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Androvett Blog

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.
READ THE ENTIRE ARTICLE HERE
"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, Tagsellit.com, 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 cpsc.gov, which offers searches by product type, company name, or hazard, among other categories, or on recalls.gov, 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 barry@androvett.com.

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 rhonda@androvett.com.

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 barry@androvett.com.

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 alan@androvett.com.

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 rhonda@androvett.com.

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 jdc@lanierlawfirm.com.

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 barry@androvett.com

 

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 scott@androvett.com

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 Rhonda@androvett.com.

by Robert Tharp at 4:24:19 pm

More than two years after Jenkens & Gilchrist closed its doors as a law firm, attorneys from Sayles Werbner walked out of a Dallas courtroom with a multi-million breach of contract verdict on behalf of the firm. Attorney Mark Werbner successfully argued in trial that the now-closed firm is still entitled to revenue from a former client's patent licensing program. The breach of contract trial hinged on an agreement between Jenkens & Gilchrist and Forgent (now known as Asure Software Inc.) in which Forgent agreed to pay the firm a percentage of fees from a patent licensing program. When Jenkens & Gilchrist ceased operations two years ago, Forgent stopped paying the fees. "When you boil it down, this lawsuit was about Forgent's failure to keep a promise it made to the law firm," says Werbner.
Texas Lawyer's Ex Parte blog notes that the plaintiffs spurned three different settlement offers, the highest of which was $2.45 million, and proceeded to trial. The decision paid off with a jury award that(with prejudgment interest) was more than a million dollars more than the final settlement offer.

by Robert Tharp at 1:30:33 pm

As reported by the Seattle Times and many others today, not only has Microsoft Corp. failed to quash a $200 million patent-infringement verdict, but the award has since grown to $290 million and counting with enhanced damages. U.S. District Judge Leonard Davis also issued a permanent injunction banning Microsoft from selling Microsoft Word products that include the customized XML feature at the center of the dispute with Toronto-based technology provider and document management company i4i Inc.

The i4i verdict is just the latest in a stellar string of courtroom victories for McKool Smith. The i4i verdict is the seventh-largest jury verdict this year, and the third-largest patent verdict, according to Bloomberg data.

During the trial, attorneys from McKool Smith and Tyler, Texas-based Parker, Bunt & Ainsworth successfully argued that Microsoft infringed the i4i patent issued in 1998, U.S. Patent No. 5,787,499, which covers software designed to manipulate "document architecture and content." The software covered by the patent removed the need for individual, manually embedded command codes to control text formatting in electronic documents.

Judge Davis ruled that Microsoft should pay i4i an additional $40 million for its willful infringement of the i4i patent. Microsoft also was ordered to pay slightly more than $37 million in prejudgment interest, including an additional $21,102 per day until a final judgment is reached in the case. The court also ordered Microsoft to pay $144,060 per day until the date of final judgment for post-verdict damages. Today's permanent injunction prohibits Microsoft from selling or importing to the United States any Microsoft Word products that have the capability of opening .XML, .DOCX or DOCM files (XML files) containing custom XML. The court is requiring Microsoft to comply with the injunction within 60 days.

 

by Robert Tharp at 2:52:11 pm

School supplies, check. School uniforms, check. Credits to graduate?

As Texas families gather school supplies and gear for the rapidly approaching 2009-2010 year, the clock is ticking for school districts across the state to make a decision that could significantly affect the graduating class of 2010. At issue is a newly passed state law that allows districts to eliminate the previously mandated graduation requirements for health, computer skills and one of three P.E. semesters.

School districts were surprised to learn that the new requirements are effective for graduating seniors this year, and that potentially creates enormous curriculum and personnel changes with just weeks to go before the opening bell. School districts can opt out of the law and phase the requirements in over time, but such action requires explicit action by school districts in the coming weeks.

A recent Dallas Morning News story notes: The bill did not phase the changes in with incoming freshmen, as is generally the case when changes are made to graduation requirements. Instead, the Texas Education Agency informed districts July 3 that the changes were effective immediately and would apply to all students unless local districts explicitly decided not to implement them. That's putting school boards between parents and students, who want the new choices, and teachers and staffers, who say it's too late to make changes.

"Usually the state specifies a transition period, but in this case the changes can be effective immediately," says Bill Banowsky of Thompson & Knight, who is legal counsel for a number of districts. "We're still recommending that districts keep students on their current plans and phase in these requirements for next year, rather than attempt to hire new staff or make curriculum adjustments on the fly." To interview Mr. Banowsky, contact Barry Pound at 800-559-4534 or barry@androvett.com.

 

by Robert Tharp at 1:38:15 pm

One place I wouldn't want to be right now is idling in the ever-present traffic jam on a stretch of Interstate 35 under construction just north of Gainesville near the Oklahoma border. Authorities say traffic's been down to one lane for weeks because the contractor working on a bridge project is progressing at a snail's pace. It's become a deadly situation for motorists. Twice in the last month, tractor-trailer drivers have plowed into the queue of cars, resulting in five deaths.

On July 5, 13-year-old Casey Hinkle and his 63-year-old grandfather Gervious Dale Hinkle were killed when their Ford Explorer was struck from behind by a tractor-trailer owned by Tulsa, Okla.-based Refrigerated Delivery Services Inc. On August 3, three people died when an 18-wheeler plowed into stopped traffic along the same stretch of the Interstate.

