January 18, 2013 by Robert Tharp at 11:43:00 am
The New Year’s confetti is long gone and the U.S. workforce has been back on the job for a few solid weeks, and with that workers are finding something sobering in their first paychecks of 2013. As a result of the late-hour fiscal cliff brinkmanship, U.S. employees’ share of the Social Security payroll tax has reverted back to 6.2 percent (it was temporarily reduced in 2010 to 4.2 percent). That means a worker earning $50,000 this year will see $38.46 less in each twice-monthly paycheck. That’s some real pocket change for families out there living on the narrow margins, something Bloomberg Businessweek dubs “the anti-stimulus.”
The tax is no doubt a touchy subject around many workplace watercoolers, and employment lawyer Rachel Ziolkowski warns that employers need to be cautious in how they discuss this tax hit with their work force. "Employers should feel free to communicate the impact of the tax, but they should stick to the facts and avoid expressing political opinions that criticize or rationalize the increase," says Ziolkowski, a lawyer at Dallas' Gruber Hurst Johansen Hail Shank. "Such comments could lead to unwelcome political debates in the workplace and cause an already upset employee to make a discriminatory claim about their employer based on political beliefs."
January 17, 2013 by Dave Moore at 3:00:00 pm
Big Tex rates up there with barbecue and the Alamo for what makes Texas, Texas. It’s no wonder that when the State Fair of Texas icon burst into flames on Oct. 19 due to an electrical short, many Texans acted as though they’d lost a member of their family. Some Texans left flowers and photographs at the site of the disaster, mourning his passing.
Mitchell Glieber, vice president of marketing for the State Fair, tells WFAA-TV that Big Tex was the symbol of the 126-year-old fair.
He is definitely our icon. He is our Mickey Mouse. It's sad to see, but obviously we will be able to rebuild Big Tex and he'll be back here for sure for the 2013 State Fair of Texas.
However, media reports indicate that Big Tex was insured by the fair for only $200,000 – only half of his anticipated replacement cost.
On Dec. 27, reports surfaced that the fair’s board of directors is seeking private contributions to help bridge the gap and rebuild Big Tex, giving Texans another way to show their support for their favorite 52-foot-tall cowboy after he was burned to a crisp.
According to Dallas insurance attorney Marc Fanning, the fact that the appeal for money came during the holidays was probably more than coincidence.
“It’s very clever of the state fair to kind of tug on everyone emotionally at this time of year, in the giving season, to try to help them cover their shortfall,” Fanning, of the Dallas office of Fanning Harper Martinson Brandt & Kutchin, P.C., tells KLIF-AM.
Fanning adds that it is somewhat unusual that an organization would ask for help when it found itself underinsured. “I think it would only happen in the case of an icon like Big Tex, or some other landmark that is destroyed,” Fanning says. The state fair likely saved a substantial sum of money over the decades by not insuring 60-year-old Big Tex for full replacement value, he says.
January 4, 2013 by Robert Tharp at 12:00:00 am
Ah, the Texas Legislature. According to the Texas Tribune, it's five months of fierce legislating — a bit of which has as much to do with politics and elections as with governing the state. Whatever you call it, the flurry of bill filing has already begun in advance of Tuesday’s official start of the 20-week legislative session.
Already attracting serious debate is a bill filed by Rep. Helen Giddings, D-DeSoto, that(mirroring laws already in place in six other states) would forbid employers from requiring prospective and current employees from disclosing their social media login credentials. As detailed by Law360, H.B. 318 would bar employers from requesting employees' passwords to social media sites like LinkedIn and Facebook. Employment lawyers point out that the bill is unclear on several important details, including the kind of damages, if any, that employers would face for violating the rule.
Writes Law360: Loopholes in the bill could let employers bypass its rules. While the legislation would clearly bar employers from requesting employees' passwords, its language leaves open the possibility that a company could make an applicant or employee log on to an account, then view it in what's known as "shoulder surfing," according to Michael McCabe of Munck Wilson Mandala LLP. Clarification on whether employers could use information publicly available on social media sites to evaluate prospective employees will also be crucial, he said.
Additionally, employment attorney Stephen E. Fox of Fish & Richardson notes that the bill lacks a distinction between job applicants and existing employees. For example, there are valid reasons why an employer, in certain instances, might need to access an employee’s social media files.
An employer may want the right to look at social media profiles to determine if an employee out on medical leave is faking injuries, he said. And a company may want to be able to require passwords to LinkedIn accounts to ensure former employees aren’t using the site to communicate with past clients in violation of nonsolicitation agreements, he said.
“The business community will seek to significantly narrow the restraints of this bill, not in the application process, but in the context of potentially conducting an investigation while the person is employed,” Fox said. Businesses also will want the bill to let them seek social media information in the course of litigation discovery, according to Fox.
Still, the privacy implications for employees deserve consideration as well, he said. “Arguably, giving people access to social media sites is allowing the employer to invade privacy in a way that hasn’t been done before,” Fox said. “That’s a legitimate concern, and we have to find the right balance.”
Others question whether Giddings’ bill represents a solution in search of a problem, noting that few reporters are requesting this kind of information during the job interview process.
Stephen Fink of Thompson & Knight LLP said in his experience it’s rare for a company to request the information outside investigations of suspected wrongdoing, such as disclosure of trade secrets or derogatory statements about a manager.
“Maybe Texas isn’t representative of the nation as a whole, but it does look to me more like a warning to employers than actually addressing a widespread practice,” Fink said.
December 21, 2012 by Robert Tharp at 3:30:00 pm
The sun may be setting on the Hostess empire, but the company’s iconic Twinkies, Ho Hos and Ding Dongs trademarks appear poised to rise from the ashes of bankruptcy liquidation. Latest reports indicate that buyers are lining up to acquire portions of the Hostess trademark portfolio, which includes more than 200 trademarks valued at more than $100 million.
"Those trademarks and their goodwill are valuable because they evoke products that have strong sentimental value and inherent goodwill for so many Americans," says trademark attorney Amanda Greenspon of Dallas' Munck Wilson Mandala. "Other terms trademarked by Hostess like ‘Brownie Bites' are potentially valuable because consumers know exactly what they're getting, which is a plus for marketing purposes
According to the Associated Press, Twinkies, Wonder Bread and Devil Dogs are likely to return to shelves in coming months. But more than one company will probably manufacture different snack cakes once made by Hostess. Hostess Brands said in bankruptcy court Friday that it's narrowing down the bids it received for its brands and expects to sell off its snack cakes and bread brands to separate buyers. The testimony came from an investment banker for Hostess, which is in the process of liquidating.
Hostess, based in Irving, Tex., has said potential buyers include major packaged food companies and national retailers, such as big-box retailers and supermarkets. The company has stressed it needs to move quickly in the sale process to capitalize on the outpouring of nostalgia sparked by its bankruptcy.
December 18, 2012 by Amy Hunt at 11:40:00 am
Defense wins never seem to get the media love that is regularly devoted to big plaintiff victories, but that doesn’t mean they aren’t every bit as notable or important to those who win them. The latest Androvett White Paper, “Marketing Your Law Firm’s Defense Practice: Just Because Nobody Won Any Money Doesn’t Mean ‘Nothing Happened,’” offers advice on how lawyers who bring home defense wins can market their practices and generate that client-developing buzz every lawyer craves.
Marketing a defense practice isn’t impossible, but it does require a willingness to seek publicity, occasionally speak to the media, and generally take on a higher public profile than many defense lawyers are comfortable doing. It may also mean spending some time with clients to help educate them on the benefits of dealing with the media in times of crisis.
But these are not insurmountable challenges — at least they shouldn’t be.
To download “Marketing Your Law Firm’s Defense Practice,” click here.
December 14, 2012 by Robert Tharp at 4:05:00 pm
A seamingly innocuous Facebook post by Netflix CEO Reed Hastings touting the publicly traded company’s viewership numbers has run afoul with SEC watchdogs. The problem: Hastings' choice to disclose this potentially “material” information through social media rather than traditional information sources may be a violation of the SEC’s “Regulation FD.”
A recent New York Times piece does a good job laying out the issues at play involving Regulation FD:
In general, Regulation FD says that when a public company gives material nonpublic information to anyone, the company must also publicly disclose that information to all investors. Regulation FD in that way prevents selective leaks and, according to the S.E.C., promotes “full and fair disclosure.”
Regulation FD was the brainchild of Arthur Levitt, a former chairman of the commission. During Mr. Levitt’s time, companies would often disclose earnings estimates and other important information not to the markets but to select analysts. Companies did so to preserve confidentiality and drip out earnings information gently to the markets, and in that way avoid the volatility associated with a single announcement.
For Mr. Levitt, this was heresy. He believed not only in disclosure, but in the principle that all investors should have equal access to company information. Regulation FD was the answer.
If the idea behind Regulation FD is to encourage disclosure, then allowing executives to comment freely on Facebook and Twitter, recognizing them as a public space akin to a news release, is almost certain to result in more disclosure, not less, and reach many more people than an S.E.C. filing would. The agency’s position will only force executives to check with lawyers and avoid social media, chilling disclosure.
