity. Prepackaged bankruptcies, or "prepacks," offer companies a way to negotiate and gain approval of key constituencies before formally filing for reorganization. Such prepacs typically offer a new capital structure involving an exchange of debt for equity that is hammered out between the company and its main creditors before it is signed off by the court."It's likely there will be a significant increase in the number of prepacks in 2009 compared to last year," says Ira Herman of Thompson & Knight's New York office. "The financial crisis coupled with changes in the Bankruptcy Code make prepacks a cost-effective way to resolve balance sheet issues. However, if there is an unwillingness among a secured class of bondholders to negotiate a resolution, or if a large class of unsecured creditors cannot be dealt with consensually, then a prepack is unlikely to work."

by Robert Tharp at 3:21:21 pm

I can't help imagining the jailhouse conversation:....I robbed a bank, what are you in for? ... I sold defective shoes at a garage sale.

That great American staple of the free enterprise system - the garage sale - has gotten a lot more complicated. Used to be, holding a garage sale was as simple as posting a few well-placed signs, dragging your junk out on the driveway and watching the cash come in. But a federal law now makes it a crime to sell items that the Consumer Product Safety Commission has recalled. While CPSC officials have educated the larger thrift stores about the new law, individuals are also on the hook if they sell a defective car seat, children's shoes or even a garlic press/slicer. "If you're selling a crib or a car seat, the responsibility is yours to make sure the CPSC has not recalled it and that it doesn't present a danger," says Dallas attorney Angel Reyes, managing partner of Managing Partner of Reyes Bartolomei Browne. "And remember, it's not just baby items. The government recalls products adults use too."

This is all particularly relevant because individual reselling has increased during the economic downturn. Reports the Wall Street Journal: Amid the recession, more sellers are trying to wring some cash out of their old possessions. Listings on Craigslist for garage sales have increased 60% in the past year, and another resale site,, has seen a rising trend, with 3,000 listings for tag sales in the month of June. Large-scale yard sales have actually declined as fewer people have moved in the weak housing market. But those who monitor the resale industry say that more sellers are trying to get cash for smaller-ticket items.

The sheer variety of products being recalled in a given year can make it hard to guess what products might be unsafe. The ten biggest recalls of 2008 included toys, cribs, electric blowers, cosmetic accessory bags and window blinds. But buyers and sellers who want to check for recalls can search on, which offers searches by product type, company name, or hazard, among other categories, or on, a site that lists recalls by the Consumer Product Safety Commission and five other federal agencies. They can also sign up with the safety commission to receive recall alerts by email.

by Robert Tharp at 11:16:41 am

Plenty has been said about the role that nationwide tort reform could or should play in health care reform debate. The discussion has prompted many to take a look at the Texas experience, where wide-ranging tort reform was implemented in 2003. Among other things, state law in Texas limits noneconomic damages like pain and suffering to $250,000.

Proponents of the reforms point to the influx of medical doctors who have relocated to Texas since 2003 and a decline in medical liability insurance rates and liability lawsuit filings. Critics note that health care costs continue to escalate and that tort reform has made it difficult if not impossible for many legitimate lawsuits to proceed, while the noneconomic caps are onerous to the poor, the young and the elderly because they have little to show for lost earning ability necessary to calculate economic damages. With health care reform front-and-center, we asked some of the state's top attorneys about the Texas tort reform model and how it might affect health care reform if emulated nationwide. Not surprisingly, we got three distinct and different perspectives.

Big Verdicts Still Possible Under Tort Reform, MedMal Caps
Even in a state such as Texas with caps on punitive damages in medical malpractice cases, large verdicts can still occur. "Once tort reform passed, we saw an immediate drop in lawsuits, but the number of filings began to rise as both plaintiff and defense attorneys learned the new rules and courts began interpreting the practical limits of the new rules," says Linda Stimmel of Stewart Stimmel LLP, a Dallas-based firm focused on health care law. "It is not a perfect system, but it has been very beneficial in reducing the number of frivolous lawsuits, allowing reasonable settlements because of the defined limits and allowing physicians to practice medicine without going broke trying to pay their insurance premiums." 

Lawsuit Caps No Prescription for Healthcare Troubles
One look at the six years of tort reform in Texas should convince President Obama that the idea of national medical malpractice reform is a bad one, says nationally recognized trial attorney Mark Lanier of The Lanier Law Firm. "Doctors and insurance companies claimed tort reform was the cure for our state's healthcare problems, but six years of rising healthcare costs are all we have to show for it," says Lanier, who also disagrees with the President's hypothetical of keeping medical malpractice cases out of courtrooms by assigning them to special review panels. "Our founding fathers got it right by trusting juries to settle disputes rather than politicians or hired committees," he says.