Noted truck accident attorney Steve Laird of Fort Worth's The Law Offices of Steven C. Laird has filed a wrongful death lawsuit filed against the Texas Department of Transportation (TXDOT) and other defendants on behalf of the Melissa Hinkle, who was injured in the July 5 wreck that killed her son and father. A Texas state trooper told reporters that Mr. Crume failed to control the truck's speed before crashing into the Hinkle's vehicle and several others.

"Ms. Hinkle is filing this lawsuit with the hope that it will bring change and prevent something like this tragedy from happening to another family," says Mr. Laird. "Every defendant in this case had a hand in these unnecessary deaths, and we intend to make sure they are held accountable. This has to stop before more innocent people are killed."

This latest case was filed in Cooke County's 235th District Court in Gainesville the morning of Aug. 6 as Melissa J. Hinkle, et al. v. Randy Crume, et al., No. 09-00364. Mr. Laird has requested a jury trial to determine the defendants' liability. For more information on the lawsuit, please contact Bruce Vincent at 214-559-4630 or bruce@androvett.com.

by Robert Tharp at 3:25:45 pm

Compared to Bernie Madoff's spectacular collapse, the recent implosion of Dallas-based Provident Royalties, LLC, may not seem that sexy. Try telling that to the more than 7,000 investors who ponied up $485 million for what the SEC now calls a classic Ponzi scheme. There's so much of this stuff going on lately that a new word has been coined: ponzimonium.

According to the SEC, Provident Royalties and its three principals, Paul "Russ" Melbye, Brendan Coughlin and Henry Harrison, misled investors about what they were buying and promised annual returns of up to 18 percent from investments in oil and gas, real estate, leases, and mineral rights. The company raised $485 million between September 2006 and January 2009, but investigators say most of the money was used to pay promised returns to earlier investors.

Victims of the scheme have retained the New York Law firm of Zwerling, Schachter & Zwerling, LLP, to pursue potential claims of securities fraud. The firm will be investigating the actions of Provident Royalties, its principals and related companies, including Provident Asset Management, LLC., Provident Energy, LP, and Shale Royalties, Inc.

"When oil and gas prices were riding high, everyone wanted to get in," says Jeffrey Zwerling, a founding partner of Zwerling, Schachter & Zwerling. "But when prices nosedived, investors disappeared. That meant there was no new money to pay investor returns or return principal to people who wanted to get out. That's when a scheme such as this comes apart."

Provident has officially gone belly-up, filing Chapter 11 bankruptcy shortly before the SEC's action in early July. For more information, please contact Mark Annick at 800-559-4534, 214-213-1754 or mark@androvett.com, or Shaye Fuchs at 1-800-721-3900 or SFuchs@zsz.com.  

by Robert Tharp at 2:07:45 pm

Facebook's usage numbers are just staggering: more than 250 million registered users are spending more than 5 billion minutes on the social networking site every single day(5 billion minutes works out to 9.5 years of time, according to this time conversion calculator). 

Businesses are learning the hard way that there's a fine line to walk regarding whether to allow workers to log onto their personal Facebook pages(and other social media networks) during the work day, says Anthony Campiti of Thompson & Knight. Many employers have implemented or are considering outright bans out of concern about productivity and concerns about confidential information and legal exposure. 

Campiti says such a response may be justified for some companies, but a measured, consistent approach is perhaps the best strategy for most. "Many employers are deciding against across-the-board bans because of the negative impact on recruiting and retention, and the potential benefits in using the sites to network and build business." Campiti says companies should enforce any existing reasonable-use provisions and develop specific policies for social networking. "As long as employers apply and enforce these policies consistently, they should be OK legally." To interview Mr. Campiti, contact Barry Pound at 800-559-4534 or barry@androvett.com.

by Robert Tharp at 1:22:23 pm

We receive lots of media requests here at Androvett Legal Media, many of which are spot-on relevant to our growing stable of expert legal clients. As former journalists ourselves, perhaps nothing pleases us more than helping a reporter on a deadine find the perfect source to flesh out a story. But you never know what's going to cross the transom on any given day. This one from just a few minutes ago deserves a special award.


[Publication deleted] magazine wishes to find out if it would be possible for a human being to survive inside a whale for a significant amount of time. I'm a freelancer. Contact: [name deleted], at [e-mail address deleted]


So there you go. Wanna talk about criminal defense? Estoppel? ERISA? Probate law? Executive compsensation? Mergers & acquisitions? We'll set you up. Shoot, even maritime law. Wanna know how long you might survive in the body of a whale? We'll work on it. Seems like someone's written about this before, though.

by Robert Tharp at 4:37:26 pm

Fashion sense and modesty can absolutely go out the window as the mercury rises. Workers will wear anything -- or practically nothing at all -- in a futile attempt to beat the heat. But scantily clad workers in a professional setting can create real dilemmas for employers, says labor and employment attorney Audrey Mross of Dallas-based Munck Carter. "A coworker who is revealing a little too much can make colleagues uncomfortable or, intentionally or unintentionally, attract attention that forms the basis of a harassment claim," Mross says. "Supervisors are often loathe to confront the situation since it can come off as an attack on personal taste or style. That's where the value of a consistent, basic dress code comes in." To interview Ms. Mross about workplace matters, contact Robert Tharp at 800-559-4534 or robert@androvett.com.