"Technology frequently evolves much faster than regulation and law," says corporate compliance attorney Randy Ray of Dallas' Munck Wilson Mandala. "Regulation FD already has evolved since it was adopted in 2000. Businesses now may provide material information to investors on their websites as a public disclosure. That was not permitted originally under Regulation FD," he says. "This case raises the question of whether a disclosure to social media followers should be viewed as a selective disclosure to ‘friends' or amounts to a public disclosure in which all interested parties have an equal opportunity to receive."
December 13, 2012 by Amy Hunt at 11:45:00 am
A deadly train/truck accident in Nevada that killed six and injured scores of train passengers has prompted at least 15 lawsuits, according to the most recent blog post by The Law Offices of Frank L. Branson.
The truck’s driver, who was killed in the crash, had frequently complained about the rig’s unreliability and called it “a piece of junk,” according to a report by the National Transportation Safety Board.
Another contributing factor may have been driver inattention, the NTSB reported. According to the report, another trucker who witnessed the crash said the driver, Lawrence Valli, "was driving like he didn't see the train and lights that were flashing well before impact." According to an Associated Press report:
The witness said he was traveling about 65 mph one-quarter to one-half mile from the crossing when he noticed the train. When he saw that Valli wasn't slowing, the man said he looked to see if the crossing mechanisms were working.
"He saw the lights flashing and saw the cross arm down," the report said.
Just before impact, the witness said he saw the truck brakes lock up and black smoke coming from the brakes.
Mr. Valli previously had received 11 speeding tickets and other violations, including inattentive driving and improper lane location. The NTSB report also said that Mr. Valli had earlier been diagnosed with amblyopia, an eye condition that can cause poor depth perception of reduced vision in one eye. However, according to the report, he had passed his most recent eye exam.
December 13, 2012 by Dave Moore at 10:31:00 am
The Androvett Legal Media & Marketing team, which spends its days immersed in legal news, has developed a list of the top news stories for 2012 in North Texas. As you’ll see, our list spans a broad range of law – from mineral rights legal work in the Oil Patch to a Constitutional question of freedom of religion in Kountze, Texas. Below are what we consider to be North Texas’ top 10 legal news stories, ranked from 10 to 1.
10. SCOTUS Stops Irving Attempt to Buy Oklahoma Water
With Texas mired in a prolonged drought, a water rights ruling from the U.S. Supreme Court in March is being seen as increasingly important. The case centered on an agreement between the cities of Irving and Hugo, Okla., that would have allowed Irving to buy water from its northern neighbor. Irving and Hugo sued the Oklahoma Water Resources Board and the Oklahoma Water Conservation Storage Commission with constitutional challenges to Oklahoma laws requiring state approval for water sales. The U.S. 10th Circuit Court of Appeals eventually ruled that the cities had no standing to sue, with the U.S. Supreme Court upholding the decision without comment.
9. Texas Regains Stature as Energy Patch State
High oil prices and increased natural gas production propelled Texas to the forefront of U.S. energy production in 2012, sending energy lawyers and landmen scurrying to keep up. Experts say the boom might push U.S. production to 11 million barrels a day by 2013, approaching Saudi Arabia-like levels. Much of that production has come via fracking – fracturing rock layers with pressurized fluids to release oil or natural gas – which originated in Texas and is generating its own legal scrutiny in some circles.
8. U.S. Supreme Court Declines to Hear ‘Candy Cane’ Case
A religious-themed case from North Texas once again gained national attention in 2012 when the U.S. Supreme Court decided not to hear a dispute over the Plano Independent School District’s decision to prevent students from handing out religious-themed gifts at school parties. The controversy stemmed from a student who wanted to give classmates a candy cane with a card that included the line: "So, every time you see a candy cane, remember the message of the candy maker: Jesus is the Christ!" The nation’s highest court declined to review a lower court ruling that public school principals have qualified immunity.
7. Cheerleader Signs Spark Another Religion Lawsuit
Public school cheerleaders from Kountze, Texas, (pop. 2,147) became the unlikely national champions for religious free speech in 2012. The dispute centers on whether the Kountze Independent School District cheer squad can display biblically themed banners at school-sponsored sporting events. School officials maintain that the practice violates the separation of church and state. Advocates for the cheerleaders claim the students are simply exercising their free speech rights. Temporary restraining orders allowed the banners to be displayed throughout the football season.
6. SCOTUS Reviewing UT Admissions Policy for Reverse Discrimination
The University of Texas’ affirmative action admissions policy was scrutinized by the U.S. Supreme Court in October after a white student who was denied admission to the school claimed she was passed over for less-qualified minority students. The high court’s pending decision could have far-reaching implications for colleges and universities across the nation. Legal experts say the UT case hinges on whether the Supreme Court is willing to continue to uphold affirmative action precedents established in cases involving other state colleges in Michigan and California.
5. Whistleblower Spurs Largest Medicaid Settlement in Texas History
The Texas Attorney General and attorneys for Pennsylvania whistleblower Allen Jones secured the largest Medicaid fraud settlement in state history in August when pharmaceutical giant Johnson & Johnson agreed to pay $158 million to resolve claims that it used false marketing tactics to convince Texas officials to put the anti-psychotic drug Risperdal on the state’s Medicaid drug plan. The state district court trial in Austin was settled after a week of trial after jurors heard evidence that Johnson & Johnson targeted every level of the Texas Medicaid Program with misrepresentations about the drug.
4. Bankruptcy for Hostess Could Spell Twinkie’s End
Irving-based Hostess Brands Inc. filed for bankruptcy protection in 2012, putting in peril such cherished brands such as Twinkies and Ding Dongs. Bankruptcy lawyers flocked to New York to work on the expansive case, with the company courting potential buyers for its various brands. Hostess officials came under fire for accepting nearly $2 million in bonuses as part of the planned liquidation, while workers complained that their pensions were not funded as Hostess had promised.
3. American Airlines Attempts to Emerge from Bankruptcy
Fort Worth-based American Airlines cleared a major hurdle in its attempt to emerge from bankruptcy protection after reaching a compromise with pilots in December. The cost for the massive reorganization topped $200 million, with American eyeing a potential partnership with US Airways. Unions for American’s pilots, flight attendants and mechanics reportedly have signed off on a US Airway merger, which could create a combined entity worth more than $8 billion.
2. Irving-based Boy Scouts of America Releases “Perversion Files”
In October, an Oregon court ordered Irving-based Boy Scouts of America to release thousands of files detailing decades of sexual abuse by troop leaders. Experts estimate that the organization maintained nearly 5,000 records of sexual deviance dating back to the 1920s, dubbing them the “perversion files.” The Boy Scouts say they have upgraded youth protection policies since the 1980s, including criminal background checks conducted on paid employees and adult volunteers. However, the group is still withholding portions of the files dating from 1985 to the present. A lawsuit in San Antonio seeks their release.
1. Legal Fight Over Texas’ Legislative Redistricting Nullifies Texas’ Political Impact
The legal dispute over Texas’ legislative redistricting made the Lone Star State a non-player in the presidential election. Texas originally was set to be a part of the Super Tuesday primary elections in March, but was delayed to May 29 when Democrats challenged legislative boundaries redrawn by Republicans. By then, Mitt Romney’s remaining Republican challengers – Rick Santorum, Newt Gingrich and Ron Paul – had effectively folded their campaigns. At the root of the Democratic challenge was the assertion that 3.7 million additional minority Texans should warrant at least one additional Democratic district. A U.S. District Court in San Antonio redrew the legislative boundaries to resemble new census data, but was then slapped down when the U.S. Supreme Court ordered a version more closely resembling Texas legislators’ original map.
December 13, 2012 by Robert Tharp at 10:30:00 am
Houston and South Texas provided an interesting variety of legal drama in 2012, from fraud to murder to indicted lawmen. Some legal cases heard in other parts of the country provided significant local impact.
Below is Androvett Legal Media & Marketing’s list of the Top 10 Houston/South Texas Legal Stories of 2012:
10. Jury Convicts Lawyer in Ongoing South Texas Judicial Bribery Scandal
Attorney Ray R. Marchan was convicted of bribing a South Texas judge, earning him a 42-month federal prison sentence in the ongoing Rio Grande Valley scandal. Marchan, a well-known Stanford Law grad, was the first lawyer to go to trial in the federal investigation involving wiretaps and years of investigation. Ex-judge Abel Limas was convicted of taking bribes, but has not been sentenced. More trials are set. Among the eight people already convicted in the scheme is former state lawmaker Jim Solis. Limas, Solis and others pleaded guilty to charges relating to the bribery.
9. Policeman Who Beat Teen Chad Holley Gets Off, Holley Arrested Again
Houston Police Officer Andrew Bloomberg was acquitted in 2012 on official oppression charges stemming from the 2010 videotaped beating of then-15-year-old burglary suspect Chad Holley. There was great community outrage over both the videotape and Bloomberg’s acquittal. Holley was convicted in the 2010 burglary and was arrested on another burglary in 2012. Other involved officers, some who were fired or suspended, are still awaiting trial.
8. Harris County Probation Department in Chaos
Widespread problems with drug testing in the Harris County Probation Department were revealed in an August hearing, and the district attorney’s office stopped using the department’s recommendations. Judges called for the ouster of the director of the 800-employee organization, who instead resigned. An interim leader was appointed to begin the agency’s rebuilding effort. One big change was the move to urine testing for alcohol offenses instead of less-effective breath tests. The department also implemented sophisticated drug testing that measures additional gradations beyond positive or negative.
