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Androvett Blog

by Robert Tharp at 10:02:41 am

BP Oilspill damages claims to be heard in New Orleans venue a plus for plaintiffs
The national litigation over the Deepwater Horizon environmental disaster will stay in the Gulf Coast region, now that the Judicial Panel on Multidistrict Litigation consolidated the country’s pending cases before U.S. District Judges Carl J. Barbier and Keith P. Ellison. As a result of the consolidation, all injury and economic damages claims related to the oil well blowout will be heard by Judge Barbier of the U.S. District Court for the Eastern District of Louisiana, while all investor lawsuits will be heard by Judge Ellison of the U.S. District Court for the Southern District of Texas.

Houston attorney Mark Lanier, founder of The Lanier Law Firm, filed the motion for national consolidation, and presented his case at a July 29 hearing in Boise, Idaho, before a panel of judges. Lanier argued that efficiency, economies of scale and fairness are achieved by some consolidation of cases against BP, Transocean, Cameron International, Halliburton Energy Services and others.

The New York Times reports: The choice of New Orleans is a significant defeat for BP and other companies being sued over the spill, which had asked the same panel to consolidate cases in Houston, where their headquarters are located — and where, plaintiffs had argued, they might find a friendlier legal environment.

Lanier tells the NY Times the decision to hear the cases in New Orleans bodes well for those negatively impacted by the oilspill: "[T]he decision by the panel was “logical,” but added, “BP is probably beside themselves.” In New Orleans, he said, “It will be very hard for them to find a jury that doesn’t want to hang ’em,” he said.

As for the investor cases consolidated in Houston, Lanier was quoted in a Bloomberg article saying: [T]he securities cases may have more value in the long run than the economic loss cases.”

The Lanier Law Firm represents hundreds of individuals and business owners in claims against the companies responsible for the April 20 explosion in the Gulf of Mexico, and Lanier was among the first attorneys in the nation to file suit against BP following the blast.


by Robert Tharp at 9:31:41 am

Gulf residents and businesses need to be ready to document their losses and expect a fair amount of scrutiny if they plan to seek compensation from British Petroleum’s $20 billion compensation fund, says Houston criminal defense attorney Dan Cogdell, who represented people accused of defrauding FEMA after the 2005 Gulf Coast hurricanes. The way prosecutors vigorously pursued those storm cases provides a blueprint for what could happen next, Cogdell says.

“Federal prosecutors filed charges over even a few thousand dollars thought to have been grabbed improperly,” says Cogdell of Cogdell & Ardoin. “Victims who feel massively wronged by what happened need to be careful to document everything in support of their claims, and not let the injustice of the situation lead them to bend rules and potentially wind up facing criminal charges.”

That kind of scrutiny may be difficult on those seeking quick compensation for valid claims, but it’s probably not unjustified, say experts. Even Kenneth R. Feinberg, who was appointed by President Obama to administer the fund, acknowledged that fraud is always a concern.

According to a report in the New York Times,

Nothing can undercut the credibility of a program more than the perception that you’re paying fraudulent claims,’ said Mr. Feinberg, who administered the settlement for victims of the 9/11 attacks and has done similar work for people affected by Hurricane Katrina, the defoliant Agent Orange and the 2007 killings at Virginia Tech University.

The key to fighting fraud, he said, is corroboration of large claims. Of the 7,300 claims processed in the $7 billion 9/11 fund, he said, his team determined that 35 were fraudulent. ‘Some people went to jail, others paid a fine,’ he said.

Emergency claims, which tend to be smaller, will not get that kind of scrutiny, he said. ‘You’ve got to get these payments out quicker, so people can stay in business and pay the light bill and put food on the table.

If history is precedent, though, some fraudulent claims are bound to get through. According to a 2006 report in USA Today, FEMA paid out at least $1 billion in fraudulent claims after Hurricanes Katrina and Rita. Among the Hall of Shame:

• FEMA sent $2,358 to someone who claimed a damaged house in a New Orleans cemetery.

• Another $4,358 went to a Mississippi prisoner who gave officials his correct mailing address — at the prison where he'd been locked up since 2004.

• The agency paid $8,000 for someone to stay in a California hotel for five months, all while paying $6,700 in rental assistance for the same period.

by Kassi Schmitt at 3:53:40 pm

Working mothers everywhere cheered when news broke earlier this year that a little-known aspect of health care reform legislation would grant protections to working mothers and ensure that they are provided with time and resources to pump breast milk during the work day.

Turns out, while the amendment to the Fair Labor Standards Act grants these protections to many working women, one important segment of the workforce is left out of the protections – those so-called exempt employees, executive-level workers who receive a salary rather than an hourly wage.

The legislation puts companies in a difficult position and threatens to alienate a valuable segment of their workforce, says Audrey Mross, who heads the Labor and Employment practice at Dallas’ Munck Carter. “No matter the law, companies need to ask themselves whether they really want to risk angering some of the more powerful, successful women in the building,” Mross says.  “I don’t know if that’s a policy they want to follow.” A recent USA Today article published some general information from a “Fact Sheet” the U.S. Department of Labor’s Wage and Hour Division released that states:

•Employers must provide "reasonable break time" for an employee to express breast milk. Advocates say nursing mothers need about a half-hour break for every four hours worked.

•Employers must be flexible as far as the timing and length of breaks needed by nursing mothers to express milk. Although a bathroom is not a permissible space, employers don't need a dedicated lactation center, as long as a suitable temporary space is available when needed by a nursing mother. Companies with fewer than 50 workers don't have to give breast-feeding breaks if they can show that doing so would impose an "undue hardship."

by Rhonda Reddick at 3:04:31 pm

Imagine, for just a moment, a roomful of lawyers, paralegals and legal staff forbidden from speaking. It’s not a lawyer joke – it’s one of a series of exercises that employees at Gardere Wynne Sewell LLP must complete during diversity workshops staged by the Anti-Defamation League.

There’s plenty to learn within any company about diversity and inclusion, and the ADL has figured out a way to teach this lesson in a memorable manner. For example, in the “Human Time Line” exercise, participants have to figure out how to communicate with each other and physically line up by order of firm seniority – all without speaking a word.

In other exercises designed by A WORKPLACE OF DIFFERENCE®, a program of the ADL’s A WORLD OF DIFFERENCE® Institute, participants explore “Conflict Triggers” where individual flashpoints are discussed openly in order to explore methods of effective responses to conflict.

The idea is that firm employees walk away with a greater sense of camaraderie and heightened morale. As a byproduct, the program enhances recruitment and promotion opportunities, improves client relations and customer loyalty and generally increases productivity. For more than 15 years, Gardere has required that attorneys and staff participate in the program during their first year of employment at Gardere, and the program now serves as a cornerstone for Gardere’s commitment to diversity.

“We are focused on encouraging and fostering diversity of thought, and creating a workplace that is truly inclusive,” says Managing Partner Steve Good. “This program has provided each of us with the tools and resources to better understand the needs of not only our colleagues, but our clients as well.”

by Robert Tharp at 2:00:04 pm

The law of economics and human nature seem to agree on this much: If you pay someone for reporting a crime, you’ll probably catch more criminals. With that in mind, federal lawmakers are hoping that more financial fraud whistleblowers will come forward now that they’re offering them a piece of any ill-gotten gains that are recovered.

Explains the LA Times: Tucked in the massive bill is a provision that for the first time extends a concept long applied to government contracts to the private sector. It gives whistle-blowers a mandatory 10% — and as much as 30% — of what the government recoups in fines and settlements in financial fraud cases. These can include insider trading, false earnings reports and classic Ponzi schemes. To claim a bounty, the whistle-blower must provide the Securities and Exchange Commission with "original information" that reveals the fraud and leads to a successful recovery. 

But Vivienne Schiffer of the Houston office of Thompson & Knight says that a new whistleblower incentive in the new U.S. financial reform package could work against the best interests of companies. Schiffer says that in the past, company employees might have tried to prevent corruption from occurring in the first place. But thanks to the new incentive, now they might simply wait for the right moment to dial regulators.

“Unfortunately, instead of employees working with the company to improve anti-corruption standards, I can see employees looking the other way until they find just the right economic advantage for themselves,” Schiffer says.

The SEC isn’t the only government agency in the business of rewarding whistleblowers. The Tax Relief and Health Care Act of 2006 allows the Internal Revenue Service to pay whistleblowers 15 to 30 percent of all funds recovered by the IRS when they successfully pursue a case. That program is limited to claims against taxpayers whose gross annual income exceeds $200,000 and whose potential indebtedness for taxes, penalties, and interest is more than $2 million.

More recently, the the health care reform legislation of 2011 calls for high-tech bounty hunters to root out health care fraud. According to Bloomberg: The health overhaul makes it easier for citizens to be rewarded for uncovering swindles, cuts the time before medical providers can be accused of withholding overpayments from Medicare and Medicaid, and includes pages of complicated new rules that can be broken.

by Robert Tharp at 9:09:48 am

As a reporter, Mary Flood utilized a rare combination of talents to become one of Texas’ most respected legal writers. She was a seasoned Houston Post newspaper reporter before she decided to go to law school – graduating cum laude from Harvard Law School, no less. Mary practiced law in the Washington, D.C., offices of Morrison & Foerster, and as a solo plaintiff’s attorney in Houston before she returned to journalism. She worked for The Wall Street Journal’s Texas Journal and most recently the Houston Chronicle. Flood also taught Media Law & Ethics at the University of Houston for several years while working as a reporter. 

Covering the legal beat, including the business of law, for the Chronicle, Mary developed an enviable network of sources – from judges to clerks, solos to large firms and everyone in between – and led the Chronicle’s award-winning legal coverage of the Enron scandal. She covered hundreds of trials and penned a Chronicle blog and a hard-copy column about the legal business. NPR listeners came to know Mary as the regular guest analyst who could break down the complexities of the Enron scandal in a way that common folks could understand.

Androvett Legal Media & Marketing is proud to welcome Mary to its Houston office, where she will use her news judgment and knowledge of the Texas legal landscape to help lawyers and their clients frame litigation issues and handle crisis communications and mount effective public relations, marketing and advertising campaigns.