by Robert Tharp at 4:11:32 pm

When an Uptown construction worker fell 23 stories to his death Thursday, the tragedy put a face on an alarming Texas trend that has already caught OSHA's attention. Following a dramatic spike in worker deaths in Texas, OSHA is bringing more inspectors to Texas and has begun performing unannounced site inspections. Dallas attorney Jeff Rasansky of the Rasansky Law Firm says the action is greatly overdue. "The latest figures show that more than 140 construction workers died in 2007, up nearly a third over the previous few years," says Rasansky, who represents people hurt on the job. OSHA has indicated it will conduct unannounced inspections at Texas construction sites through August. "With the current economic conditions, some companies are tempted to cut corners on safety to save a few pennies. Knowing that the government could show up at any time should help business owners do the right thing in looking out for their employees." To interview Mr. Rasansky about workplace safety issues, contact Bruce Vincent at 800-559-4534 or bruce@androvett.com.

by Robert Tharp at 4:35:29 pm

You might pity the plight of Michael Jackson's personal physician, Conrad Murray. There he was in the weeks after the King of Pop's death, dutifully making himself available to investigators and answering questions. Then all of a sudden, the po-po with whom he thought he was cooperating come barging in with a search warrant.

But noted Houston criminal defense attorney Dan Cogdell says that's not an unusual experience for folks who are at the center of criminal probes. "Often, ‘people of interest' feel that cooperating with investigators will prevent a raid, but that is simply not the case," says Cogdell, who has represented numerous high-profile clients subjected to similar searches. "Law enforcement agencies don't have to tell you in advance what they are going to do, and can basically lie to you about their intentions in many cases. People often find out that while they are operating in good faith, that isn't always reciprocal." To interview Mr. Cogdell about high-profile criminal cases, contact Alan Bentrup at 800-559-4534 or alan@androvett.com.

by Robert Tharp at 2:42:10 pm

More than two years have passed since a Dallas jury ordered a Dallas-based physicians' group to pay local doctor Neal Fisher $6.3 million for defamation and breach of contract. The big jury award was in appellate limbo until June 25, when an appellate court finally affirmed the judgment in Fisher's favor.

Dr. Fisher was a member and "shareholder" in Pinnacle Anesthesia Consultants, P.A., a firm that provided obstetric anesthesiology services to Presbyterian Hospital. Things started to go bad for Dr. Fisher after he questioned the firm's billing practices and raised concerns that while the firm advertised as being "in-network" for all major health care plans, it allegedly had a business model of intentionally being "out-of-network" for its services. Pinnacle responded by accusing Dr. Fisher of abusing alcohol and drugs and made false accusations about the doctor's administrative and medical abilities. Pinnacle then fired him from the practice.

His personal and professional reputation at stake, Dr. Fisher voluntarily submitted to drug and alcohol testing of samples of his blood and hair through Presbyterian Hospital's own Impaired Physician Program. Though Dr. Fisher passed each test, Pinnacle neither apologized nor offered him his job back. The suit alleged that his lost job and damage to his reputation cost him millions in lost income.

"For the appellate court to rule in his favor on every single issue makes a statement about this case and about the jury's verdict," says attorney Mike Richardson of Rose•Walker, who represented Dr. Fisher at trial. With post-judgment interest, the amount of the judgment is now in excess of $10 million.

 

by Robert Tharp at 4:11:10 pm

With a sprawling southern neighbor like Mexico, it's easy to forget about the smaller Central American countries that also have interrelated economies. Consider the sudden political shakeup in Honduras. Dallas attorney Trey Branham says few in the U.S. grasp the degree of bilateral trade that occurs between Honduras and the U.S. - more than $7 billion at last count, or that the lush, relatively small country is a significant U.S. tourist destination with more than 100 cruise ship landings a year. Branham, who has interests in Honduras, says a stable government is vital for Honduras' economy and for a continued healthy economic relationship with the U.S. "It's pretty simple; stability in the government there is good for business here," Branham says. "And it's good for the people of Honduras as well. It's in both our interests to do whatever possible to help resolve this situation quickly." To interview Mr. Branham, contact Mark Annick at 800-559-4534 or mark@androvett.com.

by Robert Tharp at 5:04:25 pm

The Supreme Court's landmark Ricci v. DeStefano ruling appears to have provided some much-needed clarity for hiring and promoting within businesses. The Court ruled in favor of white New Haven, Conn., firefighters who had challenged the city's decision to reject the results of a promotion exam after no African-Americans scored well enough to advance. The Supreme Court's 5-4 ruling found that such unbiased tests are valid for making employment decisions. Labor and employment attorney Mark Shank of Gruber Hurst Johansen & Hail predicts the ruling will lead to an increased use of such exams in the business world.

The ruling centers on theTitle VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, religion, sex or national origin. The marority also ruled that the city had failed to demonstrate its primary argument for invalidating the test — that certifying the results would result in unintentional injury to minority firefighters. "This ruling removes a level of risk for companies and public agencies that use standardized tests in performance evaluations or hiring practices, and will likely reduce litigation for employers that stay within the opinion's boundaries," says Shank.