7. Voter Registration and Voter Roll Problems
The seemingly never-ending redistricting battle continued to plague the Houston area when confusion emerged over changes to polling locations. But worse, the League of United Latin American Citizens sued after claiming that Harris County rejected more voter applications than any other Texas county and systematically targeted Hispanics and African-Americans in roll purges. On top of these woes, people who registered to vote when they got their drivers licenses were not properly added to the local rolls. A Texas voter ID law was placed in legal limbo as well, creating even more confusion. Still, the November elections went through without recalls.
6. Ex-Houston Astro Roger Clemens Acquitted On Charges of Lying To Congress
Pitcher Roger Clemens and Houston lawyer Rusty Hardin tried the long-running case in Washington, D.C., and came away victorious. Clemens was charged with lying under oath to a Congressional committee about using performance enhancing drugs. He claimed his innocence for years before the trial, and still found himself vilified by some in the sports press even after the jury said the evidence wasn’t there. Clemens came back home to Houston and took a couple of victory laps pitching for the minor league Sugar Land Skeeters.
5. Two Harris County Constables Face State, Federal Indictments
Harris County Precinct 6 Constable Victor Trevino was indicted by a state grand jury for failing to report cash campaign contributions, diverting money from his youth charity for personal use, and using deputies to serve eviction notices while keeping the delivery fees. Meanwhile, over in federal court, Harris County Precinct 1 Constable Jack Abercia and others face charges of conspiracy to violate various federal laws for unlawfully accessing the National Crime Information Center database on multiple occasions for private financial gain. Their lawyers say they are innocent and will fight what they claim are technical violations.
4. BP Engineer, Officials Hit with Criminal Charges in Gulf Oil Spill
Energy giant BP faced criminal allegations in Houston related to several deaths in the 2005 Texas City refinery explosion, so the criminal complaint against the company in the Gulf Oil spill were not as big a surprise as charges against employees. Though the filings are in New Orleans, the reverberations for employees reach Houston, into the Gulf, and elsewhere. In November, federal officials charged two well-site leaders with manslaughter, and a third BP official was charged with obstruction of justice. An engineer also was charged with obstruction earlier in the year. Local lawyers say additional charges could be in the works.
3. Harris County District Attorney’s Office Awkwardly Changes Hands
After the 2011 scandal over the Houston Police Department’s Breath Alcohol Testing (BAT) van and prosecutors’ handling of grand jury investigations, Texas Rangers and the FBI also took a look at Harris County DA Pat Lykos’ office. She fell in the Republican primary to Mike Anderson, a former prosecutor and judge. He faced Lloyd Oliver, a previously-indicted perennial candidate who said he puts his name on ballots to get clients. Unhappy Democrats failed to get Oliver off the ballot. Anderson beat Oliver in November, and the ex-cop and ex-GOP judge Lykos now will hand the reigns to the ex-ADA and ex-GOP judge Anderson. But the Republican Party did not keep all its county offices, voters split on judicial races, and the local judiciary appears more permanently mixed than in years.
2. Absent Day-Care Worker Jessica Tata Gets 80 Years in Child’s Fire Death
Four children age three and under died in a Houston home day care fire while caretaker Jessica Tata was shopping instead of tending to the children or monitoring the hot oil she left on the stove. A jury sentenced the 24-year-old to 80 years in prison for the death of one child following a sad and dramatic November trial. But her lawyer Mike DeGeurin says he thinks the verdict will not stand on appeal because the fire was an accident, and should not be prosecuted as felony murder. Prosecutors say they are ready to go forward with more trials on behalf of the other children who died, in addition to three others who were injured in the blaze.
1. The Stanford Financial Empire’s Day in Criminal Court
R. Allen Stanford, the former Texan turned billionaire and Caribbean knight, received a 110-year-sentence from a federal judge in Houston in June after jurors found him guilty of 13 crimes tied to the $7 billion fraud he maintained through an international financial empire. Four other Stanford Financial executives went down with him as politicians were made to return political contributions from the disgraced investment guru. Investor victims and the court-appointed receiver for the company also sued Stanford’s former law firms to try to reclaim some of the stolen funds.
November 29, 2012 by Amy Hunt at 1:45:00 pm
A truck driver who failed to heed warning signs about a traffic jam on the road ahead of him is being blamed for setting off a fatal chain reaction of vehicle collisions on Interstate 80 in western Nebraska. The resulting truck accident killed an entire family, according to the most recent blog post by The Law Offices of Frank L. Branson.
The truck was driven by Josef Slezak of River Grove, Ill., who has been charged with four counts of manslaughter and four counts of vehicular homicide.
Mr. Slezak was travelling on I-80 when he approached an earlier truck accident that had killed another semi driver, Keith Johnson. According to news reports, area truckers had been warning one another about the accident for some time on their CB radios, but Mr. Slezak never reduced his speed.
His truck collided with a car being driven by Christopher Schmidt, who then collided with the car being driven by his wife, Diana, who was travelling with the couple’s two children, Connor, 2, and Samuel, 3. All four of the Schmidts died at the scene. An autopsy later revealed that Ms. Schmidt was 30 weeks pregnant, which resulted in Mr. Slezak being charged with an additional count of vehicular homicide of an unborn child.
Mr. Slezak drove for AKI Trucking, which, according to a news report, “has a Fatigued Driving (Hours of Service) BASIC score of 80.9 percent, which exceeds the threshold for intervention by 15.9 percent.”
November 26, 2012 by Amy Hunt at 12:00:00 am
The stress of divorce can cause as much, or more, damage than the divorce itself. But if recent divorcees cope with their stress in positive ways, they can be on a better footing than they were before the divorce, says the Dallas family law firm of McCurley Orsinger McCurley Nelson & Downing in its most recent blog post.
In addition to sleep, exercise and good nutrition (which were covered in an earlier blog post), the firm offers seven tips for turning divorce anxiety into “an opportunity for improvement.”
1. Meditation, whether on its own or combined with a tai chi or yoga practice;
2. Journaling, which can help you process complex, often conflicting, emotions;
3. Friends, “the real kind, not the Facebook kind,” are key to staving off depression;
4. Nature has amazing restorative effects, both in adults and kids;
5. Laughter “distracts us, releases positive hormones, reduces anxiety, and just generally makes us happier”;
6. Prioritize your life by doing the “important but not urgent” things that would make your life better;
7. Organize your home, car and office. Even if you tackle it one drawer at a time, it’s energizing and liberating.
November 20, 2012 by Amy Hunt at 11:21:00 am
Even though the Texas Supreme Court has approved a set of pro se divorce forms for divorcing couples who have no minor children and no real property, the Dallas family law firm of McCurley Orsinger McCurley Nelson & Downing says the forms should only be used with caution.
In its most recent blog posting, the firm writes that although there are times when divorcing couples can forego hiring a lawyer, “we remain concerned that some divorcing spouses, particularly those who have no access to information about the couple's assets or who are the victims of physical or emotional abuse, could be harmed if they take the pro se route when they should have sought counsel who might have protected their interests.”
As part of its commitment to providing legal services to those who can’t afford them, McCurley Orsinger attorneys frequently volunteer to represent indigent spouses in their divorce cases. But, according to the Supreme Court, there were 58,000 pro se family law cases filed in Texas in 2011. So even if every one of the 4,400 members of the State Bar of Texas’ Family Law section handles a pro bono divorce every year, it would leave tens of thousands of litigants unrepresented by counsel.
As the firm writes,
The pro se forms approved by the Court are definitely an imperfect solution, but we live in an imperfect world. We nevertheless counsel anybody considering a pro se divorce to do so with great trepidation. Hiring a lawyer who can protect your interests is always preferable to going it alone.
November 14, 2012 by Robert Tharp at 12:00:00 am
Two recent surveys put some real numbers to broad trends we’ve been seeing for some time: 1) Americans are continuing to get their information from digital sources at the expense of traditional media, increasingly from mobile devices and social media platforms and 2) law firm websites are playing an increasingly critical role in business development and as an essential vetting mechanism for prospective clients.
Pew Research Center for the People & the Press reports another chapter in the steady demise of traditional(hard copy) news. Back in 2000, Pew found that nearly 50 percent of survey respondents said they’d read a print newspaper the day before. Circa 2012, the readership rate is less than half of that. No huge surprise there, but what’s more interesting is that consumers of information are increasingly(and predictably) using mobile devices to get their news. According to Pew, mobile device users are three times more likely to get news from social media as those who use a desktop device. Among the under-30 crowd, a whopping 30 percent are getting their news from social networks via mobile devices
Meanwhile, Law 360 recently weighed in on the information-consumption habits and vetting processes of prospective law firm clients. Citing a Lexis/Nexis survey, Law360 writes:
With nearly 75 percent of people using online resources to help select legal services, it is more important than ever that firms and attorneys invest in their Web presence through easily accessible websites and social media use. Specifically, general counsel of large corporations are more likely to look at websites more for validations, as opposed to choosing a firm based directly from its website.