“We’ve worked with Mary as a reporter for many, many years,” says Mike Androvett, founder and President of Androvett Legal Media & Marketing. “She is a tough journalist who always asks the hard questions and leaves no stone unturned. She’s exactly the kind of reporter we prepare our clients for, so she’s the first person we thought of to help grow our Houston office.”

by Robert Tharp at 11:14:21 am

Online travel companies like, Travelocity, Expedia and Priceline have suffered another legal blow as cities across the U.S. challenge the companies’ business models and seek to collect millions in unpaid hotel taxes. 

The latest development: a $21.2 million award for the City of San Diego based on unpaid hotel taxes.

Attorneys from McKool Smith, including Gary Cruciani and Steve Wolens, represented the city with evidence that the online travel companies failed to pay the fair amount of hotel room occupancy taxes. Instead of paying taxes on the room price they charge to consumers, the hotel companies practice has been to pay taxes only on the bulk, wholesale price they pay for rooms before reselling to customers online.

Like other California cities, San Diego required the city to first exhaust its administrative remedies before going to court. After a contested evidentiary hearing that took place in January, the Hearing Officer found that the online travel companies owe the city slightly more than $17 million in unpaid taxes in addition to $4.25 million in penalties. The award was recently disclosed in documents filed by the defendants in a related case.

The San Diego case is one of hundreds filed by cities across the country. In October 2009, McKool Smith won a $20 million verdict for the City of San Antonio and more than 170 other Texas cities in a federal lawsuit based on similar claims. In California, the firm prevailed in another administrative hearing that resulted in a $21 million award for the City of Anaheim in February 2009. McKool Smith also represents Broward County, Florida, and many other governmental entities in similar proceedings over unpaid hotel occupancy taxes.

by Robert Tharp at 4:29:51 pm


Consumer debt, it seems, is ubiquitous in the United States. While we all know about the practical reasons to avoid massive credit card debt, the big unknown is the emotional and psychological impact that debt can have on individuals’ personal and professional lives when it spirals out of control.

Last month's murder/suicide involving Coppell Mayor Jayne Peters and her daughter, Corinne, provides a grim glimpse at how debt can magnify stress and cause individuals to lose perspective. According to police reports, Jayne Peters was leading a secret life when it came to her financial situation. She was facing home foreclosure, as well as queries about her personal use of a city-owned credit card. As her financial situation reached a crisis, she fatally shot her teenaged daughter before killing herself. A city review of her municipal credit-card use indicates she spent more than $800 on restaurants between November 2009 and June 2010, when only about $100 of the charges appeared to be related to city business. Other charges included purchases at Anthropologie and Hollister clothiers.

Dallas collections attorney Darrell Cook of Darrell W. Cook & Associates says the Coppell tragedy offers valuable lessons about the stress and anxiety that accompanies people facing high amounts of debt. “Stress levels can go sky high when collections calls start coming, and people must prepare themselves beforehand,” Cook says.

One of the biggest mistakes people make is overreacting to calls from creditors, he says. “Even though most creditors are willing to negotiate, I’ve seen everything from people leaving the country to threatening to commit suicide simply because they couldn’t pay the bills,” he says.

by Rhonda Reddick at 5:09:09 pm

When the Family and Medical Leave Act (FMLA) went into effect Aug. 5, 1993, great hopes were placed on the legislation, one of the first signed by new President Bill Clinton. And with few exceptions the act has been a success in providing job protections for those facing serious health issues or who are responsible for helping seriously ill family members.

However, as the 17th anniversary approaches, it would be easy to assume employers as well as employees now have a good understanding of this important protection. But you know what they say about what happens when you assume anything.

Despite claims by the Department of Labor touting the success of the FMLA and the ease of administering associated leave, a high number of employers continue to struggle with issues such as record-keeping, determining eligibility, and coordinating with other leave and attendance policies under state and federal law. Unfortunately though there seems to always be a small percentage of workers who understand the system all too well, and take the opportunity to use it to their personal advantage.

Finding a way to deal with employees suspected of abusing FMLA protections is a continuing source of frustrations for employers who are otherwise happy to do everything possible to help when their workers need the protected leave, says labor and employment attorney Carrie Hoffman of the Dallas office of Gardere Wynne Sewell LLP. “FMLA provides few rights to employers to curb potential abuse of this very important leave, and when employees abuse FMLA it can wreak havoc on workplace productivity, leaving not only the employer, but also coworkers to suffer.”

by Robert Tharp at 11:29:51 am

While the Deepwater Horizon blowout finally appears to be contained, there’s still a steady flow of new details coming out related to the events leading up to and following the blowout and explosion.

Witnesses testified at a recent hearing held by the U.S. Coast Guard and the federal agency overseeing deepwater drilling that new mechanical and electrical problems plagued the rig. Among other things, crew members were unable to activate emergency systems that might have prevented the rig from burning and sinking to the ocean floor, says Houston attorney Mark Lanier, founder of The Lanier Law Firm.

“The evidence is clear that BP and Transocean were grossly negligent and clearly responsible for the deaths, injuries and financial losses caused by the explosion and rush of oil that’s devastating the Gulf Coast,” says Lanier. “As more facts are revealed, the culpability of these companies and others will only grow."

Now, the Houston Chronicle also is reporting that BP executives say they don't expect to be found grossly negligent, but a letter from Texas officials indicates otherwise. From the article:

According to a letter from Texas Gov. Rick Perry and Attorney General Greg Abbott, BP General Counsel Jack Lynch said in a conference call the company would be found grossly negligent. That would mean BP would face fines of up to $4,300 per barrel spilled under federal environmental laws, instead of the $1,100 per barrel for spills where the party isn't negligent.

And in a recent Reuters article looking at shareholder lawsuits against BP, Lanier had this to say about the company:

"BP was telling the world that they are really a safe company," said Houston-based plaintiffs' lawyer Mark Lanier. "What was being told to the public -- including the shareholders -- was a fraudulent facade."

by Robert Tharp at 11:14:09 am

As the Boy Scouts of America recently celebrated its centennial in Washington, D.C., Houston lawyer and Scout historian Nelson R. Block was on hand for a book signing at the Smithsonian Museum of American History.

Block, a shareholder at Winstead PC, is co-editor of Scouting Frontiers: Youth and the Scout Movement’s First Century. Scouting Frontiers features 15 of the best papers from a 2008 symposium on Scouting history held at Johns Hopkins University, which included such diverse topics as Muslim Scouting in Wales, the growth of Scouting in Israel and Scouting in India and Australia.

Texas Lawyer newspaper recently spoke with Block about his book and the event, which helped kick off the 10-day National Scout Jamboree.

Block has been the pro bono attorney for the Sam Houston Area Council of the Boy Scouts of America for 20 years, and his work in Scouting history has been honored by Scout associations in the United States and Great Britain.

by Kassi Schmitt at 11:14:26 am


Now, more than ever, buyers of legal services are influenced by social media tools. Blogs, Twitter, Facebook, LinkedIn and Wikipedia are playing important roles in the everyday lives of law firms and the way that information is shared by members of the legal community. And here’s more proof…

Greentarget Strategic Communications, ALM Legal Intelligence and Zeughauser Group conducted a survey of 164 in-house counsel to analyze new media adoption among buyers of legal services.  Some interesting results from the Corporate Counsel New Media Engagement Survey include:

  •  Nearly 70 percent of respondents aged 30 to 39 expect their consumption of business and legal industry news through social media platforms to increase within the next six months.

  •  43 percent of in-house counsel identified blogs as among their leading sources of news and information.

  • 50 percent of in-house counsel see a future in which a high-profile blog will influence a client’s decision to hire a law firm.

  • In-house counsel usage of the big three new media platforms- LinkedIn, Facebook and Twitter- is growing for both professional and personal reasons.

  • 51 percent of in-house counsel said they would receive content from their law firms via new media platforms provided the content is relevant to their businesses.

At Androvett Legal Media & Marketing, we have expertise regarding the benefits law firms could obtain through the professional use of social media.  For more information and to visit our white paper regarding this topic, click here.

by Robert Tharp at 10:46:03 am

Dallas-based Southwest Airlines has long been viewed as a maverick in the aviation industry, still (!) offering passengers free peanuts and employing flight attendants who aren’t afraid to call you “hon.”

While Southwest is the envy of other airlines when it comes to passenger goodwill and loyalty, it can’t seem to catch a break when it comes to oversized- or inappropriately dressed passengers. Earlier this year, actor/director Kevin “Silent Bob” Smith lit up the Internet when he was forced to deplane after Southwest flight attendants told him he was too large for a single seat.The opposite occurred last week when a reed-thin 110-pound passenger flying standby was removed from a plane to make room for an obese 14-year-old who required two seats.

While Southwest is on firm legal ground, Dallas aviation attorney William Angelley says the airline could have handled the situation better. “They probably should have asked for volunteers in order to make a seat for this 14 year old,” William Angelley of  Hightower-Angelley LLP tells MyFoxDFW’s Peter Daut.

The incident occurred during boarding for a Southwest flight from Las Vegas to Sacramento. A 110-pound passenger, who was flying standby, had settled into her seat when the airplane crew asked her to deplane to make room for a 14-year-old passenger who needed two seats due to the individual’s weight.

“It’s a very sensitive issue and it’s a very real issue because the airlines have seats of certain size,” Angelley, a former Navy pilot, tells Daut. “They can’t retool these aircraft – it would be cost-prohibitive to do that.”

Angelley, who has commercial pilot ratings for both airplanes and helicopters, says Southwest Airlines acted well within its rights in removing the woman to make way for the larger passenger, who arrived late. Southwest Airlines tells Daut that the incident was atypical.