Justice Anthony Kennedy wrote in the majority opinion: "Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions." Meanwhile, writing in dissent, Justice Ruth Bader Ginsburg said the white firefighters "understandably attract this court's sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them." To interview Mr. Shank on employment matters, contact Barry Pound at 800-559-4534 or barry@androvett.com.

by Robert Tharp at 4:32:24 pm

History has proven that industry leaders often emerge during tough economic times. Regarding the legal biz in 2009, one of those appears to be McKool Smith. The growing firm's latest coup: selection as one of 20 firms across the U.S. highlighted in The National Law Journal's first-ever "Midsize Hot List."

In selecting McKool Smith, NLJ editors noted the firm's successful expansion into Washington, D.C., and New York City during the past two years, as well as several high-profile lateral attorneys in core practice areas of commercial litigation, white collar litigation and intellectual property litigation.

Noting that midsize firms "have proven more agile than their bigger competitors," the NLJ staff also highlighted the firm's incredible trial performance last year, earning four of the Top 100 verdicts of 2008, more than any law firm of any size in the nation. The publication also details McKool Smith is on the forefront of meeting client demands by offering cutting-edge alternate billing arrangements and fee structures that do not rely on hourly billing.

 

by Robert Tharp at 3:26:49 pm

With credit markets in deep freeze, lots of businesses out there are desperately seeking investors. And when a company's viability is hanging in the balance, it becomes harder and harder to look the gift horse in the mouth and ask the tough questions of a potential white knight. But such due diligence of investors is more important than ever, says attorney Cliff Risman of Gardere Wynne Sewell LLP. Risman notes that potential investors should be vetted by the State Department, Treasury Department and other governmental agencies, as well as through private investigation agencies. "Due diligence is critical, and this goes far beyond traditional reviews of business and financial fitness," he says. "Regardless of the domicile or nationality of the investor, care must be taken to be sure the funds are not the proceeds of some form of illegal enterprise and that the investor is not on any of the various terrorism or other watch lists." To interview Mr. Risman, contact Rhonda Reddick at 800-559-4534 or rhonda@androvett.com.

by Robert Tharp at 4:17:30 pm

It's now the U.S. Senate's turn to debate proposed climate change legislation, and amid all the talk about smart grids and wind and solar energy, it's easy to forget about the small, but increasing role being played by natural gas-powered vehicles. Many public and private entities are already taking advantage of existing federal incentives that encourage the use of natural gas-powered vehicles, and attorney Scott Deatherage of Dallas' Thompson & Knight says that the proposed legislation will likely contain provisions promoting the relatively clean fuel source. "The final Senate bill will likely echo the House version in extending tax and fuel credits for the use of natural gas into the next decade," he says. "Regardless of what happens legislatively, there is a plentiful domestic supply and a growing market for natural gas as a vehicle fuel, particularly for large fleet operators." Deatherage notes that AT&T recently committed $350 million to buy natural gas vehicles, and more and more entrepreneurs are looking into independent fueling stations to sell liquid or compressed forms of natural gas. To interview Mr. Deatherage, contact Barry Pound at 800-559-4534 or barry@androvett.com.

by Robert Tharp at 11:19:41 am

Probate lawyers Steve Spitzer, Scott Meyer and Glenda Brewer over at  Cowles & Thompson's blog, Texas Probate & Estate Disputes, have plenty to say about the ins and outs of probate and estate law. According to their latest post, Michael Jackson's estate squabble provides some learning opportunities for all of us, namely you never know when it's your turn to perform that big moonwalk in the sky, so it's smart to have a thorough and up-to-date estate plan in place.

They write:

You will need to have a complete and current written will that addresses all of the relevant issues that may arise upon death. The two biggest legal issues so far regarding Mr. Jackson's death are 1) who will be in charge of the estate (who will serve as executor) and 2) who will be in charge of his minor children (who will be the guardian).

Mr. Jackson's will apparently names two people to serve as co executors of his estate(those two are two of Mr. Jackson's attorneys, and neither of them are members of his family). Mr. Jackson's mother, who was not one of the two people named, applied to the court to be named executor. Her request was denied by the court, which is not a surprise. Normally, the executor named in the will by the deceased will be appointed by the court unless the executor is disqualified for some reason (usually conviction of a crime, mental incapacity, or the like). The fact that someone else might be a closer relative to the deceased or that someone else might be a better business manager than the person chosen is not usually relevant. As long as the person chosen meets the basic and minimal qualifications, the courts will usually honor the choice made by the deceased person as expressed in their will.

The guardianship for the children issue is more clouded because Mr. Jackson had three children by two different women. The mother of the two older children has expressed a desire to have guardianship custody of those two children. As the biological mother, she has rights as a parent, just as Mr. Jackson had parental rights while he was alive. For the time being, Mr. Jackson's mother (the grandmother of the children) has been appointed temporary guardian.

In the short run, the courts usually look to try to provide as much stability as possible for the children, as they have obviously been traumatized enough by their father's unexpected death. The grandmother seems more involved in their lives on a regular basis and is in the best position to provide interim stability. In the longer run, the courts may not view the 79 year old grandmother as the best option, and the biological mother of the children could well be given expanded rights, if not full custody.