The Lexis/Nexis survey found that potential clients frequently used social media throughout the attorney search process, with 20 percent using Facebook, Twitter, LinkedIn and YouTube.
The basic takeaway here is that not only do today’s websites need to be dynamic and professional, they need to be findable and, perhaps crucially, they need to look good on a mobile phone screen.
November 12, 2012 by Amy Hunt at 3:53:00 pm
Traffic fatalities caused by motor vehicle collisions jumped 9 percent the first half of this year, which is why a highway safety group is calling for an increased emphasis on preventing deadly truck accidents, says The Law Offices of Frank L. Branson in its most recent blog post.
The National Highway Traffic Safety Administration reported that the number of fatalities caused by motor vehicle collisions increased 9 percent in the first half of 2012, as compared to the same period in 2011. That’s the largest jump in a single year since the agency began collecting traffic fatality statistics in 1975, the firm writes.
In response to the NHTSA report, The Advocates for Highway and Auto Safety, an alliance of consumer, health and safety groups and insurance companies and agents, issued a statement calling for an increased emphasis on highway safety in Congress and state legislatures. Among the recommended actions, the group says, are steps to address trucking safety[.]
Those recommendations include addressing hours of service limits and driver training.
November 12, 2012 by Amy Hunt at 3:39:00 pm
Divorce is stressful, but the way people deal with that stress can either help or hurt them in the long run, says the Dallas family law firm of McCurley Orsinger McCurley Nelson & Downing in its most recent blog post.
“Regardless of the circumstances of a divorce,” the firm writes in the first of a two-parter on stress management for the newly divorced, “it's possible to deal with the anger, sadness and regret in positive ways. Almost all of these techniques will take some time and dedication, but if there's ever a time to make your mental and physical health a priority, it's during a divorce.”
If you find yourself saying ‘I can't do that because...,’ realize that you're the only person who can make your health a priority. Your reasons may be valid and difficult to overcome (job schedule, children's demands, etc.), but if you can make your well-being the priority around which other people's needs are met, you will find yourself far more alert, energetic and focused-all of which makes you a better employee, parent and friend.
Remember what the flight attendant says before every flight: ‘If you're travelling with a child, please put the oxygen mask on yourself before putting it on the child.’ That's because we can't help anybody if we've passed out.
The three most important tools in stress management, the firm writes, are sleep, exercise and nutrition. Sleep is “is the closest thing there is to a magic wellness pill,” closely followed by regular exercise. Those experiencing divorce-related stress also need to seek out fresh vegetables, whole grains, lean sources of protein and healthy fat—and not processed or fast foods that can give quick energy but can cause serious long-term health issues.
“Admittedly, keeping prepared, healthy foods in the house takes planning and organization,” the firm writes, “but it's a better investment than Apple stock.”
November 9, 2012 by Robert Tharp at 12:00:00 am
As the nation honors those who have served and sacrificed on Veterans Day, an estimated 1 million vets are expected to re-enter the workforce in the next five years as wars in Iraq and Afghanistan wind down. It’s a daunting challenge in this economy, underscored by the recent experience of young veterans. Unemployment rates indicate that young vets have unemployment rates far higher than their peers.
Today's returning warriors offer valuable professional and leadership skills, and the 2011 VOW to Hire Heroes Act offers incentives for employers who hire vets. The VOW to Hire Heroes Act allows employers to receive tax credits up to $2,400 for hiring veterans unemployed for more than a month (but less than six months). The incentives climb for hiring a veteran out of work for more than six months, and they reach as high as $9,600 for businesses that hire veterans with service-related disabilities.
Munck Wilson Mandala attorney Michael Rodriguez knows first-hand how the experience can build leadership skills and character that are valuable to employers. An intellectual property lawyer with a degree in engineering, Rodriguez has served two tours in combat zones in both Iraq and Afghanistan as an officer in the Navy SeaBees combat engineering brigade.
"Young vets in many ways have skill sets and practical experience far beyond their peers," he says.
November 7, 2012 by Amy Hunt at 10:26:00 am
Following a divorce, it can be a challenge for non-primary parents to maintain a meaningful relationship with their children since they may see them only a couple of times each week, according to a recent blog post from the family law firm of McCurley Orsinger McCurley Nelson & Downing L.L.P. Non-primary parents may be tempted to make elaborate plans and find fun things to do during visits with their children, but that may be a recipe for failure, the firm writes.
Time alone with kids – without the other parents' intervention or the conflict that can be present in unhappy marriages – can provide the non-primary parent with a prime opportunity to occupy a unique and invaluable place in their children's lives.
That can only happen, though, if the non-primary parent takes off his or her "entertainer" hat. Visitation time isn't vacation time for the kids. It's not an excuse for late nights, all-pizza-and-ice-cream diets, unlimited television, and trips to the nearest amusement park. That's what grandparents are for.
The non-primary parent's home needs to be the kids' true second home, with a dedicated space for them to sleep and study, chores, responsibilities, limits, consequences, and routine. Those all provide a solid foundation for children in any situation, but children of divorce need them even more.
Ensuring that visits with non-primary parents are “an extension of, rather than a vacation from, their routine” can help kids build the strong parental relationship that they want and need, the firm writes.
November 5, 2012 by Amy Hunt at 2:04:00 pm
Jeff Anderson, a partner in the Dallas family law firm of McCurley Orsinger McCurley Nelson & Downing, said if the Collin County Judge in the Deion and Pilar Sanders divorce case had invalidated the couple’s premarital agreement, it would have been “a game changer.”
In an interview with Dallas’ Fox 4 News, Anderson (who is not involved in the case) said that, without a premarital agreement (also known as a prenuptial agreement), the couple’s assets would have been considered community property “unless proven otherwise.” That would have probably given Pilar Sanders a much larger share of the former Dallas Cowboys’ assets, according to the law firm’s most recent blog posting.
Despite Pilar Sanders’ contention that her initials were forged in several places in the premarital agreement, the judge ruled that the agreement was valid.
November 1, 2012 by Robert Tharp at 3:05:00 pm
A Houston Chronicle article published today detailing a federal Civil Rights lawsuit against Pasadena police paints a chilling picture of the last moments of 41-year-old Jose Sauceda Jr.’s life.
Reportedly beaten, shackled in a “hogtie” position face-down on a stretcher and left without medical care in a Pasadena, Texas, hospital room, 41-year-old Jose Sauceda Jr.’s death in custody raises serious questions about his treatment by police. The lawsuit filed by The Lanier Law Firm on behalf of Mr. Sauceda’s family seeks answers about how the married father of four died in police custody after his March 25, 2012, encounter with Pasadena officers.
According to the lawsuit, Mr. Sauceda was detained by Pasadena police on suspicion of driving while intoxicated. He was taken to Bayshore Medical Center for a blood test after being beaten by police and hogtied face-down on a stretcher, according to the suit filed Oct. 26 in the 127th State District Court.
Writes the Houston Chronicle: The defendants, who deterred attempts by hospital staff to assess and treat Sauceda, watched him struggle, turn purple and blue and die, the suit claims.
"That's the thing that is most mind-boggling here," said attorney Lawrence P. Wilson of The Lanier Law Firm in Houston. "Did they not realize he was in distress? Did they not at some point say, 'You know what? We ought to let the medical people check him out.' "
After Mr. Sauceda was transported to the hospital and placed in a private room, the lawsuit says, at least one Pasadena police detective and several officers looked on while he struggled for air and eventually died. According to the family’s claims, the same officers prevented hospital nurses from caring for Mr. Sauceda’s obvious injuries.
“Jose’s family wants answers, and they deserve to know why this happened and who should be held responsible,” says Mr. Wilson, lead counsel for the family. “How can a room full of police officers stand a few feet away while a healthy man is suffocating right in front of them?”
October 30, 2012 by Amy Hunt at 3:38:00 pm
When a character on a TV show signs a prenuptial agreement, it’s often portrayed as “an unbreakable vow” that leaves the less asset-rich spouse with no possibility of contesting it.
The truth is there are several circumstances in which a prenup, also called a premarital agreement, can be declared invalid. One of the primary ways a prenup can be undone is if one of the spouses was dishonest when the agreement was drafted, R. Scott Downing, a McCurley Orsinger partner, told the Reuters news service.
Mr. Downing told Reuters of a case in which his client was able to get a prenup thrown out “after a court ruled her husband had community property worth millions that he hadn't disclosed to his wife.”
One of the husband's downfalls was that he had given his wife a revised prenup on their wedding day. When she said she wanted to call her attorney, he lied, saying that her attorney had said it was okay to sign it.
"People need to know that if you're going to promise somebody a complete disclosure in a prenup, you'd better give it to them," says Downing.
October 30, 2012 by Robert Tharp at 3:30:00 pm
Teasing danger is certainly a big part of the allure of midway carnival rides at the State Fair of Texas and carnivals and fairs big and small across the country. As the rides have gotten bigger, faster and more sophisticated, the carnival ride industry has matured with better oversight and more safety protections for passengers.
But this year’s record-breaking State Fair of Texas points the need for more work to be done. On the same day that the iconic Big Tex was incinerated in a dramatic flash fire, riders on the already troubled Statosphere ride were left dangling nearly 200 feet in the air for more than two hours.