Healthcare Tort Law Best Left to States
Tort reform in Texas provides some valuable lessons for any federal healthcare reform package. "If there were to be federal legislation in an area, I think some aspects of the Texas medical malpractice laws are good," says defense attorney John Martin of Dallas' Thompson & Knight and incoming president of the Lawyers for Civil Justice. "I think the informed consent and expert reports parts are good, although the expert reports concept could be written much better than the one we have in Texas so that less litigation is required. However, my personal belief is that tort law should be handled at the state level, not the federal level."


by Robert Tharp at 2:47:45 pm

The attorneys at Jackson, Miss.-based Forman Perry Watkins Krutz & Tardy LLP know all about defending toxic exposre cases in venues traditionally viewed as friendly to plaintiffs. Earlier this year, their defense victory in a jurisdiction described as a "judicial hell holl" drew national media attention. Last week, the firm walked away with another take-nothing defense verdict in a Mississippi asbestos exposure case.

Plaintiff Bob K. Martin, a former oilfield worker, claimed that his health problems were caused by exposure to asbestos between 1965 and 1986 while working in oilfields in the southeastern United States. Following a two week trial, jurors returned a defense victory for Union Carbide Corporation, ConocoPhillips Company and Montello, Inc. Forman Perry is a real pioneer in multidistrict litigation covering silica and asbestos products, and their work has led to the dismissals of tens of thousands of claims.

"We are very pleased about the juror's careful consideration of the facts in this case," says Marcy B. Croft, lead counsel from the Forman Perry defense team representing Union Carbide, who worked in conjunction with National Trial Counsel Kevin M. Jordan of Baker Botts, LLP, and Michael G. Terry of Hartline, Dacus, Barger, Dryer & Kern, LLP. "We maintained from day one that our client acted responsibly, and this verdict is proof."


by Robert Tharp at 4:04:31 pm

Just two years after establishing an office in New York City, McKool Smith continues to expand and now counts 21 attorneys in New York with the addition of trial-tested litigator Kyle Lonergan. Mr. Lonergan joins McKool Smith from the firm of Simpson Thacher & Bartlett. His practice focuses on complex commercial litigation and white collar matters, and he has litigated high profile cases in a number of areas, including securities, antitrust, insurance coverage and breach of contract.
Mr. Lonergan has represented clients throughout all phases of litigation, including trial and arbitration, and in connection with investigations by the U.S. Securities and Exchange Commission, the U.S. Department of Justice and the Federal Bureau of Investigation. He will continue his work in these areas at McKool Smith, including handling matters with the firm's International White Collar practice led by firm principals Jack Cooney and Tom Engel.
Mr. Lonergan maintains an active pro bono practice in the environmental field. He has represented the Natural Resources Defense Council and other environmental groups for the past decade in litigation that has resulted in significant protections for some of the country's most important national parks, including Everglades National Park in Florida and Grand Teton National Park in Wyoming.

by Robert Tharp at 2:20:10 pm

As Brazil eyes what appears to be the largest oil reserve discovered in the Western Hemisphere in the last 30 years, a raft of U.S. energy sector service providers stand to gain considerably. The so-called `pre-salt' region off Brazil's southeastern coast contains an estimated 50 billion barrels of oil, and Brazil will no doubt need assistance from U.S. oil field service industry companies, says  Andrew Derman of Thompson & Knight. "This will require massive financial investments, advanced technologies and a highly skilled workforce over many years, if not decades, to fully assess and recover these reserves," Derman says. The plan calls for Brazilian energy giant Petrobras to be the region's sole operator and hold a 30 percent stake in all development joint ventures, while allowing the government to keep a bigger share of oil profits. To interview Mr. Derman, contact Barry Pound at 800-559-4534 or

by Robert Tharp at 1:52:33 pm

The U.S. Small Business Administration is trying to help small businesses score government contracts through the American Recovery and Reinvestment Act of 2009 via a new online training course designed to provide insight into the government contracting process. While helpful, the training course fails to disclose some important risks that small businesses need to know about when working on government contracts, says Marshall Doke Jr., head of the Government Contracts practice at Gardere Wynne Swell LLP. For example, the training course does not detail how these contracts include certain unallowable costs and unique accounting rules, as well as special rules for purchasing, estimating, quality controls and socio-economic policies. These rules essentially provide a mandate for how the business must be run. "Some basic rules of commercial business are not applicable to government contracts," Doke says. "The contracts all favor the government, including criminal and civil laws, dispute resolution, and voluminous contract clauses. It is a good business if you know the rules, but it is dangerous if you do not." To interview Mr. Doke, contact Rhonda Reddick at 800-559-4534 or