Mr. Jackson's will made designated his mother as the guardian, with Diana Ross as an alternate in the event that his mother is unable to serve. It will be interesting to see what rights the court may grant to the biological mother as the case proceeds.

It is important that parents of children under the age of 18 include such provisions in their will so that their wishes can be made known and taken into consideration after death.

by Robert Tharp at 10:23:36 am

When Rice University freshman football standout Dale Lloyd collapsed during a workout three years ago, his death was tragic for the many touched by his life and a wakeup call for the NCAA's oversight of young athletes. Mr. Lloyd's family turned to The Lanier Law Firm to find answers. Firm founder Mark Lanier and firm partner Gene Egdorf have negotiated an important settlement to the wrongful death litigation that takes significant steps to prevent such tragedies from happening again in college sports programs.

Medical examiners concluded that sickle cell disease was a factor in Mr. Lloyd's death. Neither Mr. Lloyd nor his family were aware that Mr. Lloyd carried the sickle cell trait, and the NCAA did not require screening for sickle cell disease even though the sickle cell trait had been linked to other student athlete deaths. As a result of the litigation and settlement, the NCAA will recommend that university athletic departments test all athletes for the sickle cell trait. The Lloyd family has sought such a commitment form the NCAA to protect future student athletes. The sickle cell trait appears in approximately 8-9% of the African-American population, and is found less commonly in all races.

"This settlement is the first step in preventing tragic deaths like Dale's from ever happening again," says Mr. Lanier. "The Lloyd family is pleased that the NCAA stepped up and settled this matter in a way that honors their son's memory and also funds research that will save lives."

The NCAA also will insert a "Point of Emphasis" regarding sickle cell testing in its Football Rulebook in conjunction with a press conference scheduled for August. Additionally, the NCAA will instruct coaches, athletic trainers and student athletes about the dangers of the sickle cell trait, and provide a $50,000 donation to the Sickle Cell Disease Association of America and a $10,000 donation to the Dale R. Lloyd II Scholarship Fund. Mr. Lanier also will be contributing $20,000 to the scholarship fund in recognition of the Lloyd family. The Houston Press touched on the impact that Lloyd, a Lamar High School grad, had on so many:

It's difficult to overstate how well-liked Lloyd was among his peers. His death hit Lamar especially hard; he'd been a football star who was friendly to everyone, and got the grades necessary to get into Rice. "From the beginning of this case, our goal was to have the NCAA recommend and implement a testing program to prevent further deaths related to the sickle cell trait," said Gene Egdorf, the lead attorney on the case.

by Robert Tharp at 11:53:10 am

Retail electricity and gas provider Stream Gas & Electric has grown like crazy in the last three years with an intoxicating message. With a business model that offers individuals a path to personal wealth by schlepping electrical service to friends and neighbors, it has become the 29th largest private company in Dallas/Fort Worth,

But some are starting to question whether Stream's business plan amounts to a multilevel marketing pyramid scheme, which is an illegal and non-sustainable business model that involves the exchange of money primarily for enrolling other people into the scheme, often without any product or service being delivered. Attorney's from Houston's The Clearman Law Firm have filed a federal class action lawsuit under the Racketeer Influenced Corrupt Organizations(RICO) Act against the Dallas-based company.

Clearman attorneys allege that Stream and its marketing arm, Ignite, induced the plaintiffs and others to invest in the "Ignite Services Program" at a cost of $329 and purchase an "Ignite Homesite" web page for a charge of $29 per month. The lawsuit claims that a large portion of the $329 is paid to those higher in the pyramid. "Some of the individuals at the top of the Stream and Ignite pyramid earn millions of dollar a year, while most of those that are now joining the scheme will likely never recover their investment," says Scott Clearman of The Clearman Law Firm, lead counsel for the plaintiffs. "Stream promises recruits that they can make vast sums of money, but the fact is that most will lose their money."

A copy of the lawsuit and more information about The Clearman Law Firm is available at http://www.clearmanlaw.com. For more information or to schedule an interview with Mr. Clearman, please contact Barry Pound at 800-559-4534 or barry@androvett.com.

by Robert Tharp at 4:32:04 pm

Looks like we'll never know exactly what caused Air France 447 to go down into the Atlantic Ocean earlier this month now that key data stored in the plane's "black box" is buried with the wreckage at sea. Attorney and pilot Marty Rose of Dallas' Rose•Walker law firm says the loss of the crucial flight data didn't have to occur. In fact, modern aircraft like the Airbus A330 that was involved in this crash are technologically able to transmit this flight data real-time so there's no need to rely on an investigator's ability to recover the black boxes from a crash.

"So how is it that manufacturers and airlines can collect that data, but not information from the black boxes?" Rose asks. "It's simple. They're not required to do so. Neither the FAA, NTSB, nor their equivalents in other countries require the airlines to install real-time data transmission devices which would make the black boxes unnecessary and antiquated." To interview Mr. Rose, contact Mark Annick at 800-559-4534 or mark@androvett.com.