Meanwhile, another ride at the State Fair of Texas, the Techno Power(also known as Re-Mix II), was involved in a mishap at the 2011 San Diego County Fair. In that incident, the ride malfunctioned and started up as passengers were disembarking, throwing one passenger and seriously injuring a ride operator. Investigators were unable to pinpoint the precise cause of the accident, but the ride was rewired and allowed to go back in commission in advance of the State Fair of Texas. And earlier this year, a Houston man died when he fell from the Hi-Miler roller coaster at the Houston Livestock Show and Rodeo.
The increased focus on amusement ride safety at the State Fair of Texas is in part a result of work by Dallas personal injury lawyer Frank L. Branson who represented victims of a 1983 accident involving the “Enterprise” ride at the State Fair of Texas in 1983, which killed one rider and seriously injured another. As part of a settlement in that case negotiated by The Law Offices of Frank L. Branson, fair officials agree to implement extra monitoring and safety measures.
"They've certainly changed for the better," Mr. Branson says. "There's still a lot of hazard out there."
October 29, 2012 by Robert Tharp at 12:00:00 am
Voters in some states have reported waiting as long as five hours to cast early voting ballots for the 2012 presidential election. With election day(November 6) fast approaching, some workers are no doubt wondering how they will find time to vote if they’re expected to put in a regular full day of work at their jobs. There’s even a movement afoot to make voting a national holiday or to move election day to a already designated holiday, such as the second Tuesday in November, Veterans Day.
Writes The Atlantic: The idea that voters shouldn't have to work on Election Day isn't a new one -- every four years, there are new calls, though none of them has been successful. We cast ballots on a Tuesday for outdated historical reasons. When the date of elections was fixed on the first Tuesday after the first Monday in November in 1872, Sunday was out of the question, as poll-related revelry would have fatally conflicted with the sabbath, and most people worked the other six days anyway. But since the establishment of the five-day work week, the placement no longer makes as much sense.
What many workers and some employers don’t realize is that state laws typically require employers to provide job-protected time off to vote, says Audrey Mross, who heads the labor and employment practice at Munck Wilson Mandala in Dallas.
"The Texas version of the law says employees get time off unless their schedule provides two consecutive non-working hours during the time the polls are open," Mross says. Some states, such as California, require workplace posters that inform employees of their rights as voters. Others prohibit discrimination against those who engage in certain political activities, such as running for office or working at a polling place.
October 16, 2012 by Amy Hunt at 5:08:00 pm
Distracted drivers of all kinds are a road hazard, but inattentive truck drivers are particularly deadly because of the size and speed of their rigs. According to the latest blog post by truck accident lawyer Frank L. Branson of Dallas’ Law Offices of Frank L. Branson, a recent collision in upstate New York was caused by a truck driver who failed to see prominent signs warning of road construction.
Six people died in the accident that police say was caused when truck driver James Mills Jr. slammed into a line of cars in northern New York. Among the victims were an elementary school speech therapist and her two teenage daughters, as well as the woman’s 69-year-old mother-in-law.
According to a report in the Plattsburg, NY, Press-Republican, Mr. Mills’ 18-wheeler was headed south on a slightly downhill stretch of highway when he slammed into an SUV, setting off a chain reaction. An investigator told reporters that the construction project was visible and that the signage was sufficient to alert drivers.
According to the news report:
The tractor-trailer is owned by MBM Customized Foodservice Distribution, based in Rocky Mount, N.C. A spokesman for the company didn't immediately return a call seeking comment Friday afternoon.
Trucks operated by the company have been involved in 75 accidents over the past two years, including one crash that killed one person and 23 crashes that resulted in at least one injury, according to data compiled by the Federal Motor Carrier Safety Administration.
October 11, 2012 by Amy Hunt at 3:36:00 pm
We’re not even mid-way through October, but the Dallas family lawyers at McCurley Orsinger McCurley Nelson & Downing L.L.P. say it’s not too soon for recently divorced families to start planning for the holidays.
The firm’s most recent blog post says some recently divorced couples may even want to continue celebrating some special events, such as Thanksgiving dinner or Christmas morning, together—assuming the ex-spouses are able to get along.
It’s probably not an ideal solution for the long-term, particularly if either spouse has or is planning to remarry, but it may help to ease the children’s transition for the first year.… Clearly, this is one of those ideas to be taken on a case-by-case basis because although it may work fine for one family, it may be disastrous for another.
Other tips include making an agreement about gifts and how those and other holiday costs will be paid for; finding new traditions; keeping some old traditions; and making a special effort to be civil with the ex.
“Holidays can be stressful even under ideal circumstances,” the firm writes. “Adding a recent divorce into the mix only compounds that stress.”
October 11, 2012 by Robert Tharp at 12:00:00 am
For veterans of the legal profession, the world has a way of feeling incredibly small at times. Law school roommates become judges. Former colleagues end up on the opposing side in lawsuits. In any given case, it can take a Venn diagram to detail the shared histories between opposing lawyers, judges, arbitrators and experts.
The age-old challenge is determining where to draw the line and when to disclose a potential conflict. The United Nations Commission on International Trade Law (UNCITRAL) tried to tackle the topic with new disclosure rules for arbitrators, but Gardere Wynne Sewell LLP partner Juan M. Alcalá of Austin says there’s more work to be done.
"With respect to an arbitrator's disclosure standards, there remains uncertainty as to what constitutes a circumstance worthy of disclosure,” says Alcalá, who co-wrote the chapter "Arbitrator Disclosure Standards in a State of Flux" in the International Centre for Dispute Resolution book, "ICDR Awards and Commentaries." “The uncertainty will continue until there is a uniform standard and rules for determining an arbitrator's disclosure responsibilities."
October 11, 2012 by Dave Moore at 12:00:00 am
The Boy Scouts of America is reeling in response to a court order to release a trove of closely guarded internal files documenting the group’s poor record of protecting young boys and adolescents from sexual abuse. Dallas trial lawyer Bill Chamblee says the experience of the BSA offers valuable lessons for organizations of any kind.
An Oregon court recently ordered the non-profit Boy Scouts organization to open its so-called “perversion files,” which detail sexual abuse at the hands of troop leaders and other adults affiliated with the organization dating back to 1965.
Based on preliminary analysis of these so-called “perversion files,” the Scouts in failed in many cases to report the allegations to police in an apparent effort to protect the Boy Scouts’ public reputation.
Writes the Los Angeles Times’ Carla Hall:
That pattern sounds horribly familiar. As with the sexual-abuse cases that rocked the Roman Catholic Church and the Jerry Sandusky case at Penn State, here is another situation in which authorities, entrusted to care for young people, failed to deal properly with molesters in their institution, which led to more children and youths being victimized.
Adds Chamblee of Dallas-based Chamblee, Ryan, Kershaw & Anderson: "Any organization, especially those that deal with the mentoring or supervising of children, needs to conduct thorough background checks on individuals before putting them in positions of trust. If there are reports of abuse, organizations must act swiftly, not just to protect themselves, but also to prevent further abuse. As we've learned from the Catholic Church, any attempt to hide wrongdoing can make an organization a party to abuse."
October 9, 2012 by Robert Tharp at 1:32:00 pm
The billions of barrels of oil sitting in the Eagle Ford Shale of South Texas have generated a boom in oil and natural gas production and provided much-needed jobs and economic growth in those areas with underground energy reserves. But the most recent blog posting by the Law Offices of Frank Branson shows that this new and welcome prosperity comes with a tragic downside: a dramatic increase in deadly truck crashes.
According to an analysis by the San Antonio Express-News:
Since the beginning of the boom, accidents involving commercial vehicles [in McMullen county] have increased more than tenfold, from four crashes in 2008 to 46 crashes in 2011, according to crash data compiled by the Texas Department of Transportation.
Neighboring La Salle County has had a 418 percent increase in that type of crash since 2008. . . .
The most frequently cited causes for McMullen County accidents were truck drivers ignoring signs in construction zones and defective headlights, according to the TxDOT data.
According to the Branson firm’s blog, not only do truck crashes cause fatalities, “but they also wreak havoc on nearby residents and make routine errands almost unbearable,” in addition to causing extensive damage to area roads.
October 4, 2012 by Dave Moore at 9:44:00 am
Most airline passengers’ knowledge of bankruptcy doesn’t extend beyond reading news accounts of the travails of the U.S. and global economy.
However, passengers of Fort Worth-based American Airlines seem to have found themselves in the middle of a bankruptcy-related power struggle between the airline pilots’ union and American’s parent company AMR. Recent developments include AMR’s threat of court action unless pilots end unnecessary flight delays. Some speculate that the pilots are delaying flights as payback to the airlines, which successfully fought in bankruptcy court to change the terms of pilot labor contracts.
“People don’t want to be dragged into a bankruptcy dispute,” Dallas bankruptcy lawyer Linda LaRue recently told KRLD-AM reporter Chuck Schechner. LaRue, who works in the Dallas office of Quilling, Selander, Lownds, Winslett & Moser, P.C., adds: "The airline and the union may argue over the facts underlying the delays and cancellations, but one undeniable point is that the continued loyalty of the customer base is necessary in order for the airline to survive. It doesn't matter what side the public blames for its inconvenience. The issue is whether passengers will take their business elsewhere and, if so, for how long.”