by Robert Tharp at 2:27:19 pm

Those watching out for the rights of the disabled hailed a new state law that quietly went in effect last week, but few others took notice of House Bill 978. Like the federal Americans With Disabilities Act that was broadened a year ago, employers should view this legislation as a wake-up call to update policies and educate supervisors regarding the definition of "disability" in employment matters, says labor & employment attorney Bryan Neal of the Dallas office of Thompson & Knight. HB 978 makes state law consistent with the ADA's defining criteria and clarifies terminology for medical conditions that may be used as the basis in workplace discrimination claims. As a result, authorities, employers and employees will have a single legal standard that governs this issues, rather than one set of rules for state claims and another for federal complaints.

The law generally provides a broader definition for employees to be considered disabled and consequently able to sue under the statute. For example, it spells out that episodic medical conditions such as epilepsy, now qualify as disabilities. Also, when deciding whether an individual is disabled, courts no longer may consider the ameliorative effects of mitigating measures such as medication, hearing aids, or prosthetic limbs.

Neal says the law will likely prompt more state workplace discrimination claims. "HB 978 provides that episodic diseases such as diabetes, cancer and epilepsy qualify as a disability, and the beneficial use of medication or devices by individuals to manage these conditions can't be considered by the courts," he says. "Business coalitions and other opponents foresee an increase in disability discrimination lawsuits as this legislation makes state law conform to the broader standards of disability found in federal discrimination claims." To interview Mr. Neal, contact Barry Pound at 800-559-4534 or

by Robert Tharp at 11:43:31 am

Bad Faith Insurance Attorney Kurt Arnold: With New Law, Some May Not Even Have Insurance for the Next Storm

Hurricane Ike damaged or destroyed thousands of structures when it blew across the upper Texas Gulf Coast. A little over a year later, hundreds of lawsuits remain pending against insurance companies that have denied or underpaid claims for storm damage. Obtaining insurance for homes and businesses along the Gulf Coast is never easy. The Texas Windstorm Insurance Association is considered the insurer of last resort - the kind of insurance company that property owners can turn to when they can't get coverage anywhere else. Policy holders' post-Ike experience with the TWIA has not been stellar, and the association is named in numerous bad faith insurance lawsuits.

But bad faith insurance attorne  Kurt Arnold of Houston-based Arnold & Itkin LLP says the situation has gotten even more bleak. A new state law that went in effect this week makes it even harder to obtain TWIA coverage to begin with. "As an 'insurer of last resort,' the TWIA should help protect Texans," says Arnold. "Now homeowners who are still struggling to rebuild are wondering if they'll be covered at all the next time a storm blows in." To interview Mr. Arnold, contact Alan Bentrup at 800-559-4534 or

by Robert Tharp at 4:00:15 pm

HRWorld has an interesting article today about how employers are increasingly moving to a paperless payroll system that both saves money and provides a much more convenient and secure payment mechanism for the legion of workers out there who don't have bank accounts.

Writes HRWorld: Paying employees who don't have a bank account is a problem facing a growing number of businesses. Such "unbanked" individuals would like to be spared the trouble and expense of using check-cashing stores, supermarkets and other nonbank sources to receive their salary. Meanwhile, companies that currently pay such employees with currency need to escape the security, payroll and regulatory headaches that accompany cash disbursements.

To address the need for a secure, hassle-free electronic employee-payment system, various financial institutions and third-party vendors have created payroll debit-card - or paycard - services. It's a trend that seems to be catching on. A 2006 study by Boston-based financial-research firm Aite Group LLC estimated that expanding paycard use will lead to nearly 60 percent market growth by 2009.


Employment attorney Carrie Hoffman of Gardere Wynne Sewell agrees: "Because it is all electronic, these systems can dramatically lower payroll processing costs and in an industry such as retail that is operating on an increasingly thin profit margin, the savings can help keep a business operating," she says. To interview Ms. Hoffman about the increasing use of paycards, contact Rhonda Reddick at 800-559-4534 or

by Robert Tharp at 2:00:25 pm

Just weeks after McKool Smith attorneys secured a $200 million patent-infringement verdict against Microsoft on behalf of software maker i4i, attorneys for the national trial firm McKool Smith have won a $139 million patent-infringement verdict in the Eastern District of Texas. As reported by Bloomberg and others covering the trial of Versata Software Inc. vs. SAP AG, a jury in Marshall, Texas, awarded more than Versata sought at the outset of the trial. Jurors found that SAP infringed two Versata software product patents related to pricing technology - U.S. Patent Nos. 6,553,350 B2, issued in 2003, and 5,878,400, issued in 1999. The jury also rejected SAP's assertion that the patents were invalid.