Angelley gained first-hand experience in aviation as a pilot in the United States Navy. Angelley began his career in Dallas defending aviation insurance companies, maintenance facilities and manufacturers. Using the expertise he gained during these years, he later began representing individuals and families upon joining a New York-based firm specializing in plaintiffs’ aviation litigation. He worked in the firm’s New York and Los Angeles offices and was promoted to partner during his time there. During the course of his career, Angelley has been involved in numerous commercial, military and general aviation cases.

by Robert Tharp at 3:05:17 pm

In Curious CIPRO Patent Defense, Bayer Lawyers Say That's Their Point

There was little surprise when lawyers for preaching drifter Brian David Mitchell indicated they plan to enter an insanity plea when his trial for the high-profile 2002 kidnapping of Utah youth Elizabeth Smart begins in November. After all, the insanity defense is a time-worn tool in criminal-defense circles. But such an approach is practically unheard of civil litigation, and that’s what makes pharmaceutical giant Bayer’s appeal seeking to defend the validity of its patent on the antibiotic, Cipro, so curious.

As BNET writer Jim Edwards notes in his recent blog post, Cipro lawyers are throwing two Bayer executives under the bus in a unique way, saying the two concealed or failed to disclose important evidence because they suffered from a laundry list of mental impairments

As Edwards explains: “In an appeal filing in a California state court, Bayer purportedly claims that two executives who may have concealed evidence showing its patents on Cipro were invalid must be mistaken because they suffer from ‘depression,’ ‘confused thinking,’ were elderly, had a ‘cerebral hemorrhage’ and ‘Parkinson’s or related degenerative disease involving extreme mental degeneration.’”

The novel defense was identified in an appeal filed by plaintiffs’ attorney Dan Drachler and his team from Zwerling, Schachter & Zwerling that has its own unique twist.

The appeal was initially filed under seal, based on an order in the original California court that was designed to protect “sensitive” business information. But at Drachler’s insistence, the seal was vacated July 2, allowing Bayer’s “insanity” defense and the full accounting of the millions of dollars involved in “pay to delay” agreements with generic manufacturers including Barr (now Teva) to come to light.

The full unredacted filing can be found here, with the formerly sealed information highlighted.

by Robert Tharp at 1:41:48 pm

As a nationally respected life coach and family law attorney, Dallas attorney Mary Jo McCurley has plenty to say about tackling life’s challenges and finding success and fulfillment along the way.

Now, McCurley, a partner in McCurley Orsinger McCurley Nelson & Downing, has teamed with four other women’s health experts to publish “A Happy, Healthy You: A Woman’s Guide to Happiness, Health & Harmony.” Together with two medical doctors, a psychologist and an exercise physiologist, these women share their knowledge on how women over 35 can make the second half of their lives better than the first.

Some of the points the women discuss in their new book:

  • The importance of “owning” your life, and what a positive, optimistic approach can mean.
  • How to protect yourself from conditions like osteoporosis, heart disease and breast cancer.
  • The importance of movement and its life-improving effects.
  • How relationships can affect your health.
  • The spiritual journey you take as you age gracefully – and successfully

"This book is about more than possibilities," says co-author Mary Jo McCurley. "It's about making life choices that make us younger than our years and help us, with each new day, to look forward to what life has to offer. It is within our control to be happier, healthier, and more in harmony with our world."

by Robert Tharp at 4:27:41 pm


That your e-mail inbox isn’t completely hobbled by the daily tsunami of spam e-mail messages can be traced back to a little-known inventor named Robert Uomini and his company, InNova Patent Licensing LLC. InNova holds U.S. Patent No. 6,018,761, which covers technology that enables computers to weed out all those bogus Viagra messages and great deals on discount watches. The patent was awarded to Mr. Uomini, an inventor and mathematician, nearly 15 years ago when Internet e-mail was still in its formative stages.  

This week, InNova filed a lawsuit against 36 companies accused of violating the patent. Patent-infringement attorney Christopher Banys of The Lanier Law Firm, lead counsel for InNova, recently told The American Lawyer magazine that e-mail as we know it would stop working without InNova’s patent. From the article:  “Banys told us it's impossible to overestimate the importance of InNova's patented system. ‘If we didn't have this technology in e-mail, the volume of spam online would make it virtually unusable,’ he said.”

The lawsuit, filed in the U.S. District Court for the Eastern District of Texas in Marshall, names some of the world’s most recognizable companies as defendants, including Apple, JC Penney Co., Google, Dr Pepper Snapple Group, Inc., Frito-Lay, Inc., Bank of America Corporation and more. Why so many companies? From The American Lawyer: “InNova spent more than a decade trying to persuade operating companies to acknowledge the value of Uomini's patent before deciding it had no choice but to sue.”

The case is InNova Patent Licensing, LLC v. 3Com Corporation, et al., No. 10-cv-251.

by Scott Holcomb at 10:24:55 am

Founding partners Deborah Hankinson and Jeffrey Levinger of the Dallas-based civil appellate firm Hankinson Levinger LLP earned yet another top ranking to add to their list of achievements.

They were recognized as two of Texas’ top appellate lawyers in the Chambers USA 2010 legal directory.

Chambers USA is an annual U.K. based publication that recognizes the top business law firms and leading individual attorneys in the United States.  Their selection for this prestigious honor was based on in-depth interviews with both peers and clients.

The publication stated that the “incredibly talented” Deborah Hankinson “is recommended for her intimate knowledge of judiciary procedures and her seasoned approach” while Jeffrey Levinger is cited as a “highly experienced, talented and knowledgeable appellate specialist.”

This honor is just one of their latest as both have been named among Texas’ top lawyers in the Texas Super Lawyers list since it was first published in 2003 and have both been recognized in The Best Lawyers in America.

Additionally, Ms. Hankinson has been listed as one of D Magazine’s Best Women Lawyers in Dallas and is ranked by Texas Lawyer newspaper as one of the state’s “Go-To” appellate attorneys. And Mr. Levinger, who serves as Chairman of the State Bar of Texas Committee on Pattern Jury Charges, was named to “The Defenders,” an elite list of North Texas’ top business defense attorneys published by the Dallas Business Journals earlier this year.

by Robert Tharp at 3:04:34 pm

McKool Smith has added two veteran litigators and a former federal bankruptcy clerk in the firm’s rapidly growing Houston office.  It’s another signal that law firms without a banking clientele or traditional expertise in bankruptcy matters can experience rapid growth through the bankruptcy sector. As The Wall Street Journal reported in April, larger full-service law firms are increasingly running into conflicts of interest and can’t bring litigation against banks and other financial service firms that are current or former clients, a situation further complicated by consolidation in the banking business. Those ethics rules have opened the door for midsize trial firms such as McKool Smith

Writes the WSJ’s Nathan Koppel: Big blue-chip law firms are losing potentially lucrative assignments to smaller firms even as the industry sees a spike in lawsuits against banks stemming from the financial crisis. The reason for the change: ethics rules that govern conflicts of interest for lawyers and their firms. Law firms usually can't sue or investigate banks that they have represented, unless the clients take the unusual step of waiving the conflict. Thus, many small to midsize firms, which count fewer banks as defense clients, are filling a growing demand for conflict-free lawyers able to file lawsuits against banks.

Consolidation in the banking business has made it only harder for law firms to handle lawsuits against banks. It is increasingly difficult, lawyers said, for firms to find a major bank they haven't represented at some point. As a result, they are bumping up against the conflict-of-interest rules formulated by the American Bar Association and state bar groups.

“The addition of these three excellent lawyers is part of our overall goal to become one of the top bankruptcy shops anywhere in the country,” says Hugh M. Ray , a veteran bankruptcy attorney who joined McKool Smith in October of last year to establish the practice and manage the firm’s Houston office. “With bankruptcies and related litigation on the rise, and more and more law firms facing client conflicts in bankruptcy-related work, we expect to grow our group significantly in the coming months.”

Christopher D. Johnson, Ruth A. Van Meter and Nicholas Zugaro collectively bring more than 30 years of bankruptcy experience to McKool Smith, having represented Chapter 11 debtors, official unsecured creditors committees, creditors, and Chapter 7 trustees in significant cases heard in federal bankruptcy courts across the nation.

by Robert Tharp at 11:23:08 am

Brad LaMorgese

When divorce, child custody and other family law matters turn nasty, family law attorney Brad LaMorgese says the allegations rarely involve the kind of he-said she-said allegations alone like they did just a few years ago. Today, juries considering family law cases routinely consider text messages, social media postings and other electronic communications.

In fact, rude, taunting and threatening text messages have become the weapon of choice among parties going through divorce. The Washington Post noted last month how text messages are incleasingly used by estranged lovers and those trying to harass.

Harassment is "just easier now, and it's even more persistent and constant, with no letting up," says Claire Kaplan, director of sexual and domestic violence services at the University of Virginia, which became the focus of national attention in May with the killing of 22-year-old lacrosse player Yeardley Love.

Estranged spouses increasingly harass each other with direct messages sent at all hours, and their current flames often jump in by sending salacious photos meant to enrage the ex. "Needless to say, text messages provide useful evidence," says LaMorgese of McCurley Orsinger McCurley Nelson & Downing. "Texting can show a track record of harassment, rude behavior or activities that are not reflective of good parenting. The contents of these messages can be pivotal in property division and child custody cases." Such messages are on the rise and expected to become even more pervasive simply because wireless technology makes this form of communication so easy.

by Robert Tharp at 2:41:35 pm

The Chicago Tribune reports that even by colorful Chicago criminal court standards, former Illinois governor Rod Blagojovich and his defense team schooled in what the Trib describes as a “razzle-dazzle legal style of Chicago's Criminal Courts Building” are taking things to a new level outside the courtroom. Writes the Tribune: Blagojevich has been on a barnstorming publicity blitz ever since his 2008 arrest and subsequent ouster from office, and prosecutors have raised hardly a peep as they likely kept a close look out for potentially incriminating statements he might utter on talk shows and "The Celebrity Apprentice." Now the former Illinois governor is a criminal defendant, but in many ways he continues to act more like a candidate for public office rather than a candidate for a long prison term.