September 18, 2012 by Robert Tharp at 12:00:00 am
Texas home and property owners enjoy particularly robust protections from creditors that shield against the forced sale of a home to meet the demands of creditors. What many don’t know is that these safeguards can be traced directly to early Texas history when founders were motivated to make the state attractive to settlers.
Many Americans who settled in Texas in the early nineteenth century were pursued by their creditors, and for their protection Stephen F. Austin recommended a moratorium on the collection of the colonists' foreign debts, notes the Handbook of Texas Online.
"Early leaders wanted to settle the state as quickly as possible," explains bankruptcy lawyer Frances Smith of Dallas-based Shackelford Melton & McKinney. "To encourage settlers to move to Texas, founders advertised generous homesteads, which were protected from creditors." As a result, Texans' homesteads – the land and house they occupy – always have been exempt from general creditor claims. This generally covers up to 10 acres of urban land, and up to 200 acres of rural property. "Texas doesn't cap the value of your homestead," adds Smith. "Some states will say you get your homestead up to $25,000 or $30,000, but Texas does it by the land area, so it doesn't matter what the dollar value might be. Whether your 200 acres is worth $2 million or $200,000, it doesn't matter. Each of your 200 acres is protected."
August 24, 2012 by Robert Tharp at 12:00:00 am
Former FBI director Louis Freeh’s exhaustive report on the Penn State sex abuse scandal offers a sobering picture of the workplace culture inside Penn State that allowed Jerry Sandusky’s pattern of child sexual abuse to go unreported for so long. While businesses and employers would prefer to think that their workplace environment is far different from that of Penn State and its mighty football program, employment attorney Audrey Mross at Dallas-based Munck Wilson Mandala LLP says the Freeh Report findings and recommendations offer valuable tips that any business can use.
The report pulls no punches in outlining “catastrophic” leadership failures within the school. Writes the Washington Post:
The report wrote that four of the top officials at the university “failed to protect against a child sexual predator harming children for over a decade.” It says that the former president “discouraged discussion and dissent.” And it notes that the “most senior leaders” at Penn State demonstrated “total and consistent disregard…for the safety and welfare of Sandusky’s child victims.”
Top leaders were “unchecked by the Board of Trustees that did not perform its oversight duties.” The board “failed in its duties to oversee the President [Graham Spanier] and senior University officials in 1998 and 2001 by not inquiring about important University matters and by not creating an environment where senior University officials felt accountable.” And they were blamed for “overconfidence in Spanier’s abilities to deal with the crisis,” a “complacent attitude” and a failure to have “regular reporting procedures or committee structures in place to ensure disclosure to the Board of major risks to the University.”
One might argue that if the president chose not to alert the board about incidents in 1998 and 2001, then the trustees were simply left in the dark and couldn’t have done more. The Freeh report sees it differently. Because it did not have “regular reporting procedures or committee structures in place to ensure disclosure” of major risks, the board “failed to exercise its oversight and reasonable inquiry responsibilities,” the report states.
Beginning at page 127 of the report, numerous recommendations offer ways to make any organization accountable and more transparent, establish higher ethics and oversight standards and develop ways to ensure that workers feel comfortable voicing concerns.
"Offering protection to whistleblowers who point out wrongdoing, holding leaders accountable for their actions, and having zero tolerance for abuse are touchstones that all organizations should adopt," says Mross, whose labor and employment practice includes helping clients develop workplace employment policies and guidebooks.
August 23, 2012 by Robert Tharp at 12:00:00 am
Many were surprised by the news this month that retired Dallas Stars hockey legend Mike Modano and singer/actress wife Willa Ford have filed are divorcing after five years of marriage and four previous years of courtship.
Details may one day shed light on the causes of this sports star/entertainment celebrity breakup, but observers point out that it’s notable that the breakup comes less than a year after Modano experienced a major life change by retiring from his pro hockey career. Relationships involving highly successful dual-career couples often come under strain when one partner retires, says Brad LaMorgese, a partner in the Family Law firm of McCurley Orsinger McCurley Nelson & Downing L.L.P.
"The toll paid on a marriage when a spouse has a major change in their professional life can be irreparably compounded when the other is still moving ahead full speed in their chosen field," LaMorgese says. "The initial compromises a high-power couple forge to make their relationship work may not be able to withstand the seismic shift in goals and expectations."
August 21, 2012 by Robert Tharp at 12:00:00 am
With construction now underway on the Texas leg of TransCanada’s Keystone XL pipeline, players on both sides of the politically polarizing project are anxiously awaiting an east Texas judge’s ruling on a closely watched challenge to TransCanada's use of eminent domain to obtain right-of-way use of private property.
In a recent Law360 update on the court battle between an individual property owner and TransCanada, real estate and eminent domain lawyer Charles Fiscus of Shackelford Melton & McKinley in Dallas described how the two sides are locked in a battle over the oil company’s designation as a “common carrier,” which allows it to seize private property. As such, TransCanada must prove the project will benefit the public, and not just the company.
Fiscus said the Crawford case was “the exception as opposed to the rule” when it comes to condemnation suits brought by oil and gas companies because the vast majority of such cases are settled. But Fiscus noted that the case raises issues that should cause litigators to take pause when seeking a judicial condemnation judgment based on common carrier status. Because property ownership is a politically and emotionally charged issue, Fiscus said the perception that private land is being taken for a commercial purpose raises the evidentiary bar.
“The further your client gets away from being a public entity ... the more you’re going to have to make sure you can prove you are taking the land for public use,” he said.
But the high-profile nature of the case makes it likely that public officials will be paying close attention to the ability of common carriers to condemn land, particularly with a seat on the Railroad Commission set to be filled in November, Fiscus said.
“The pipeline is coming through a lot of farmland and land that has been in family hands for three or four generations,” he said. “People are attached to their land.”
August 3, 2012 by Dave Moore at 12:00:00 am
Medicare fraud costs U.S. taxpayers $60 billion a year, according to Justice Department estimates.
Cortez Mills, a former employee of a Baylor-affiliated physicians group, recently blew the whistle against such fraud, alleging that she was fired from her job at Dallas-based Texas Vascular Associates (TVA) when she refused to double bill and overcharge Medicare, insurance companies and patients.
“Ms. Mills identified what we believe was an illegal scheme at TVA, and she lost her job for refusing to play along,” says Dallas employment attorney Matt Scott of the Kendall Law Group, who represents Ms. Mills. “She had the courage to speak up and recognize this was wrong.”
The complaint, filed on July 26, alleges that when Mills declined her employer’s instructions to participate in TVA’s fraudulent billing scheme, a TVA supervisor responded: “He pays your salary, do what he says.”
Probes into overbilling – referred to as “upcoding” – and other forms of medical billing fraud have uncovered billions of dollars stolen from the federal government and is “one of, if not the most profitable crimes in America,” reports news magazine “60 Minutes”:
…The FBI arrested 53 people in Detroit, including a number of doctors, and charged them with billing Medicare more than $50 million for unnecessary medical procedures.
And in Los Angeles, the City of Angels Medical Center recruited homeless people off the street to fill their empty beds, offering them cash and drugs plus clean sheets and three square meals a day, while billing Medicare tens of millions of dollars for their stay.
“We have to understand this is a major fraud area,” United States Attorney General Eric Holder told (“60 Minutes” correspondent Steve) Kroft.
Mills has taken and passed a polygraph exam indicating that what she says about the billing practices at Texas Vascular Associates is true. In addition, another former TVA employee has signed an affidavit saying she witnessed the same kinds of billing problems during her tenure at the practice.
July 13, 2012 by Robert Tharp at 12:00:00 am
The clock is winding down on what BusinessWeek calls an “unprecedented opportunity” to transfer wealth among family members. The ability to transfer as much as $5.12 million in assets tax-free is set to close on December 31, and with that an opportunity for wealthy individuals to share assets and save millions in taxes.
Writes BusinessWeek: Legislation enacted in 2010, which raised the lifetime gift-tax exclusion to $5 million from $1 million for each person starting last year, is set to expire. For 2012, the inflation-adjusted figure is $5.12 million for each person. It will drop to $1 million on Jan. 1 unless Congress acts.
Money or property given while alive may be subject to the gift tax, and wealth transferred at death may incur levies applied to estates, according to the Internal Revenue Service. Under current law, an estimated 3,300 households may have to pay estate taxes this year, according to the Washington-based Tax Policy Center. The figure would increase to about 52,500 estates next year if the exemption drops to $1 million, data from the nonpartisan research group show.
With the tax break set to expire, Dallas attorney Dan Baucum of Dallas-based Shackelford Melton & McKinley says the well-to-do are turning to exotic techniques in a last-ditch effort to protect their investments from the looming tax uncertainty. "Some families have tried to delay the inevitable death tax through provisions in their Last Will and Testament documents, and a few have created 'Family Limited Partnerships,'" says Baucum, a former special assistant to the IRS associate chief counsel. But for those with working assets, such as a family farm or business, these options won't work. Instead, they are opting for a "Defective Grantor Trust" where parents make a seed gift or sale to a trust with special terms that treat themselves as the owners. This gives them control, but gifts future appreciation to their heirs. "Generally speaking, property values are at or near their all-time lows. If you're going to 'sell or gift' to your heirs, now may be the time to do it," he adds.