 

by Robert Tharp at 3:41:38 pm

For even the most on-the-ball parents, the search for a good daycare provider is at best an emotionally charged exercise. At worst, it's an exasperating test in faith to place loved ones in the hands of a poorly regulated and inconsistent world of daycare. With news accounts of children injured or abused at the hands of caregivers occurring on practically a daily basis, consumer attorney  Jeff Rasansky has published an important guide to identifying and preventing daycare abuses.

"Preventing, Discovering and Acting on Claims of Daycare and Childcare Abuse" is available to download at www.daycareabusebook.com, the guide outlines rules, regulations and best practices regarding daycare safety, explaining what to look for when choosing a daycare, how to spot warning signs and what to do when abuse is suspected. "Our hope is that this book will give parents the tools to help protect the most vulnerable members of their families," Mr. Rasansky says. To interview Mr. Rasansky about daycare abuse, contact Bruce Vincent at 800-559-4534 or bruce@androvett.com.

 

 

by Robert Tharp at 11:50:45 am

Jon and Kate Gosselin's car crash of a relationship could not have been scripted any better/worse for reality TV fodder. Now that the couple are divorcing and their wildly successful cable show, Jon & Kate Plus 8, is on hiatus, a family court will have to do something these two adults have so far been incapable of...consider what's best for their eight young children. Family law attorney Carmen Eiker, a Dallas partner in McCurley Orsinger McCurley Nelson & Downing, says the court has much to consider in this case, but the process is essentially the same for any family in Texas.

"There are myriad considerations for the court in regard to the couple's children, from custody to the protection of their earnings," says Eiker. "In Texas, the court could require an attorney be appointed to represent each child individually to ensure their unique interests are considered and protected." To interview Ms. Eiker, contact Bruce Vincent at 800-559-4534 or bruce@androvett.com.

 

by Robert Tharp at 4:20:07 pm

U.S. farmers and ranchers stand to reap a new bounty for their toils. Compromise climate change legislation recently passed by the U.S. House creates a new market opportunity for farmers and ranchers to become important players in proposed cap-and-trade greenhouse gas reduction plans.

Under the compromise, environmental attorney Scott Deatherage of Thompson & Knight's Dallas office says famers and ranchers would be exempt from the bill's greenhouse gas emission reduction requirements, which means that farmers, ranchers and forestland owners would not be subject to any caps on greenhouse gas emissions. Additionally, farmers ranchers and forestland owners would be encouraged to reduce greenhouse gas emissions and sequester carbon from their operations. With offests earned from these actions, they could get into the business of selling credits to utilities, refiners, or other firms that operate under the new greenhouse gas limitations. All of this hinges on whether the bill can make it through the U.S. Senate unscathed.

Environmental attorney Dallas' Richard O. Faulk, head of the Environmental Practice Group at Gardere Wynne Sewell,says the compromise is a major victory for agribusiness, as well as rural America. "Far too many U.S. Legislators seemed to have lost sight of the impact their decisions could have," says Faulk. "These agribusinesses, and the areas that support them, often walk a very narrow line between profit and loss." Even with the compromise, Faulk still sees the legislation as problematic. "Perhaps now the headlong rush to regulate America's farmers and ranchers can take a more measured pace. The number of family farms has declined precipitously since the 1930s. There are so many other problems with this bill that it would have been tragic if this ill-conceived piece of legislation had hastened that decline." To interview Mr. Deatherage or Mr. Faulk, contact Rhonda Reddick(rhonda@androvett.com) or Barry Pound(barry@androvett.com) at 800-559-4534. 

by Robert Tharp at 1:35:02 pm

We couldn't help noticing Erin Nealy Cox's inclusion on the Dallas Business Journal's "40 Under 40" list of the city's top young business minds this year. Erin, managing partner and deputy general counsel for the global digital forensics firm Stroz Friedberg, has packed an incredible amount of accomplishments into her career, and she's not even 40 yet.


A former federal prosecutor, Ms. Nealy Cox previously served as the Computer Hacking and Intellectual Property Coordinator for the U.S. Attorney's Office for the Northern District of Texas - Dallas Division. She led major cyber-crime prosecutions across the United States, including the first-ever federal prosecution of a rogue Internet pharmacy operation, and also handled numerous complex white-collar fraud, public corruption, intellectual property theft and child-exploitation cases. During her Department of Justice career, Ms. Cox also served as chief of staff and senior counsel for the Office of Legal Policy at Main Justice in Washington, D.C. Erin now leads the high-tech computer forensics lab and Dallas offices of Stroz Friedberg, a global leader in cutting-edge digital and traditional investigations. At Stroz Friedber, she helps clients in matters ranging from theft of intellectual property to lost laptops, click fraud to online review, load files to leaked confidential information, internal corporate data wiretapping to white collar defense investigations, database forensics to corporate hacking incidents, cyber-extortions to fabricated e-mails — and all other matters, digital and investigatory.


by Robert Tharp at 1:50:43 pm

Add our revered halls of justice to the growing list of U.S. institutions on a crash course with the wide-open information frontier made possible by the Internet and social

media networks like Facebook and Twitter. Technology lawyer Tom Melsheimer of Fish & Richardson's Dallas office and State District Judge Craig Smith describe the phenomenon in a recent Houston Chronicle op-ed piece detailing how the unprecedented access to information and the format's two-way communication platform are proving irresistible to jurors in cases across the country.