Blogo's tongue wagging outside the courtroom finally led prosecutors to seek a gag order, a move that was ultimately denied by U.S. District Judge James Zagel. Facing hours of incriminating wiretap recordings and a list of co-defendants turned witnesses in his high-profile public corruption trial under way in Chicago, attorney Renee Skinner says one of Blagojevich’s central weapons will be his legal team’s ability to connect with the carefully chosen jurors who will ultimately decide his case. “Jury selection is an enormously important part of any trial,” says Skinner, of Fish & Richardson in Dallas, who frequently conducts mock trials, jury research and witness preparation in advance of trials. “Before trial testimony even begins, cases can be won and lost in the selection of jurors. And once a trial is under way, successful lawyers know that that connecting with jurors is the number one goal.”

by Robert Tharp at 11:07:44 am

Ah, summertime…roadtrips, blistering heat and tire blowouts. Despite all of their techological advances summer heat still does a doozie on tires, something that’s already become devastatingly clear this summer, when car crashes caused by blowouts claimed the lives of people in two separate California incidents. The Minneapolis Star-Tribune notes: Tires can fail during periods of excessive heat. Due to increased friction, high-speed driving, excessive cornering and frequent braking during periods of very high temperatures can cause the tire to heat up beyond their design ratings. Once this happens, a blowout can occur.

The consumer website Angie’s List recently asked its auto experts for advice on tire safety. Among the experts’ tips are maintaining proper pressure and routinely rotating tires. Houston attorney Wesley Todd Ball of Houston’s Farrar & Ball LLP offers some additional advice aimed at keeping drivers and passengers safe. “Before any long trip, perform a detailed inspection of each of your tires, including the spare,” says Ball, who recently won a $32.8 million verdict in a tire failure lawsuit.

“Look the tire over and run your hands along the tread, checking for foreign objects, separations or bulges, which are evidence of a failure sure to come,” says Ball. “And use the top of a penny to inspect for proper tread depth. If part of Lincoln’s head is covered, your tread depth is good.”

by Robert Tharp at 10:06:51 am

For a Supreme Court nominee who failed to win Senate confirmation more than two decades ago, Robert Bork has managed to have a profound and lasting impact on the Court and its makeup. Who knew back in 1987 that Bork’s contentious hearing and failed confirmation would mark such a turning point for the way justices are nominated and the kind of candidate who rises to the top? 

Ryan Clinton, a former Assistant Solicitor General for the State of Texas and an appellate attorney with Dallas’ Hankinson Levinger, says Bork left a long list of teaching moments for presidents and nominees alike. Nominees learned that candid and controversial comments would not be rewarded during the confirmation process. Presidents learned to select nominees with little or no paper trails that might otherwise shed some light on their viewpoints.

Post Bork, nominees have sought to avoid showing their cards on specific issues by falling back on the mantra that they cannot comment on particular issues or past Supreme Court cases because those matters might one day come back before the court. Clinton says he expects to see the same strategy from Kagan.

“As with all nominees since Robert Bork, the Senators questioning her will attempt to pin her down on some of the more controversial matters that come before the High Court, but Kagan will do her best to dodge those attempts,” Clinton says. “Barring some unforeseen revelation or meltdown, however, she will most likely be confirmed — as have all Supreme Court nominees who have reached this point, with the notable exception of Judge Bork.”

Kagan has been thoroughly vetted, and thanks to the Internet, just about everything she has written or said about anything has been unearthed, Mr. Clinton says. “The biggest chink in her armor is the fact that she doesn’t have judicial experience,” he says. “But you could do much worse than a U.S. Solicitor General, a former Harvard Law School dean, a former clerk to Thurgood Marshall, and a high-ranking official in the White House.”

by Robert Tharp at 9:22:00 am

It’s hard not to covet the iPhone, a device that has almost single handedly changed the way we think about smartphones, not to mention the fundamental ways we now communicate. Now, improvements like true multitasking unveiled in the iPhone 4 released this week raise the bar even higher in terms of form and function.

But PC Magazine raises this interesting question: Did Apple designers trade safety for functionality by placing the antennae on the outside of the device in order to enlarge the phone’s battery? The magazine explains:

Over time, cell phone antennas have migrated to the bottom of the phone, to minimize the SAR (specific absorption rate) of radiation that a phone produces, and is absorbed by the head. No study has ever conclusively found – or ruled out – that SAR and cancers are not connected, and the Federal Communications Commission requires phones to be tested and the results published. San Francisco recently became the first city in the nation to propose that SAR data be published alongside the phone.

The Apple iPhone 4 produces  a maximum of 1.17 mW/g of SAR radiation at the ear, more than the iPhone 3GS and original iPhone, but less than the 3G, at 1.38 mW/g. Moving the antenna closer to the ear was "unfortunate," said Spencer Webb, president of AntennaSys, an independent antenna consultant and designer for mobile and other products. "And that's the best I can say."

Papool Chaudhari of Reyes Bartolomei Browne, a lawyer representing an inventor of a technology designed to minimize cell-phone radiation, went further. "I think Apple chose to sacrifice safety for better call reception," Chaudhari said in a statement. "By placing the antenna outside the housing, Apple hopes to solve the dropped-calls problem, but at what cost?"

NY Times columnist Maureen Dowd weighed in over the weekend, wondering whether some day we'll view cell phone health risks the same way we think of cigarettes today. We don’t yet really know the physical and psychological impact of being slaves to technology. We just know that technology is a narcotic. We’re living in the cloud, in a force field, so afraid of being disconnected and plunged into a world of silence and stillness that even if scientists told us our computers would make our arms fall off, we’d probably keep typing.

Chaudhari, who is involved in two patent infringement actions against 10 manufacturers, including Sony, Samsung and Nokia, notes that many have complained about dropped calls on earlier versions of the iPhone and says that Apple's decision to move the new phone's antenna outside the casing means the iPhone 4 emits more radiation near users' heads than does the previous 3GS.

by Robert Tharp at 3:34:13 pm

When it comes to the oil-and-water relationship between two of Dallas' most prominent billionaires, the newspaper headlines say a lot. Consider:

In the latest salvo this week, Dallas Mavericks' majority owner Mark Cuban's legal team lobbed a strong response to Ross Perot Jr.'s May 2010 lawsuit, which attacked Cuban's business leadership of the team and alleged that the Mavericks are insolvent.The counterclaim in a nutshell: Cuban, consistently ranked among the best owners in the NBA, says Perot is trying to offset his more than $100 million in high-profile real estate failures. Last year, Perot suffered the embarrassment of having to forfeit his stake in the 75-acre flagship Victory Park mixed-use real estate project.'s SportsMoney blog took a look at the countersuit and opined this week that it "strongly suggests not only that Perot's suit will be dismissed but that he knows as little about the NBA today as he did when he ran the Mavericks."

Cuban's countersuit is the kind aggressive all-in response we've come to expect not only from Cuban but also from Fish & Richardson's managing principal Tom Melsheimer, who is leading the charge along with M. Brett Johnson and John Sanders. The counterclaim bore another distinctive Tom Melsheimer stamp: sure it's a bulletproof piece of commercial litigation, but it also features some real zingers in plain English that turn the screws and underscore the nature of Perot's business relationship with Cuban.

Here are some of our favorites:

  • "His couch cushions having been turned over, Perot now wrongly looks to Cuban and the Mavericks as a remedy for his financial distress."
  •  "Perot's management of the Victory Park development turned out to be worse than his management of the Mavericks in the 1990s."
  •  "Perot's entities have proven that they rarely overlook the opportunity to make a buck, even at the expense of their partners."

It's one thing to file a complete and thorough legal argument within the four corners of a document - every lawyer knows that that's a prerequisite. But it's another thing entirely to communicate it in a way that's easy to understand. As legal writing guru Bryan Garner notes: Admirably clear, concise, down-to-earth, and powerful - unfortunately, these adjectives rarely describe legal writing. That's where experience comes in, whether writing or in standing up in front of a jury and getting a very complicated point across. It makes a difference.

Melsheimer's been doing that for some time now and the dividends pay off. He was part of the legal team that won a $178 million verdict against NL Industries, which came in at Number 11 in the National Law Journal's top verdicts of 2009. This year alone, Texas Super Lawyers has again placed him on its roll of top lawyers in Texas, while Lawdragon honors him among its top 500 lawyers in the U.S.

by Robert Tharp at 3:49:15 pm

This Friday, June 25, workplaces are being encouraged to "go furry" as four-legged friends have the opportunity to accompany their owners to the 12th annual Take Your Dog to Work Day. First celebrated in 1999, Take Your Dog to Work Day was created by Pet Sitters International to celebrate the great companions dogs make and to encourage their adoption from humane societies, animal shelters and breed rescue clubs.

And although having Sparky or Fifi tag along may make the work day more enjoyable, labor and employment attorney Audrey Mross of Dallas' Munck Carter says there are other important considerations, including building management, which by law is required to allow service animals, but may prohibit others. Owners must take into account the logistics, including sanitation, noise and feeding. Additionally, owners must consider their co-workers and any allergies or fears of certain breeds. "On top of that, you need to be prepared for people to go beyond just dogs," Mross says. "If one person brings in a basset hound, someone else might want to match that with his pet boa."

The opportunities for discord, conflict and comedy are limitless: dog bites boss, dog bites boss's dog, dog urinates in cubicle, dog raids break room snack closet. To prepare your best friend for this potentially difficult professional situation, the Stafford County Sun has this practical advice:

To prepare your dog for a successful day at the office, he should be comfortable in new environments and greeting strangers. That means providing lots of practice before the big day by taking him along with you everywhere dogs are welcome such as to parks, dog-friendly restaurants with outdoor seating and pet stores. When you're out and about, teach your dog to sit while being petted rather than jumping up on the greeters. This will be especially important when you take him or her to the office. Good manners will go a long way and your boss and co-workers might even invite him back again.