June 22, 2012 by Robert Tharp at 12:00:00 am
Employment discrimination lawsuits under the Americans with Disabilities Act (ADA) have nearly doubled in the last five years, and this trend shows no signs of slowing down, according to the Transcational Records Access Clearinghouse. The 90 percent increase in discrimination lawsuit filings follows changes to the ADA in 2008 that significantly broadened the range of workers protected under the statute and simultaneously made it harder for employers to obtain summary judgments for frivolous complaints, says employment litigator Michael Baum of Dallas-based Munck Wilson Mandala.
"The broader definitions of who qualifies as 'disabled' under the ADA, coupled with an economic downturn in which out-of-work employees are more likely to sue their former employers, has resulted in a significant uptick in these types of lawsuits across the country," he says.
Writes the Washington Times:
In the last fiscal year, disability-related complaints lodged with the Equal Employment Opportunity Commission (EEOC) also rose to their highest level, at 26,000, and payouts to complainants through that process nearly doubled to $103 million compared with the figure from 2007. That does not include money paid out to those who took their complaints to court.
The flood includes more frivolous claims than ever: Despite the broadened law, the EEOC saw the highest percentage yet deemed “no reasonable cause” last year.
The ADA Amendments Act of 2008 undid a court precedent requiring judges to take into account “mitigating measures” that treat disabilities, effectively saying that hearing-impaired people are not disabled if they wear hearing aids that restore hearing. Attorneys for employees say those measures don’t entirely undo a person’s disability.
June 8, 2012 by Robert Tharp at 12:00:00 am
The number of lawsuits filed against debt collectors under the Fair Debt Collection Practices Act has skyrocketed from 3,200 in 2006 to more than 12,000 last year, in part because of a litigation business model in which law firms that specialize in Fair Debt Collection Practice Act (FDCPA) claims file large volumes of cases in which successful plaintiffs collect a relatively modest award while the law firms reap significant legal fees paid by the defendant.
That model could change now that the U.S. Supreme Court is set to weigh in on whether plaintiffs who unsuccessfully sue debt collectors can be required to pay the defendant’s legal fees. Dallas collections attorney Brandon Starling of Shackelford Melton & McKinley says a ruling that upholds the lower court’s opinion has the potential to shift the legal landscape and reverse the trend.
“This might make law firms that file massive numbers of these fair debt collection suits think twice,” Starling says. “If the Supreme Court were to say these debt collection firms can be awarded fees and costs in their legal defense, it might make these plaintiff firms more reasonable and easier to deal with.”
Writes the ABA Journal: The case turns on the interplay between the federal rule and this provision of the Fair Debt Collection Practices Act: “On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney’s fees reasonable in relation to the work expended and costs.”
June 6, 2012 by Robert Tharp at 2:00:00 pm
An avid boater, Dallas personal injury lawyer Robert S. Gregg has seen firsthand how cavalier attitudes about boat safety can have serious consequences. Gregg collected boat accident stats going back five years and came up with some very interesting results. His analysis found that operator inattention and alcohol consumption are the top contributing factors for boat accidents on Texas lakes. Additionally, Gregg found that the boat accidents traditionally spike during the busy Memorial Day weekend. See a news report on Gregg's analysis by CW 33's Dawn Tongish below.
May 9, 2012 by Robert Tharp at 12:00:00 am
When tempers boil over during emotional family law matters, social media platforms like Facebook and Twitter are often irresistible for spouses needing to blow off steam. But as any family law attorney will attest to, venting on social media during divorce is a terrible idea. A recent poll by the American Society of Matrimonial Lawyers found that 80 percent of family law attorneys had used social media posts in divorce proceedings.
Dallas Cowboys Hall of Famer Deion Sanders may be the latest to learn this lesson the hard way. Sanders has used his Twitter account to regularly broadcast the latest developments in his high-profile and high-drama breakup with his wife, Pilar. He even brought his young children into the fight by posting photos of the kids purportedly filling out police reports about their mother’s behavior.
In this report by KTVT Ch. 11 in Dallas, Dallas family law attorney Carmen Eiker of McCurley Orsinger McCurley Nelson & Downing explains why it’s a bad idea for spouses going through divorce to lash out on social media. “In general, it’s a bad idea,” she says. “That’s the kind of thing that reveals a lot about a person … Think before you post.”
May 3, 2012 by Robert Tharp at 11:00:00 am
The anything-goes nature of communication on Facebook and other social media platforms has created perilous territory for employers and employees alike. In this story by CW 33 in Dallas, reporter Dawn Tongish explores the changing legal landscape and recent NLRB opinions designed to provide much-needed guidance to HR departments. Labor & employment lawyer Audrey Mross of Dallas-based Munck Wilson Mandala explains that many employers are suprised to learn that they cannot implement blanket policies forbidding workers from leveling criticism in online forums.
May 3, 2012 by Robert Tharp at 8:00:00 am
American Airlines highly anticipated descent into Ch. 11 bankruptcy has been keeping North Texas news reporters busy trying to explain the complicated legal twists and turns and the potential impact to the local economy. Interest was amped up a notch when US Airways began manueverings to position itself in front of AMR's creditors with an eye toward acquiring the struggling airline. In this news report by KTVT Ch. 11 in Dallas, business lawyer Randy Ray of Dallas-based Munck Wilson Mandala discusses developments in the American Airlines bankruptcy, including the latest moves by US Airways.
March 29, 2012 by Dave Moore at 12:00:00 am
Does the threat of a traffic ticket have a deterrent effect on reckless and risk-prone drivers? In Texas, where the annual number of speeding and other traffic tickets has dropped by more than 433,000 over the past five years, a recent increase in teen driving fatalities raises real concerns, says Dallas personal injury/criminal defense lawyer Robert S. Gregg.
Gregg notes that teen drivers are a notoriously impulsive, reckless and risk-prone group, and that’s just one of the reasons why insurance rates for teen drivers are triple that of most adults. Drivers, and teens in particular, need to know that careless driving habits have real consequences.
“If drivers are running more red lights, speeding and violating the law without consequences, you’re going to see more wrecks and injuries,” says Gregg, whose personal injury practice includes representing individuals who have been injured in crashes caused by reckless and negligent drivers. Gregg has particular expertise representing victims who have been injured by truck drivers and other commercial vehicles. “Teens especially need to know that there are serious consequences for reckless driving. This drop in traffic enforcement also represents a significant loss in revenue at a time when city and county budgets are very tight.”
Gregg cites an 18 percent increase in teen fatalities statewide between the first half of 2010 and the first half of 2011. Meanwhile, between 2007 and 2011 the annual number of traffic tickets statewide has dropped 10 percent. Dallas police in particular are writing far fewer citations – the 223,651 citations written in 2011 represent a drop of 170,000 citations compared to 2007. Here’s the Dallas Morning News’ take on the trend.
March 27, 2012 by Dave Moore at 12:00:00 am
Posting thoughts, photos and opinions on Facebook and Twitter has become almost second nature nowadays.
Yet seemingly offhand online comments and photo uploads can become part of the official court record, especially if they’re done in the midst of a divorce. And despite repeated warnings of the potential perils, husbands and wives continue to do so.
“We’ve been warning clients for years to be much, much more careful in their use of social media, but people in the middle of a divorce are a little bit like people in love – they aren’t always thinking straight,” said Dallas attorney Mike McCurley of the family law firm McCurley Orsinger McCurley Nelson & Downing L.L.P.
“I advise them to be super cautious about their Facebook and Twitter accounts, and anything else they may have that could show up as evidence against them,” McCurley said. “If your ex wants to find incriminating evidence, make him or her work a little harder.”
A search of social media sites has become de rigueur in divorce cases, writes MSNBC:
Oversharing on social networks has led to an overabundance of evidence in divorce cases. The American Academy of Matrimonial Lawyers says 81 percent of its members have used or faced evidence plucked from Facebook, MySpace, Twitter and other social networking sites, including YouTube and LinkedIn, over the last five years.
Given the content that Facebook, Twitter and other outlets provide, it’s no wonder they’re becoming a resource for spouses who are looking for evidence to support their divorce claims.
February 23, 2012 by Robert Tharp at 12:00:00 am
With the Gulf Oil spill trial set to start with a day of opening statements in New Orleans Monday, the Houston office of Sutherland Asbill & Brennan LLP , which represents a key player in the trial, launched a Crisis Management and Complex Litigation website to provide clients and potential clients with information on how to handle important legal problems while they continue with ongoing business.
The new website, sutherlandcrisismanagement.com, includes information on Sutherland’s crisis management team, its crisis and litigation strengths, the firm’s experience in complex crisis situations, and news articles of interest on the ‘Crisis Notes’ page.
Rachel Giesber Clingman, a lead attorney in spill trial and co-partner-in-charge of the Sutherland Houston office, says: “Our crisis team was chosen from different legal specialties among Sutherland’s offices across the country and is able to immediately address internal and external complex crisis situations for our clients.”
The Houston office is growing, see this Houston Chronicle story, and is nationally recognized in energy litigation and crisis management, energy trading and derivative contracts, and offshore marine litigation.