Melsheimer and Smith write:
Web-savvy jurors these days encounter a court system that by necessity still operates in essentially the same manner as it has for generations. In a world of lightning speed exchanges of electronic information, our courts continue to rely on hard copy documents and judges who must serve as heavy handed gatekeepers of information. Lowly jurors accustomed to instant gratification and a two-way information exchange increasingly find themselves in an unfamiliar and uncomfortably passive role.
Simultaneously, as Americans use social media to provide a now-ubiquitous "what are you doing?" running daily dialogue via Facebook and Twitter, a stint on jury duty is proving irresistible fodder. Never mind that our justice system hinges on a sacred premise that jurors start a case with an unprejudiced, blank slate and promise to consider only the information and evidence presented in trial.
Some might see this latest challenge as more fodder for the argument that juries are an outmoded and unintelligent way of resolving disputes. We have seen this sort of debate before. Others might say that we should just relax and assume that jurors will follow the instructions that they are given.
We think that neither approach is sensible. Instead, judges must take an intelligent, active approach to instructing jurors about the Internet, keeping in mind the temptations of the modern Internet-savvy juror. They must allow, even encourage, lawyers to ask questions about potential jurors' use of the Internet, including participation in networking sites like Facebook and Twitter.
Simply reminding each juror, "don't discuss the case," just won't get the job done anymore, if it ever did. These instructions can't wait until a jury is sworn in but should begin when potential jurors first enter the system and receive their briefing in the central jury rooms. Otherwise, the judicial system will find itself meting out justice, not via the common sense of citizens, but via tweets, text messages and blog postings. OMG.
Read the entire commentary here.

To interview Mr. Melsheimer, contact Bruce Vincent at 800-559-4534 or bruce@androvett.com

by Robert Tharp at 1:39:33 pm

You don't need an exhaustive academic study to establish that driving a car while sending a text message is not a smart idea. Still, one recent study found that young drivers far more likely to get in wrecks and even run over pedestrians while texting, while another revealed that 83 percent of Americans think it's not a bad idea

 

and should be banned. Meanwhile, one in four drivers admit to doing it from time to time.

Reports the Christian Science Monitor: But it’s no joke. And the bigger the vehicle you're driving, the greater the danger. Just ask the people who were on the Boston Green Line trolley that smashed into the back of another one recently. At the time of the accident, the driver was texting his girlfriend, he admitted. Dozens were injured, the driver lost his job, and the MBTA said it would ban on-the-job cellphone use and fire anyone caught using a cellphone, pager, or similar device during working hours.

But at least no one was killed in that accident. The same is not true of the horrific accident last September in California when, it is speculated, a train operator may have missed a stop signal because he was texting shortly before the accident.

Last year, Mark Melrose of Mountainside Hospital in Montclair, N.J., a spokesman for the American College of Emergency Physicians, told USA Today that most people probably don’t initiate text messages while driving, but find it hard not to respond if they receive one.

From the urban dictionary courtesy of the Monitor: "Text-end: When a text-messaging-distracted driver rear-ends the vehicle in front of [him]...."  

While there is little dispute whether drivers should be texting or not, Dallas attorney Brian Bolton says legislation is not the answer to this problem and won't make streets any safer. The problem is enforceability and practicality. "We're seeing that statewide bans of text messaging are no more successful in eliminating bad behavior than other laws regulating speeding, seat belts or mandatory insurance," Bolton says. "Unless police see a driver actively text messaging, this kind of choice is almost impossible to enforce." Bolton points out that there is little sentiment to create laws that regulate other actions - from eating to putting on make-up - that can cause driver distraction. "Public awareness and common sense are likely going to be more effective than broad-based bans." To interview Mr. Bolton, contact Barry Pound at 800-559-4534 or barry@androvett.com.   

by Robert Tharp at 4:58:50 pm

Some defense attorneys no doubt shudder at the idea of walking into a Port Gibson, Miss., courtroom representing a client accused of exposing a plaintiff to silica. Afterall, the American Tort Reform Association has twice included the 22nd Circuit as among the nation's "judicial hell holes" based on its perceived plaintiff-friendly
record.

Attorneys for the Jackson, Miss.-based civil trial law firm of Forman Perry Watkins Krutz & Tardy LLP made a significant ripple last week with what courthouse insiders described as the first take-nothing defense victory in such a case in memory. The lawsuit involved a 73-year-old man who asked jurors for $4.5 million in damages, charging that his lung disease was caused by products made by three companies between 1964 and 1995.

One key to the case's outcome: attorneys made brilliant use of a database developed by the firm that tracks area residents who have filed similar silica-exposure claims. Writes The AmLaw Litigation Daily:

What was the secret to the victory? It might have had something to do with a database of mass tort plaintiffs maintained by Kurtz's firm. During jury selection, Judge Lamar Pickard allowed Kurtz access to the last four digits of potential jurors' social security numbers to see if they or their family members had filed claims similar to Westrope's. The database identified four members of the jury pool (none of whom had mentioned their claims on a jury questionnaire). Kurtz was able to argue against putting them on the jury. "If we didn't have the database . . . we would have had four in the jury pool who could have been on the jury in this case," Kurtz told the Clarion Ledger.