If your co-workers bring their dogs to work too, make sure your dog and the others are dog-friendly before allowing any interactions. The last thing you'd want to do is have a public dog fight! That would be a sure-fire way to put the kibosh on next year's event! If all the dogs are friendly and have been well-socialized, interactions should be done on leash, fully supervised, kept short and sweet (5-10 minutes at a time) and ended on a positive note. Calling your dog back to you and giving him a reward for coming when called is a great way to end a short play session.

by Robert Tharp at 2:51:10 pm

Despite last week's announcement that BP is setting aside $20 billion for the victims of the Gulf oil spill, many of the company's investors face concerns that they may be last in line for any earmarked funds or left out altogether. BP's share price hovered around $60 at the time of the spill, but since has been cut in half.
One group is attempting to protect its interests with a class-action lawsuit that says BP mislead investors about the company's ability to safely conduct it's day-to-day drilling operations and properly respond to such an oil spill. Attorneys from the New York law firm of Zwerling, Schachter & Zwerling are representing the investor group in the federal lawsuit filed in Louisiana, which covers anyone who bought BP shares from late February 2008 through mid-May 2010.
Attorney Robert Schachter, lead counsel for the investor group, tells BBC radio his clients don't aim to put BP out of business. Instead, they want the company to be responsible for statements they made before the disaster, indicating BP had learned from its mistakes - including the 2005 explosion at a BP plant in Texas City, Texas - and had the ability to handle just such an oil spill. Robert Schachter on the BBC 5 Live Program
Zwerling Schachter has handled similar cases against BP, including representing another group of investors following a 2006 oil leak that shut down BP's operations in Prudhoe Bay, Alaska. That case ended with a multimillion-dollar settlementand helped earn recognition for Schachter as one of the country's top authorities on investor lawsuits.
In the current case, Schachter represents shareholders not just in the U.S., but around the world, as The Guardian reported: But Robert Schachter, partner at Zwerling, Schachter & Zwerling, said that several British institutional investors had contacted him about joining the class action his New York-based firm recently filed. He said he was confident that at least one British investor would be named as a plaintiff next month in order to make it more likely that British institutions would share in any payout.



by Robert Tharp at 3:28:52 pm

Last week's natural gas pipeline explosion in North Texas that killed one worker and injured several others is now the subject of a lawsuit filed by attorneys from Houston's The Lanier Law Firm. The blast at Georges Creek Ranch between the towns of Cleburne and Granbury sent a pillar of flames into the air and thick black smoke that could be seen from 30 miles away. It left a deep crater extending more than 100 yards.

The lawsuit is filed on behalf of Corey Gautreaux, a Louisiana native who suffered severe burns and other bodily injuries in the June 7 tragedy. He was working with a crew from Dewey, Okla.-based C&H Power Line Construction to install electrical utility poles when a natural gas line owned by Houston's Enterprise Products Partners exploded. One of Mr. Gautreaux' co-workers, James Robert Neese, was killed, leaving behind a wife and seven children.

According to the Dallas Business Journal, the lawsuit accuses Enterprise Products of causing Gatreaux' injuries and the death of a co-worker by failing to properly mark the gas lines and by not warning the plaintiff about other similarly situated gas lines in the area. Gautreaux is accusing the gas line owner of gross negligence and is seeking damages for, among other claims, past and future physical pain, mental anguish, medical expenses, lost wages, benefits and physical disfigurement.

In an interview with WFAA TV Ch. 8, attorney Judd Waltman with the Lanier Law Firm in Houston spoke on behalf of Mr. Gautreaux and described the events that led up to the explosion. "Corey says he saw the event and heard what he describes as a loud 'thump' and saw debris and dirt flying out of the hole," Waltman said. "Immediately after that, the line ignited into a giant fireball coming toward him. He turned at that point to run as fast as he could for his life."

Now, Enterprise Products will face a trial in Harris County's 295th District Court in Houston. Earlier this month, a Harris County jury awarded $82.5 million to the family of a worker who was killed in a 2007 explosion at a natural gas processing plant near the same location.

by Robert Tharp at 12:20:32 pm

For those who make a living in the oil industry along the Gulf Coast, the financial impact of the federal government's recently announced moratorium on deepwater drilling operations promises to have a rapid and profound impact. A recent Houston Business Journal article looks at companies that will be affected by the ban and paints a picture of how the dollar figures quickly add up. Consider: 33 rigs affected by the 180-day ban charge day rates between $250,000 and $500,000 a day, adding up to somewhere in the conservative neighborhood of $10 million a day in losses.

The article also highlights how the drilling moratorium will have an impact beyond lost revenue: "Thousands of workers are off the job, dozens of rigs will sit idle and companies now are invoking force majeure clauses to get out of drilling contracts," said Jason Itkin, co-founder of the Houston-based Arnold & Itkin LLP."

The government, fortunately, has realized the pending crisis of workers off the job, and is considering making BP pay their lost wages. Interior Secretary Ken Salazar is quoted in a recent Houston Chronicle article: "BP is responsible for all the damages that flow from the BP oil spill," Salazar told a Senate panel Wednesday. "And these are some of the consequences from that oil spill."

Itkin agrees. His firm represents numerous workers and companies affected by the Deepwater Horizon explosion and ongoing oil spill. "All of these workers and companies affected by the moratorium may have a case against BP," he says. "Simply because the company decided that safety on the Deepwater Horizon wasn't as important as its bottom line."

by Robert Tharp at 11:40:59 am

It's no secret by now that our expanding use of social media networks has created a perilous and evolving landscape for businesses, institutions and regular folks. What's surprising is the myriad ways that online networks create concerns and conflicts that never existed just a few years ago. While Facebook CEO Mark Zuckerberg believes "the age of privacy is over" and there should be no distinction between a person's professional and private lives, the working world clearly has not and may never reach that degree of comfort.

Just last week the Dallas Morning News detailed how the Lewisville school district is considering a new policy that would forbid teachers and other school district workers from criticizing the district or even identifying themselves as employees of the district in their profiles and postings on social media sites. The paper also notes that the Texas Association of School Boards is drafting new policy language that addresses how employees should use social networking sites, even on their own time and on their own computers.

Meanwhile, according to the New York Times, 27 states now have some form of regulations to limit so-called SLAPP (strategic lawsuit against public participation) retaliations against consumers who post negative comments online. Federal legislation, currently in the House Subcommittee on Courts and Competition Policy, would all an individual who thinks he is being bullied by litigation for speaking out or petitioning on a public matter to seek to have the lawsuit dismissed. Finally, a report by Arezow Doost of KTVT/CBS 11 highlighted the growing trend in which businesses are using the legal system to fight negative reviews and comments on social networking sites. The broadcast notes the efforts of a Plano eye surgeon to uncover the source of a website posting critical of his services. Interviewed in the news report about this growing area of litigation, Dallas attorney Michael McCabe of Munck Carter says there are limits to freedom of speech, even on the Web. "If you make defamatory statements, that won't be protected by freedom of speech," says McCabe. "Can you be sued for it? Yes, if you are out there making defamatory statements online you very well might be sued for it."

by Robert Tharp at 11:44:16 am

FCPA Attorney Vivienne Schiffer says companies can no longer turn blind eye to overseas business practices.

The Justice Department is aggressively going after violations of the Foreign Corrupt Practices Act by hiring more prosecutors and employing unconventional techniques like undercover stings and wiretaps. The Washington Post recently reported that in the last 10 years, the number of FCPA probes going on at any one time jumped from eight to more than 130. Much of the increase in federal law enforcement scrutiny has occurred in the last year, when federal agents brought more FCPA indictments than the last seven years combined.

Writes the Washington Post: the days of doing business with a wink and a nod are over and even decisions made years ago may result in serious punishment. The effort is motivated in part by the principle that business shouldn't be conducted one way in modern countries and another way in developing nations.

No longer does the Justice Department rely solely on tips from whistle-blowers or business competitors to build cases. Today, officials are turning the tools of organized-crime investigations to anti-bribery. They are setting up sting operations, as took place in a recent investigation in which defendants from the United States, Britain and Israel allegedly tried to bribe a country's defense minister to provide access to outfit the country's presidential guard. While the FCPA is subject to a five-year statute of limitations, the government is effectively stretching that period in some cases by tacking on conspiracy charges where appropriate. So companies are looking beyond the past five years to determine their vulnerability.

Ms. Shiffer, an attorney in Thompson & Knight's Houston office, says this shift in Justice Department priorities is likely to force executives to become more focused than ever on what distant salespeople and consultants are doing to acquire new business.  "Given that 2009 was a record year for FCPA enforcement, the administration is signaling that American companies transacting any cross-border business should review and reinforce their anti-corruption policies," she says. Since 2004, the Justice Department has levied $1.5 billion in fines in more than two dozen FCPA cases, and more than 80 individuals have been charged. "It appears that charging individuals is a deliberate enforcement strategy and corporate punishments are also severe, whether or not the company and its officers even knew of the violations. ‘Paper programs' that sit on the shelf without effective implementation are not sufficient."


by Robert Tharp at 3:44:15 pm

Summer arrived early in Dallas this year with temperatures breaking the 100 degree mark by the first week of June. The relatively early heat wave counldn't have come at a worse time for residents of The Chevelle apartments in the Oak Lawn neighborhood just north of downtown.

As noted by WFAA TV Ch. 8 reporter Cynthia Vega, air conditioning at the complex stopped working as temperatures hovered around the dangerously high century mark. With tenants spending sleepless nights outside on porch stoops and grumbling over the property owner's slow response, Vega turned to noted Texas landlord lawyer Darrell Cook, founder of Darrell W. Cook & Associates, to explain the rights tenants have in such situations.

Cook, who frequently works with property owners but is not involved in this case, knows from experience what does and does not work in these contentious landlord-tenant conflicts. His advice for tenants: don't wait for the courts to step in, but instead go directly city code enforcement officers. City code requires apartment landlords to keep property under 85 degrees, and code enforcement officers can work with city attorneys to obtain a restraining order to force landlords to quickly make emergency repairs.

Finally, Cook, the founder of, advises that tenants who withhold rent during such disputes lose their bargaining power.

by Robert Tharp at 4:19:38 pm

File this one under: Be careful who you sue for trademark infringement.

A federal district judge's ruling has closed a chapter on a long and hotly contested trademark fight between retail giant Liz Claiborne's Lucky Brand Dungarees and Miami-based Marcel Fashion Group. Judge Laura Taylor Swain's final judgment uphold's an earlier verdict against Claiborne and goes further, tacking on nearly $300,000 in punitive damages.