Sutherland’s Crisis Management and Complex Litigation Team has advised and defended clients simultaneously on multiple fronts, including parallel civil litigation and criminal investigations, multidistrict proceedings, putative class actions, congressional investigations and hearings, regulatory investigations, internal investigations, shareholder direct and derivative claims, and corporate disclosure issues.
Houston partner Steven L. Roberts, a member of the crisis management team, says Sutherland’s extensive experience in crisis situations allows the firm to immediately mobilize a targeted response for clients.
Sutherland’s crisis experience includes advising clients from a variety of industries, including an international drilling contractor in all litigation relating to the Gulf of Mexico oil spill; a privately held manufacturing company facing an antitrust problem; a NYSE-listed investment company attacked by a short-selling hedge fund; and a multinational industrial giant with revenue irregularities that were flagged on the eve of a year-end earnings release.
February 14, 2012 by Dave Moore at 12:00:00 am
Legal battles sometimes bring about unusual alliances.
Such is the case of Isabel Molina, who suffered severe burns over her face and body when the food trailer in which she worked caught fire in 2002 in Dallas. Molina sued the operator of the trailer, Juan Miguel “Mike” Bonilla, in 2003 and eventually won a $1.8 million jury verdict.
Appeals to the Dallas Court of Appeals and later to the Fifth Circuit followed, and in the process, Bonilla joined Molina in a battle to force Bonilla’s insurance company to cover the District Court's judgment. The insurance provider offered Molina a low six-figure settlement during the 10-year legal battle.
On Feb. 2 – nearly 10 years after the fire, and after all appeals were exhausted – a federal judge signed a final order requiring the insurance carrier to finally pay the amount of the jury verdict, plus $700,000 in interest.
described their client as courageous and strong in her religious faith throughout the ordeal. They hope the result would help her and her children “salvage their lives and get their lives on track.”
“It was a sad deal,” Sudderth said. “She had horrific injuries, and she never gave up, and in the end, justice was served.”
The case of Molina shows that while the wheels of justice can turn slowly, with patience, perseverance and faith, the outcome can be worthwhile.
February 2, 2012 by Dave Moore at 12:42:00 pm
The Affordable Care Act (also known as Obamacare) spans nearly 2,700 pages. So there should be no surprise that there are lots of questions about what the new law could mean for U.S. citizens who are struggling to obtain health care coverage.
Perhaps the biggest question of all is whether the law is even legal—and that question has been posed to the United States Supreme Court. Appellate lawyer and constitutional law expert Carl Cecere of the law firm Hankinson LLP recently gave a preview of the case in an interview with Jane McGarry of NBC5. According to Cecere, “The key question is … has the government gone beyond the powers vested in it by the Constitution” in enacting the law?
Cecere, who is an appellate lawyer with substantial experience in constitutional law, says that he believes that the high court will uphold the law based upon the opinions of the justices in earlier cases.
Adds Cecere, the Act’s requirement that individuals insure themselves isn’t exactly unique in comparison to other obligations the government imposes upon us, like jury service or even the draft. And he notes that even the Founders thought that the federal government could force individuals to purchase products. The Militia Act of 1792, passed by many of the same members of Congress that drafted the Constitution in 1871, required that men between the ages of 18 and 44 purchase a musket and ammunition.
Congress didn’t stop at muskets and ammo with the Militia Act:
“…Every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.
Ironically, a quarter pound of gunpowder is enough to cause a substantial health insurance claim if not handled properly.
January 27, 2012 by Robert Tharp at 1:00:00 pm
File this one under `Celebrities and Their Spouses Behaving Badly.' The charges have gotten ugly on both sides in former Dallas Cowboys star Deion Sanders’ breakup with second-wife Pilar Sanders, but the celebrity divorce filed in Dallas County also contains an interesting legal question.
In an effort to stiff-arm the prenup she signed that shields the bulk of Deion’s assets from her -- including their $21 million North Texas home -- Pilar is claiming that she is entitled to the assets because she signed the papers under duress. In this FOX Ch. 4 report, Dallas family law attorney Brad LaMorgese, of McCurley Orsinger McCurley Nelson & Downing, provides some analysis on the latest legal manueverings. See the video here.
January 17, 2012 by Dave Moore at 3:50:13 pm
We’ve all read about amnesty offered to individuals who turn in unwanted handguns and for deadbeat dads who are behind on child support payments.
Now, the IRS is offering its own sort of amnesty to employers who previously improperly classified workers as consultants or contractors, rather than as employees to avoid the costs associated with hiring them (such as unemployment, worker’s compensation and overtime).
As the San Francisco Chronicle writes:
Under the amnesty program, if an employer that is not already being audited voluntarily reclassifies its employees, it will pay a fraction of the employment taxes due for the most recent year, no interest or penalties and will not be subject to an IRS employment tax audit for past years. But it's not a get-out-of-jail-almost-free card. The employer could still be liable for unpaid state unemployment insurance and workers' compensation premiums. Workers who had been misclassified could sue to recover pay and benefits they might have been entitled to.
Reclassifying workers under the IRS program could even encourage state agencies and workers to pursue such claims…
Still, the IRS initiative has its upside, according to Todd Lowther of the Houston office of Thompson & Knight: “The program provides partial relief for eligible companies in allowing them to pay only 10 percent of the employment tax liability that would otherwise have been due in prior years. This essentially means that a business can ‘turn itself in’ to the IRS before being audited and eliminate the risk of IRS penalties for misclassifying employees.”
Lowther says, however, that companies need to consider any potential liability under state employment law before pursuing coverage under the IRS program.
January 4, 2012 by Dave Moore at 10:58:17 am
Whether it’s best movies, worst fashion trends or stock market winners and losers, this time of year is loaded with Top 10 lists. With so many former journalists in our ranks here at Androvett Legal Media & Marketing, it only makes sense that we’d throw out our own roundup of the year’s top legal moments.
On the Houston and south Texas legal landscape, the big news included a contentious fight over Houston red-light cameras, allegations of district attorney misconduct in Harris County, a money laundering conviction for one of Texas’ highest profile politicians, and the confirmation of a new U.S. attorney. To see our resulting list for south Texas, click here
High-profile bankruptcies dominated the North Texas Top 10 list, including filings for American Airlines, Blockbuster and the Dallas Stars. Others standout cases include the politically charged corruption investigation of a longtime Dallas elected official and a multimillion-dollar verdict against one of North Texas’ top private school.
It seems like it would be hard for 2012 to match last year’s intense legal landscape, but Texas never seems to fall short of courthouse intrigue.
December 21, 2011 by Robert Tharp at 4:05:51 pm
Often forgotten in divorces where children are involved is the pain suffered by grandparents. For them, emotional trauma is multiplied by the fact that grandparents are typically shut out of the legal process and have little or no control over visitation agreements.
Like many other states, custodial parents in Texas have a fundamental right to raise children any way they want, and that means being able to choose who can see their children. “For grandparents to remain in the lives of their grandchildren after divorce everyone has to remain on good terms,” says San Antonio family lawyer Amber Liddell Alwais of McCurley Orsinger McCurley Nelson & Downing. “Otherwise, their chances for visitation are severely hampered.”
If relationships with the child’s parents are strained, a grandparent’s chances for visitation are greatly eroded. Absent an invitation by a child’s caregiver, grandparents may try to petition the court to secure visitation. However, to be successful, grandparents must prove a child’s health or emotional well-being will be impaired without the time together, she adds.
“There is a lot out of your control, but it’s much easier to just stay close to your children and their former spouse so that they will want to keep you involved.”
December 20, 2011 by Dave Moore at 3:46:51 pm
The last time the U.S. auto industry saw major new safety standards put into place, the floppy disc was just coming into vogue and “Pong” was considered a cutting-edge video game.
Because science and engineering have advanced considerably in the years since then, Dallas personal injury attorney Frank Branson says it’s time for the National Highway Traffic Safety Administration to revamp its safety standards for automakers.
The most recent example of the NHTSA’s complacency centers around reports of battery fires in the hybrid Chevrolet Volt. News reports indicate that the agency knew of a fire involving the car’s battery pack as early as the spring of 2011, but didn’t report the incident until November.
Even in the late ’80s, the organization responsible for publishing Consumer Reports magazine documented the agency’s reluctance to correct industry shortcomings:
In 1988, NHTSA granted a CU petition in which we urged the adoption of a minimum stability standard to protect against unreasonable risk of rollover in all vehicles. The agency said at the time that the petition was "consistent with the Agency’s steps to address the rollover problem." But NHTSA backed away from setting a standard. In fact, in 1994 NHTSA halted rulemaking on a universal minimum-stability standard, concluding that a standard applicable to all vehicles would require the redesign of nearly all SUVs, vans and pick-up trucks – at an unacceptably high cost.
Frank Branson’s take on the agency:
“The problem with NHTSA is that no one wants to rock the boat,” Branson says. “And the auto industry doesn't want to update safety standards, many of which were written in the 1970s or before.”
The solution that Branson proposes is that consumer advocates step to the fore and take part in leadership at the safety administration.
This would reverse the current trend of individuals with ties to the auto industry stepping into that role.
Law Firm News
Tex Parte Blog
WSJ Law Blog