Bloomberg reports that the Versata verdict is the fourth-largest patent jury verdict in the U.S. this year and represents the 11th-largest jury award overall for 2009. Meanwhile, McKool Smith's $200 million jury verdict on behalf of i4i against Microsoft was the third largest patent verdict and seventh largest overall verdict of 2009, according to Bloomberg. Last year, McKool Smith was responsible for more of the National Law Journal's Top 100 verdicts of of 2008 than any other firm in the country.


by Robert Tharp at 10:55:48 am

There's no shortage of horror stories about insurance companies that routinely refuse to pay businesses and individuals for legitimate losses. While some states are increasingly pursuing stiff penalties for insurance companies that operate in bad faith, The Lanier Law Firm is responding with the formation of a new Bad Faith Insurance Practice Group led by firm attorney Phillip Sanov of Houston. The Bad Faith Insurance Practice Group helps individuals and commercial property owners across the country in non-payment disputes with insurance carriers based on claims arising from storms, fires and other natural disasters.
"When you call Houston home, you become intimately familiar with the effects of natural disasters and the insurance mess often left in their wake," says Mark Lanier, founder of The Lanier Law Firm. "Our new practice group will work to help businesses and individuals get back on their feet after a disaster."
The firm has already helped thousands of individuals and businesses recover insurance reimbursements from Hurricane Ike, not to mention claims involving damage from earthquakes, mudslides, forest fires and other disasters.
"After paying premiums for years, you expect an insurance company to stand behind you when disaster strikes," says Mr. Sanov. "The sad truth is that most people and businesses I talk with have been wrongfully denied, unreasonably delayed or vastly underpaid for their insurance claims."
For more information, contact Johnny Cargill at 281.866.6886 or

by Robert Tharp at 4:05:51 pm

Business bankruptcies spiked 60 percent as of for the first six months of 2009, representing 30,333 business filings, according to the American Bankruptcy Institute. With that kind of carnage, even companies with strong balance sheets can't feeling the pinch when working with suppliers that may heading down the path toward bankruptcy or that have already sought court protection. "We're seeing this from worldwide industries like the auto manufacturing sector down to smaller, more contained industries," says Rhett Campbell, who leads Thompson & Knight's Corporate Reorganization and Creditors' Rights Practice. "It can be an enormous challenge to maintain business relationships with companies as they're trying to restructure, and that can really impact businesses all along the supply chain." To interview Mr. Campbell about commercial bankruptcy trends, contact Barry Pound at 800-559-4534 or


by Robert Tharp at 3:50:49 pm

The Justice Department's crackdown on Swiss bank accounts has been called the beginning of the end of super-secret offshore banks favored by the world's elite. Following a contentious eight-month legal battle between the U.S., Switzerland and UBS, the IRS will get access to 4,450 UBS Swiss bank accounts that represent an estimated $18 billion in untaxed savings. While that may be true, the tax crackdown doesn't just threaten the super rich, says  tax litigation attorney Charles Meadows of Meadows, Collier, Reed, Cousins & Blau. "People with $10,000 or more in a foreign account who fail to check the right boxes and don't file the proper disclosures are at risk," he says.

While the IRS has offered an amnesty period of sorts set to end Sept. 23, the voluntary disclosure period allows taxpayers a break from prosecution provided they agree to pay back taxes, interest and penalties. But not everyone's off the hook, particularly those already under investigation. "If they already have your name, you may be ineligible for the amnesty," Meadows says. "In these cases the IRS reserves the right to move forward with criminal prosecution." To interview Mr. Meadows, contact Scott Holcomb at 800-559-4534 or

by Robert Tharp at 4:07:17 pm

There's an unprecedented disciplinary hearing unfolding in San Antonio involving the chief ustice of the Texas Court of Appeals, Sharon Keller. You can read the blow-by-

blow coverage over at Texas Lawyer's Ex Parte blog. The New York Times even weighed in with an editorial today. Judge Keller is facing ethics charges from the State Commission on Judicial Conduct in connection with the events that occurred just hours before the execution of Michael Richard in Sept. 2007. The judge is accused of closing the courthouse doors promptly at 5 p.m., effectively blocking the filing of a late appeal by Richard's legal team. Needless to say, there's no shortage of strong feelings among observers on both sides regarding what should happen at the close of this hearing. Count Dallas litigator Dan Boyd among them.

Boyd, who is a frequently published and regular speaker on the topic of legal ethics, calls the judge's actions "inexcusable," but also notes "they are only the most notorious of a pattern of biased judicial conduct on her part." To interview Mr. Boyd about legal ethics, contact Rhonda Reddick at 800-559-4534 or

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