According to the Associated Press: In the decision, Judge Laura Taylor Swain ruled Lucky Brand's name along, with its use of the phrase "get lucky" and other references to "lucky" violate a trademark for Marcel Fashion Group's "Get Lucky" clothing line. Swain's ruling does not prevent Liz Claiborne from continuing to use the Lucky moniker. But Ann Schofield Baker, head of McKool Smith's national trademark litigation practice who represented Marcel in the case, said if Liz Claiborne continues to use of the name and slogan it would be a continued violation of Marcel's trademark.

The jury's verdict and the court's Final Judgment turned the tables on Lucky Brand and Liz Claiborne, which were the parties that originally brought the suit against Marcel Fashion and its licensee, Ally Apparel, for trademark infringement in 2005 over their GET LUCKY line of apparel. The jury cleared the GET LUCKY line of any trademark infringement after finding that Marcel Fashion had been using the trademark "GET LUCKY" continuously since 1985, years before Lucky Brand was even formed.

"This is a complete victory for the little guy," says Ezra Mizrachi, President of Marcel Fashion. "Lucky Brand and Liz Claiborne tried to put the GET LUCKY apparel line out of business with this lawsuit, but instead, the jury decided that they are the ones who committed trademark infringement."

The punitive damages award follows on the heels of the Court's award of sanctions against Lucky Brand and Liz Claiborne for their repeated and flagrant discovery violations during the litigation. Schofield Baker sums up the case this way: "Lucky Brand brought this suit, but at the end of the day, it breached a prior settlement agreement between the parties, committed trademark infringement and unfair competition by using the Lucky Brand trademark, and was smacked with sanctions and punitive damages. My clients feel completely vindicated and look forward to expanding the GET LUCKY licensing program."

by Robert Tharp at 3:22:05 pm

A Dallas County jury delivered a real eye-opening verdict in a labor & employment/discrimination trial against one of the most prestigious learning institutions in Texas.

Double board certified in internal medicine and infectious disease medicine, Dr. Naiel Nassar has the kind of impeccable credentials that made him a hot commodity in the medical research institutions. Recruited by the University of Texas Southwestern Medical Center's HIV clinic, he became one of its top physicians. Dr. Nassar also happens to be Muslim and an Egyptian native.

Dr. Nassar's racial and religious background, and the treatment he received from UT Southwestern mangers, took center stage earlier this month at a federal trial in Dallas over the hospital's discrimination and retaliation. Attorney Charla G.Aldous of the Aldous Law Firm in Dallas and Brian Lauten of the Dallas law firm Sawicki & Lauten represented Dr. Nassar in his claims against UT Southwestern.

The jury in U.S. District Judge Jane Boyle's court took just 45 minutes to find that the hospital discriminated and retaliated against Dr. Nassar because of his race and religion, and awarded him $3.6 million in damages.

Writes At trial, jurors heard evidence that Dr. Nassar became a target of systemic discrimination under Dr. Beth Levine, Chief of Infectious Disease Medicine, beginning in 2004. Attorneys alleged that Dr. Levine made numerous discriminatory comments about Dr. Nassar and other physicians of various racial and religious backgrounds.

Trial testimony also showed that Dr. Levine delayed promoting Dr. Nassar based on his race and religious beliefs. Subsequently, Dr. Nassar resigned from UT Southwestern to take a new position at Parkland Hospital. In a letter of resignation to Dr. J. Gregory Fitz, Dean of the UT Southwestern School of Medicine and Executive Vice-President for Academic Affairs. Dr. Nassar made it clear that he was resigning because of ongoing racial and religious discrimination.

Drs. Levine and Fitz then worked to block Dr. Nassar from taking the new position at Parkland Hospital by refusing to give him a favorable recommendation and warning Parkland not to hire him. Because of these coordinated efforts to undermine his offer from Parkland, Dr. Nassar was forced to take a position at a hospital and medical school in California.

The verdict in Naiel Nassar, M.D. v. University of Texas Southwestern Medical Center, et al., No. 3:08-cv-1337, was reached May 26, 2010, in the U.S. District Court for the Northern District of Texas.

by Robert Tharp at 4:05:20 pm

The first two weeks of May 2010, respectively ranked as Nos. 1 and 2 in terms of the most patents granted in a single week by the United States Patent and Trademark Office. That trend shouldn't be surprising says Jane Politz Brandt, a partner and co-chair of the Intellectual Property Practice Group at Thompson & Knight. Speaking at the Texas Lawyer Intellectual Property Law Roundtable in Dallas, Ms. Brandt noted that the rising number of patents issued is reflective of the current process at the USPTO.  

"The patents being issued today may have been filed as far back as 2007, before the present economic environment. Before the current financial crisis, many U.S. companies were making heavier investments in research and development, and you saw a higher number of patent applications," she says. "Aaron Levine noted that it takes four or five years for those applications to gain approval. Steve Kennedy commented that this is indicative of the problem that many see in the Patent Office - the process simply takes too long."

Ms. Brandt notes the lag time for patent approval is a particular problem for small companies. "These companies many have an outstanding product, something that's truly beneficial to society, but the process can lead to frustration and failure, especially for those seeking venture capital."

Earlier this week, Representatives John Conyers Jr., a Michigan Democrat and chairman of the House Judiciary Committee, and Lamar Smith of Texas, the ranking Republican on the committee, introduced the Patent and Trademark Office Funding Stabilization Act. The bill seeks to address some major complaints about the USPTO, including a patent application backlog of more than two years.

The bill would allow the USPTO to impose a temporary 15 percent increase on its patent fees, and it would prohibit Congress from diverting patent fees away from the agency. In addition, the bill would allow the USPTO to hire new patent examiners and improve patent quality. Members of the Senate Judiciary Committee have long tried to reach consensus on a more wide-ranging patent bill, which would allow new challenges to granted patents and would make it tougher for patent holders to prove willful infringement and collect huge damages. That bill, introduced in March 2009, is awaiting full Senate approval, but there remain several disagreements about the legislation. Similar bills introduced in 2005 and 2007 also went nowhere.

by Robert Tharp at 11:07:29 am

When Gilberto Villegas was seriously injured in a 2008 industrial accident while working at APM Terminals' marine terminal at the Port of Houston, the international container terminal operating company offered to pay Villegas only $35,000 compensation for his injuries. Harris County jurors had a different idea regarding AMP Terminals' responsibility for Villegas' injurires. After six days of testimony, jurors handed down a $1.55 million verdict against AMP earlier this month.

Writes Lexis/Nexis: Villegas suffered injuries to his neck and other areas on May 29, 2008 while he was working as a ship repairman at APM Terminals' marine terminal at the Port of Houston. He was standing in the bed of a pickup truck when a yard truck driver working for APM Terminals collided with his vehicle.
APM Terminals argued that its driver was not at fault because the pickup truck was parked in the middle of an intersection. The company also argued that there was only a minor impact because the yard truck driver was traveling at 1 or 2 mph at the time of the accident.
Villegas' lawyers advised him to press his case despite claims by the company, APM Terminals, that it was not at fault. Lawyer Jason Itkin said the company's highest settlement offer was $35,000. "We're proud to have stood by our client and proud to have gotten him the compensation he deserved," Jason Itkin said

Villegas' attorneys alleged that the driver APM Terminals authorized to operate the yard truck was not licensed. In a complaint filed in the case, Jason Itkin and Cory Itkin of Houston trial law firm Arnold & Itkin LLP alleged the company "knew or should have known that (the driver) was an incompetent, reckless driver, and/or unlicensed driver at the time of the entrustment."  Although Villegas required neck surgery after the accident, APM argued that he had suffered neck pain prior to the accident.

"As recent events have shown us all, maritime workers face some of the most dangerous working conditions anywhere," says Jason Itkin, co-founder of Arnold & Itkin. "That's why it's so important for companies to provide safe work sites and make sure their employees are following proper safety protocols."

"On behalf of the entire Villegas family, we would like to thank the jury for holding this company accountable," says Cory Itkin. "Without the jury's help APM would have gotten away with this and swept Mr. Villegas and his case under the rug."

by Robert Tharp at 3:21:21 pm

Those new, relaxed privacy settings implemented by Facebook should be raising serious concerns for the more than 400 million members who use the popular social media network. Granted, Facebook includes plenty of narcissists who have no problem with attention from strangers, but until now the rest of us could enjoy some expectation that their posts and photos could be limited to a group of self-selected friends.

Computer forensics and data security expert Erin Nealy Cox, managing director of Stroz Friedberg's Dallas offices, says users are now far less able to control who views information about their friends, photos, group memberships and dialogue, as well as Facebook's ability to share this information with advertisers, serach engines and other social media networks. "Millions and millions of Americans have grown accustomed to sharing personal information on Facebook," Ms. Nealy Cox says. "Many people have jumped in with the belief that they can control access to their information. These changes should spur all Facebook users to carefully review their account settings."

San Francisco Chronicle columnist Yobie Benjamin recently tested Facebook's new privacy filter and came away less than impressed. His conclusion: Despite his best efforts to jump through all of Facebook's new hoops and keep his Facebook activities private, his postings remained available for the world to see.

Benjamin writes: In reality the problem is the overly complex privacy settings Facebook has implemented. Facebook's privacy policy was created by an army of lawyers to avoid litigation and regulatory scrutiny. It was not created for you or the 10-year old next door. There is no good reason why Facebook privacy settings should be so hard to understand.
Facebook or any other company cannot promise consumer privacy protections and then ignore them and make all the information you want to be private - PUBLICLY AVAILABLE. I can't say why this was done but my guess is it's to allow third parties such as advertisers to harvest personal information and create more targeted ads and services. If you make promises to your customers, keep them. Otherwise, they leave.

by Robert Tharp at 2:43:06 pm

Dallas lawyers Richard A. "Dick" Sayles and Mark S. Werbner have earned a multimillion dollar patent infringement verdict against one of the world's biggest tech companies. The case, tried in the Eastern District of Texas in Marshall, Texas, hinged on allegations by Commil USA LLC that Cisco Systems Inc. had stolen patented technology relating to wireless devices. The Marshall News Mesenger reports that jurors deliberated about 3 hours before ruling in favor of Commil and ordering Cisco to pay $3.7 million in royalties. 