The Forman Perry defense team representing Clemco and Precision was led by name partner Fred Krutz, along with partner Edwin S. "Win" Gault Jr., and associate Jennifer Jones Skipper. Lone Star was represented by David Barfield and Kimberly Mangum of Madison, Miss.-based Barfield & Associates. The firm represented represented Washington, Mo.-based Clemco Industries Corp. the world's largest manufacturer of air-powered blast cleaning equipment, and Little Rock, Ark.-based Precision Packaging, a packaging services company.

by Robert Tharp at 2:27:52 pm

Few presidential duties generate the kind of passionate interest as the task of filling a vacancy on the United States Supreme Court. Such scrutiny is not surprising,

says attorney Jeffrey Levinger, co-founder of Dallas-based appellate firm Hankinson Levinger LLP, considering the kind of influence that justices wield and that they typically serve far beyond the nominating president's term. In the case of President Barack Obama's nomination today of Sonia Sotomayor, the scrutiny has been kicked up a notch for a number of reasons. For one, the opportunity arose so soon in Obama's tenure, at a time when analysts are still actively rating the new president's job performance. Add to that the president's background as a law school professor and his choice of words leading up to the nomination - the president spoke of seeking out a nominee with "empathy," which many viewed as an indication that his search would extend beyond the traditional short list of legal minds.

"These nominations are always very high-profile, mainly because the tenure of a justice lasts so much longer than the term of the president," Levinger says. "Being President Obama's first, it's watched even more carefully."

Levinger notes that Sotomayor's nomination is shrewd in that she has a proven track record, an inspiring personal background and has already been nominated by President George H.W. Bush and President Bill Clinton for lower court positions. "Judge Sotomayor's nomination is a relatively safe thing to do because she has a proven track record," Levinger says. "I believe if this nomination is successful, then the next one may be a little more non-traditional...I'm pretty confident that she's going to be confirmed. She's already run the gauntlet twice."  To speak with Jeffrey Levinger, please contact Robert Tharp at 800-559-4534 or Robert@androvett.com.

by Robert Tharp at 10:18:59 am

It's been a tough stretch lately for Microsoft in patent litigation. Most recently, an east Texas jury ruled yesterday that Microsoft had willfully infringed on a patent used for important
features of Microsoft Word 2003 and 2007, in the process awarding $200 million to Canadian software maker i4i. As The Wall Street Journal's tech industry blogger John Paczkowski and others point out, the verdict is the second-largest to date in 2009, and Microsoft also is on the hook for the year's top IP infringement verdict - a $388 million award to Uniloc relating to security technology.

Meanwhile, McKool Smith the Dallas-based firm that represented i4i and secured yesterday's stunning victory continues its head-turning winning streak. Just last month, the firm was part of a legal team that obtained a $19 million patent infringement verdict against Apple Inc. relating to rights to technology owned by Palo Alto, Calif.-based Opti Inc. for technology found in Apple hard drives and iPods. A few weeks before that, attorneys in the firm's New York office obtained an important 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 firm already enjoys the distinction of having more National Law Journal Top 100 verdicts for 2008 than any other firm in the country.

 

by Robert Tharp at 2:49:14 pm

The latest sign of increasing instability in Venezuela occurred earlier this month when President Hugo Chavez ordered soldiers to seize dozens of assets from foreign oil
contractors. These expropriations come as Chavez grapples with mounting debt and declining oil revenue(which accounts for more than 90 percent of the country's export revenue).
Andrew Derman, leader of the international energy practice group at Dallas' Thompson & Knight, says that while Chavez has the right expropriate such property, there is also an obligation on his government's part to pay fair market value for the seized equipment and assets.  "These most recent seizures will result in arbitrations that Venezuela will lose," Derman says. "This move underscores Chavez's desperation in trying to sustain oil production and revenue as the nation slides into a recession." Chances are slim that Venezuala will prevail in international courts, Derman says, adding: "As a consequence, Venezuela and those countries following Venezuela will begin thinking twice before expropriating property." To interview Mr. Derman on international energy issues, contact Barry Pound at 800-559-4534 or barry@androvett.com.

 

by Robert Tharp at 1:17:44 pm

Burned by the Madoff and Stanford Financial scandals, all signs point to the Securities and Exchange Commission taking a greater interest in investigating and prosecuting financial matters that until now barely made a blip on the SEC's radar. Get ready for increased scrutiny of credit default swaps and hedge funds, says
Dallas criminal defense attorney and former SEC prosecutor John Teakell. "Clearly, the SEC has been stung by the criticism that it was asleep at the wheel while all of this was going on," Teakell says. "And now you're bound to see a slew of new investigations as it tries to demonstrate to Congress and the White House that it can do its job. That means that people setting up and running hedge funds and marketing these derivatives had better be very, very careful." As Bloomberg reports, new SEC investigations have surged 32 percent since the end of January after Chairman Mary Schapiro took the agency’s helm, and the agency also has gone to court almost four times as often to seek emergency orders to halt misconduct compared with a year earlier. To interview Mr. Teakell about SEC investigations, contact Mark Annick at 800-559-4534 or mark@androvett.com.


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