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Androvett Blog

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.

by Robert Tharp at 9:54:36 am

Antitrust attorney Gregory Huffman says administration's position borne out of Great Depression post mortem
Last week's message from the Justice Department's antitrust chief Christine A. Varney regarding antitrust enforcement was

crystal clear: expect to see more Justice Department vigilance of big business, particularly in the areas of technology, energy, health care and telecommunications companies.
As reported by the New York Times and others: Ms. Varney blamed the Bush administration for antitrust policies that "lost sight of an ultimate goal of antitrust laws - the protection of consumer welfare" and "allowing all but the most bold and predatory conduct to go unpunished and undeterred."
Ms. Varney indicated that the administration is rejecting the impulse to go easy on antitrust enforcement during weak economic times. "We must change course and take a new tack," she said, adding, "Vigorous antitrust enforcement must play a significant role in the government's response to economic crises to ensure that markets remain competitive."
Antitrust attorney Gregory Huffman of Dallas' Thompson & Knight says the administration's position is likely borne out of history, particularly the government's soft-handed approach during that Great Depression that is widely believed to have prolonged that economic downturn.  "Some might argue right now that preserving jobs at large companies is more important than challenging the companies in court," Huffman says. "However, research shows that attempts in the 1930s to preserve employment by cutting back on antitrust enforcement actually extended the Great Depression by up to seven years." Huffman notes that Council of Economic Advisors chair Christina Romer and Federal Reserve chairman Ben Bernanke are both students of New Deal policies. "Given their backgrounds and positions, the shift toward restored antitrust scrutiny was almost inevitable." To interview Mr. Huffman on antitrust matters, contact Barry Pound at 800-559-4534 or barry@androvett.com.

by Robert Tharp at 4:36:38 pm

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

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

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

by Robert Tharp at 1:26:41 pm

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

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

by Robert Tharp at 4:09:37 pm

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

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

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

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

by Robert Tharp at 11:05:58 am

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

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

by Robert Tharp at 4:30:44 pm

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

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

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

by Robert Tharp at 2:20:12 pm

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

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

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

by Robert Tharp at 1:37:11 pm

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

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

by Robert Tharp at 11:30:18 am

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

by Robert Tharp at 4:59:43 pm

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

by Robert Tharp at 11:25:34 am

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

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

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

Lawsuits filed by hundreds of

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

by Robert Tharp at 2:02:13 pm

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

by Robert Tharp at 9:43:01 am

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

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

by Robert Tharp at 4:43:11 pm

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

that allowed lawyers and staff to work from home.

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

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

 

 

by Robert Tharp at 1:26:05 pm

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

by Robert Tharp at 3:53:21 pm

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

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

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

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

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

by Robert Tharp at 4:23:17 pm

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

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

by Robert Tharp at 4:09:36 pm

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

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

by Robert Tharp at 3:29:18 pm

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


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