The Commil USA technology contained in U.S. Patent No. 6,430,395 (the '395 patent) was developed by three Israeli engineers, Yaron Soffer, Nitzan Arazi and Haim Barak, who later formed Commil with a group of investors. The technology in the '395 patent allows wireless devices to move from point to point on a computer network without signal interruption. Prior to this groundbreaking invention, network users experienced frequent signal disruptions leading to data losses, dropped calls and other errors.

Although the '395 patent applies to many network platforms, including Wi-Fi, the three engineers initially developed products based on Bluetooth technology. When Wi-Fi eclipsed Bluetooth in the marketplace, Commil was forced to close its doors and the company's assets were purchased by Commil USA. The lawsuit was filed after Commil USA discovered its technology was being used by a Cisco subsidiary to produce its own Wi-Fi product line.

"We took this case to trial on behalf of hard-working inventors everywhere - whether they're highly trained engineers or garage tinkerers," says Commil USA CEO Jonathan David. "The jury was right to find that Cisco infringed our valid patent, and we believe there will be additional opportunities to determine whether additional damages should be awarded as this case continues through the legal process."

In June, Sayles won the largest patent verdict to date of $1.67 billion in an infringement case that pitted his client, Pennsylvania-based Centocor Ortho Biotech Inc., against giant Abbott Laboratories.

by Robert Tharp at 9:52:39 am

There is a fascinating story by Patricia Montemurri over at the Detroit Free Press regarding new protections in the Health Care Reform Act for working moms who are breastfeeding their newborns. Provisions within the legislation regarding breast pumping in the workplace have flown mostly under the radar. Writes Montemurri: The legislation directs employers with more than 50 workers to provide a private, on-site nursing space and "reasonable" unpaid time to pump milk. But the legislation, which went into effect in March, is raising a host of questions: Do employers have to build lactation lounges? Should pump time be included in daily work schedules? 

Advocates are urging the U.S. Department of Labor to quickly issue guidelines. Most health experts and working moms agree that the legislation not only will provide health benefits, but also boost a company's bottom line." 

Over at Gardere Wynne Sewell LLP in Dallas, employment attorney Carrie Hoffman says there are still some loose ends still to be worked out in the law, but it is a big step forward for those trying to juggle a career with the care of an infant. "U.S. Department of Labor has not yet defined what ‘reasonable' is in this scenario and the provided break time will be unpaid, but there is apparently no limit on the number of legitimate breaks that can be taken to express milk other than reasonableness," she said, adding that another benefit to employees is that companies must make a private area available to the mother. "Not everyone has the luxury of having an office that they can retreat to, so it provides an important level of dignity to have a place to go to that is sanitary and not open to coworkers."

by Robert Tharp at 4:04:53 pm

Five profoundly disabled residents of the Corpus Christi State School will get their day in court, now that a federal judge has ruled that a civil lawsuit over videotaped fights inside the school can proceed. The five residents claim they were forced into brutal on-camera fights by school employees, and they allege that the State of Texas, school leadership and the state agency responsible for caring for the mentally disabled violated the residents' constitutional rights to safe conditions and protection from harm.

In the ruling, the court rejected attempts by four defendants to claim qualified immunity from the lawsuit based on their roles as government employees. The defendants include Adelaide Horn, former Commissioner of the Texas Department of Aging and Disability Services (DADS); Barry Waller, former Assistant Commissioner, Provider Services of DADS; Denice Geredine, former Director of State Schools; and Iva Benson, former Superintendent of the Corpus Christi State School. The case is now set for trial July 2.

Writes the Austin American-Statesman: Lawyers for the residents argue that the officials should have known before the 2008 and 2009 fight club incidents that more security was necessary, in part because of a Department of Justice investigation that began in 2005 that concluded that the 13 Texas facilities fail to protect residents from harm. The Justice Department is still monitoring the facilities, now called state supported living centers, which are home to 4,300 Texans. In 2007, there were 1,013 allegations of abuse, neglect or exploitation - and 51 confirmed cases - at the 430-bed facility, according to court documents. That year, administrators had seen enough of an increase in horseplay that a facility official sent a warning to staffers that such incidents would not be tolerated.

Attorney Bob Hilliard, a founding member of Hilliard Munoz Guerra, is part of the team representing Armando Hernandez, David Hernandez, George Brazil, Angel Jose Mata and Christopher Norris. In related litigation, four former state school employees previously have been convicted on charges of injury to a disabled person. Another former employee is still awaiting trial.

by Robert Tharp at 2:13:33 pm

When Lucky Brand Dungarees (a subsidiary of Liz Claiborne Inc.) filed a trademark infringement lawsuit against Marcel Fashion Group back in 2005, the company claimed its "Get Lucky" slogan had been infringed. Jurors in a New York courtroom saw things a little differently after hearing testimony that it was Marcel Fashion that had first registered the "Get Lucky" trademark way back in 1985.

For Lucky Brand, the tables finally turned on April 22 when jurors in the U.S. District Court for the Southern District of New York ruled in favor of Marcel Fashion, finding that Lucky Brand actually was the infringer in this trademark dispute. Noted trademark attorney Ann Schofield Baker of McKool Smith led the trial team in a legal battle that spanned 12 years. When the dust settled, jurors agreed Lucky Brand should pay $300,000 to Marcel Fashion after determining that the company infringed the "Get Lucky" trademark in its advertising and in clothing and perfume products.

This is just the latest in a string of court victories that Schofield Baker has secured in this case. When asked by The American Lawyer this time last year about the David vs. Goliath aspects of this case, she offered this gem: "Yeah, but you know what?" she said. "David is kicking ass."

by Robert Tharp at 11:34:24 am

Automotive experts have begun inspecting Koua Fong Lee' 1996 Toyota Camry involved in a fatal crash in Minnesota four years ago, and new evidence may be coming to light helping support Lee's claims of innocence. Lee, 32, was convicted of criminal vehicular homicide in October 2007 and sentenced to eight years in prison after a jury found him responsible for causing a crash that killed three people.

His conviction and prison sentence are now in doubt following widespread accounts of unexplained sudden acceleration by Toyota vehicles and new evidence about the circumsances surrounding the crash. Lee has said all along that he lost control of the car and couldn't get it to stop. The Associated Press reported yesterday that an investigator believes that Lee in fact did have his brakes engaged at the time of the collision. Additionally, a recently-released letter from Mr. Lee's former attorney has surfaced, showing evidence that Lee was indeed hitting the brakes on his car at the time of the accident. It's unclear why jurors in Lee's trial were not provided this information.

Attorneys  Robert Hilliard from the Corpus Christi, Texas-based law firm of  Hilliard Muńoz Guerra LLP and Brent Schafer of Minneapolis's Schafer Law Firm say an inspector they hired to examine Lee's car has found possible problems with the cruise control.

In an op-ed piece in the Minneapolis Star-Tribune, Hilliard urges Ramsey County Attorney Susan Gaertner to free Lee. "Mr. Lee remains in jail -- for an event that in no way should have been considered a crime," Hilliard writes in the article. He goes on to say that "At the time, no explanation made sense. Now, there is a sensible explanation. A truthful explanation."

by Robert Tharp at 10:52:50 am

Attorney Michael Hurst: Bid process unfair and should be voided
Work on a Dallas county hard copy records preservation contract came to a screeching halt Monday after a Dallas district judge determined that county officials did not follow proper competitive bidding requirements last year when it awarded a $17.3 million records preservation contract and issued an injunction.

The Dallas Morning News reports that District Judge Bruce Priddy ordered the county and its contractor, GTSI Corp. and its subcontractors, AmCad and Louisiana Binding Services, to immediately stop work on the contract  to preserve various historical records such as property deeds. The lawsuit filed by Business Resources Corp. alleges the county tried to justify bypassing state law by "piggy-backing" the contract on an unrelated national purchasing agreement. The judge found no evidence that any governmental agency or purchasing organization sought competitive bids as required for the specific services covered in Dallas County's contract with GTSI.

"It's apparent that Dallas County officials either willfully disregarded the law or were misled about how the contract was awarded," says attorney Michael Hurst of Dallas' Gruber Hurst Johansen & Hail LLP and counsel for Business Resources. "Based on the ruling we hope the county will cancel the existing contract and follow Texas law."

Judge Priddy had some harsh words for the way the contract was initially awarded. "The (competitive bid) process was not followed," the judge said in issuing his order, adding that the pricing agreed to in the contract was not a consideration, but that the relevant issue was the failure of the county and GTSI to follow Texas Local Government Code statutes. "GTSI was aggressively trying to use an exception in violation of Texas law."

by Robert Tharp at 10:16:50 am

Just recognized in The National Law Journal for winning more of the country's Top 100 verdicts than any other law firm for two years running, McKool Smith is continuing the firm's push as a national litigation powerhouse with the promotion of four attorneys to principals and the addition of six experienced lawyers in the firm's rapidly growing New York office.

New principals  Laurie Gallun Fitzgerald and Joel Thollander practice in McKool Smith's Austin office, and  Darryl Burke and Garret Chambers practice in Dallas. In New York, the firm has added Sachin Bansal, John C. Briody, Yusuf A. Rangwala, Elizabeth Raskin, Kevin Schubert and James H. Smith as associates.

With the latest additions, the firm now has 25 attorneys practicing in New York after opening the office in late 2007. New York principal Hugh Ray, who also practices in McKool Smith's Houston location, recently was featured in a story published by The Wall Street Journal that examines how firms like McKool Smith are increasing their bankruptcy litigation workload because of the many client conflicts faced by larger law firms.

by Robert Tharp at 12:06:48 pm

It's easy to lump law school students into one big me-generation cliché.  Gardere Wynne Sewell LLP established the McCleary Gardere Leadership Scholarship to identify second-year law students who are committed to the kind of leadership, community values and diversity championed by the firm's popular former co-managing partner.  

The 2010 recipient of the Donald C. McCleary Gardere Leadership Scholarship is Rebekah Bailey. Rebekah, like past scholarship winners, was selected following a rigorous review that considered the applicants' character, academics, leadership, and involvement with the law school and community. Not only is she in the top 25 percent of her law school class, she has served as an intern at the Human Rights Initiative of North Texas, and spent six months as an intern at the International Criminal Tribunal for the former Yugoslavia. She also co-founded the Cornerstone Kids Weekend Ministry at Cornerstone Baptist Church in Fair Park, providing a safe and stable environment for children.

"Rebekah's involvement in law school and the community is impressive," says Gardere managing partner Steve Good. "She embodies the spirit of leadership and community involvement that Don McCleary hoped to inspire. We feel that she is a fitting recipient of this honor." 

In an interview with the SMU Daily Campus, Bailey described her strong desire to better the community. “My mom has been involved in non-profit work as long as I can remember and she inspired me to do the same,” she said. “Given the unique way the law intersects every aspect of life, there are great opportunities to serve the community with and through a career in law.”

Mr. McCleary, who passed away in 1996, served as the firm's co-managing partner from 1991 to 1995. During his brief tenure leading the firm, he championed diversity and promoted a concept of leadership rooted in the belief that a shared vision was the basis for a successful law firm. 

Mr. McCleary's vision for Gardere included participation in local, state and national public affairs, humanitarian activities and pro bono work, and he encouraged everyone to get involved. Among other things, he established many of the community outreach programs that have become a hallmark of the firm, including the Annual Gardere MLK Jr. Oratory Competition, which was launched in Dallas in 1993, and GardereProud, which honors the military service of firm members and their families.


by Robert Tharp at 10:36:50 am

Lanier: Toyota's problems go beyond sudden acceleration
Renaming allows plaintiffs to address automaker's concealment of vehicle defects
The national litigation over recalled Toyota vehicles has been consolidated in the U.S. District Court for the Central District of California, and the litigation has been renamed based on a request from noted Houston attorney Mark Lanier.

The federal judicial panel overseeing the litigation granted Lanier's request to rename the litigation "Unintended Acceleration Marketing, Sales Practices and Products Liability Litigation," after the award-winning lawyer argued that the litigation moniker should address Toyota's alleged concealment of vehicle defects, rather than the mechanical/electronic problems themselves.

"We're thrilled," says Lanier, who earlier this month was named one of the decade's most influential lawyers by The National Law Journal. "This is far from merely a mechanical problem. We intend to show that the unintended acceleration of Toyota vehicles is almost certainly the result of electronic problems that Toyota failed to disclose for years."

The cases have been consolidated before Judge James V. Selna, who is already presiding in at least one Toyota case filed by Mr. Lanier and Dana Taschner, Managing Attorney of The Lanier Law Firm's Los Angeles office.

Toyota has recalled more than 10 million vehicles covering 17 different models, including recalls based on unexpected acceleration, faulty floor mats, brake problems, drive shaft malfunctions, and other problems. The U.S. Department of Transportation's National Highway Traffic Safety Administration has recorded more than 30 deaths attributed to unintended acceleration in Toyota vehicles.

The Lanier Law Firm's Los Angeles office already is representing multiple plaintiffs in claims against Toyota nationwide. The firm, whose Los Angeles office sits only a few miles from Toyota's U.S. headquarters, expects to file many additional Toyota claims in the coming weeks and months.

by Robert Tharp at 1:48:36 pm

Thompson & Knight's Houston offices are a bustling place, serving as focal points of the international firm's energy practice, as well as litigation, real estate, corporate, securities, finance and banking, among many other things. In selecting a leader for the office, the firm turned to longtime Thompson & Knight lawyer Alfred M. Meyerson, a highly respected commercial real estate attorney who already serves as the firm-wide leader of the Real Estate and Banking Practice Group. He is a widely published authority on commercial real estate and a longtime supporter of Houston civics issues.

"This represents a tremendous professional opportunity for me to reinforce Thompson & Knight's role in the diverse and dynamic Houston economy," says Mr. Meyerson. "This office serves as the centerpiece for the Firm's comprehensive energy practice, as well as our expanding responsibilities for clients with interests in Latin America, and I look forward to a number of exciting challenges in supporting all of our clients, attorneys, and staff." 

With 70 attorneys, Houston is the second largest office of the 350-attorney firm. In addition to other Texas offices in Dallas, Austin, Fort Worth, and San Antonio, Thompson & Knight also maintains a New York office and international offices and associations in Mexico, North Africa, Europe, and Asia.

by Robert Tharp at 1:45:38 pm

For highly educated foreign-born workers, the economic downturn coupled with the country's strict immigration laws has had a big impact on demand for the once-coveted H-1b work visas, according to Harvard Law School research associate Vivek Wadhwa. "We're in the midst of a massive brain drain," Wadhwa told the USA Today last month.

Case in point: demand for the H-1b has dropped sharply. Until last year, for example, immigration attorney Irina Plumlee of Gardere Wynne Sewell LLP says the limited number of visas were typically exhausted within a few days of the April 1 start of the petition acceptance period. But demand dropped significantly last year, and it took most of the year to exhaust the 65,000-application quota. But that doesn't mean those hoping to score an H-1b this year should take their time applying for a visa. Afterall, Ms. Plumlee says its just impossible to predict demand this year.  "In previous years, you knew that if you didn't have the application in on April 1, you would not receive a visa," she says. "That's no longer a certainty, but waiting too long to make your bid for an H-1B work permit could leave you without a visa."

by Robert Tharp at 3:03:09 pm

Popularity of so-called "pre-pack" bankruptcies has been rising for several years now. As we noted here last November, the number of filings tripled in 2009 alone. For businesses facing the likelihood of bankruptcy, prepackaged bankruptcy allows them to reach agreements with creditors on a reorganization plan before filing. Meanwhile, traditional bankruptcies can take months or years to churn through the system.

The idea is that by shortening and simplifying the process, companies save legal and accounting fees, as well as the amount of time spent in bankruptcy limbo. The sooner the company can emerge from bankruptcy, the sooner it can turn the operation around and start making money.

Consider Houston-based Cross Canyon Energy Corp.'s recent prepack handled by attorneys in  Thompson & Knight's Houston and New York offices. By going the prepack route, Cross Canyon emerged from bankruptcy in just six weeks. "Transactions of this type involving publicly traded securities often take several months or more to go through the bankruptcy process, but after a brief hearing, we were able to obtain confirmation in 42 days after filing the case," says bankruptcy attorney Matthew S. Cohen. "Properly managed, pre-packs can be an efficient and cost-effective way to resolve balance sheet issues and help businesses restructure."

by Robert Tharp at 4:11:28 pm

As he prepares to take on Toyota over vehicle defects, Mark Lanier of The Lanier Law Firm in Houston has been singled out as one of "The Decade's Most Influential Lawyers" by the editors of The National Law Journal. Lanier is the lone plaintiffs' attorney recognized by the NLJ for this list, and one of only four lawyers highlighted for their work in litigation matters, along with famed courtroom attorneys Patrick Fitzgerald, U.S. Attorney for the Northern District of Illinois; Brendan Sullivan Jr. of Williams & Connolly; and Theodore Wells Jr. of Paul, Weiss, Rifkind, Wharton & Garrison. The NLJ calls Lanier a "superstar among plaintiffs' lawyers," while noting his massive win in the nation's first trial over the popular pain medication Vioxx. Lanier's $253.5 million verdict in that case is widely recognized as the turning point in the national litigation over Vioxx, which was later resolved with a $4.45 billion settlement. In an article describing his selection, the NLJ notes Lanier's prominent role in the ongoing litigation against Toyota, including his work for more than 1,000 individuals with claims against Toyota.

by Robert Tharp at 2:08:47 pm

It's only Wednesday and already three different publications have weighed in on McKool Smith's record two-year string of courtroom victories and head-turning verdicts against household name corporations, particularly Microsoft Corp. Dallas Morning News business columnist Cheryl Hall devoted her Sunday column to firm co-founder Mike McKool and principal Doug Cawley, noting the firm's big verdicts and internal culture, as well as a forward-thinking hybrid fee structure that allows the firm to pursue a mix of contingency fee cases, traditional hourly work or a combination of both.

Hall notes: In the last year, McKool Smith PC has won nearly $400 million in two patent infringement victories against the Redmond, Wash., software giant. It just filed a third suit, hoping for more of the same. But Microsoft is not the only company feeling the McKool Smith bite. The Dallas-based law firm racked up more of the Top 100 largest courtroom verdicts than any other firm in the country with four in both 2008 and 2009. Given its latest verdict against Microsoft of $106 million for Silicon Valley-based VirnetX Holding Corp. two weeks ago, McKool Smith may be off to another banner year.

In a Monday piece for the Wall Street Journal's Law Blog, Ashby Jones focused on how the firm's work on behalf of plaintiffs might serve as a model for big firms across the country

The leaders of the nation's largest law firms didn't get to where they are by happy accident. Not only have many of them spent years as successful lawyers and developed the work-the-room shmooziness of politicians and university presidents. They also spend every waking hour thinking about one thing: making their firms more profitable.
So our question to them is this: If profitability is your thing, why haven't you taken a page from the books of Wiley Rein, Dickstein Shapiro and McKool Smith and at least dabbled in handling work for plaintiffs, work that can pay off big if you're successful?
Sure, there are risks. Still, you've seen how it can go. In the early part of the aughts, Dickstein Shapiro brought home a bundle handling contingency fee work for plaintiffs in antitrust litigation. In 2006, Wiley Rein made silly money representing a company called NTP in patent litigation with RIM, the maker of the BlackBerry.
And that brings us to McKool Smith. In the last year, the firm has brought home nearly $400 million for plaintiffs in two patent suits against one company - Microsoft. And it just filed the third. In fact, in the last four years, McKool Smith's contingency fees have exceeded $100 million, according to the story.

Meanwhile, IP Law360 looked at McKool Smith and agreed that other firms might do well to take a page from the firm's plaintiff's side playbook.
Law firms are looking to diversify as a buffer against an unforgiving economy. And a cutthroat legal market has forced some firms to take what they can get.

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