November 14, 2012 by Robert Tharp at 12:00:00 am Shocker: Traditional media consumption continues decline, mobile devices rapidly rising as information source
Two recent surveys put some real numbers to broad trends we’ve been seeing for some time: 1) Americans are continuing to get their information from digital sources at the expense of traditional media, increasingly from mobile devices and social media platforms and 2) law firm websites are playing an increasingly critical role in business development and as an essential vetting mechanism for prospective clients.
Pew Research Center for the People & the Press reports another chapter in the steady demise of traditional(hard copy) news. Back in 2000, Pew found that nearly 50 percent of survey respondents said they’d read a print newspaper the day before. Circa 2012, the readership rate is less than half of that. No huge surprise there, but what’s more interesting is that consumers of information are increasingly(and predictably) using mobile devices to get their news. According to Pew, mobile device users are three times more likely to get news from social media as those who use a desktop device. Among the under-30 crowd, a whopping 30 percent are getting their news from social networks via mobile devices
Meanwhile, Law 360 recently weighed in on the information-consumption habits and vetting processes of prospective law firm clients. Citing a Lexis/Nexis survey, Law360 writes:With nearly 75 percent of people using online resources to help select legal services, it is more important than ever that firms and attorneys invest in their Web presence through easily accessible websites and social media use. Specifically, general counsel of large corporations are more likely to look at websites more for validations, as opposed to choosing a firm based directly from its website.
The Lexis/Nexis survey found that potential clients frequently used social media throughout the attorney search process, with 20 percent using Facebook, Twitter, LinkedIn and YouTube.The basic takeaway here is that not only do today’s websites need to be dynamic and professional, they need to be findable and, perhaps crucially, they need to look good on a mobile phone screen.
November 12, 2012 by Amy Hunt at 3:53:00 pm More Traffic Deaths in First Half of 2012
Traffic fatalities caused by motor vehicle collisions jumped 9 percent the first half of this year, which is why a highway safety group is calling for an increased emphasis on preventing deadly truck accidents, says The Law Offices of Frank L. Branson in its most recent blog post.
The National Highway Traffic Safety Administration reported that the number of fatalities caused by motor vehicle collisions increased 9 percent in the first half of 2012, as compared to the same period in 2011. That’s the largest jump in a single year since the agency began collecting traffic fatality statistics in 1975, the firm writes.
In response to the NHTSA report, The Advocates for Highway and Auto Safety, an alliance of consumer, health and safety groups and insurance companies and agents, issued a statement calling for an increased emphasis on highway safety in Congress and state legislatures. Among the recommended actions, the group says, are steps to address trucking safety[.]
Those recommendations include addressing hours of service limits and driver training.
November 12, 2012 by Amy Hunt at 3:39:00 pm Rx for Divorce-Related Stress
Divorce is stressful, but the way people deal with that stress can either help or hurt them in the long run, says the Dallas family law firm of McCurley Orsinger McCurley Nelson & Downing in its most recent blog post.
“Regardless of the circumstances of a divorce,” the firm writes in the first of a two-parter on stress management for the newly divorced, “it's possible to deal with the anger, sadness and regret in positive ways. Almost all of these techniques will take some time and dedication, but if there's ever a time to make your mental and physical health a priority, it's during a divorce.”
If you find yourself saying ‘I can't do that because...,’ realize that you're the only person who can make your health a priority. Your reasons may be valid and difficult to overcome (job schedule, children's demands, etc.), but if you can make your well-being the priority around which other people's needs are met, you will find yourself far more alert, energetic and focused-all of which makes you a better employee, parent and friend.
Remember what the flight attendant says before every flight: ‘If you're travelling with a child, please put the oxygen mask on yourself before putting it on the child.’ That's because we can't help anybody if we've passed out.
The three most important tools in stress management, the firm writes, are sleep, exercise and nutrition. Sleep is “is the closest thing there is to a magic wellness pill,” closely followed by regular exercise. Those experiencing divorce-related stress also need to seek out fresh vegetables, whole grains, lean sources of protein and healthy fat—and not processed or fast foods that can give quick energy but can cause serious long-term health issues.
“Admittedly, keeping prepared, healthy foods in the house takes planning and organization,” the firm writes, “but it's a better investment than Apple stock.”
November 9, 2012 by Robert Tharp at 12:00:00 am Returning Warriors Transition into Workforce
As the nation honors those who have served and sacrificed on Veterans Day, an estimated 1 million vets are expected to re-enter the workforce in the next five years as wars in Iraq and Afghanistan wind down. It’s a daunting challenge in this economy, underscored by the recent experience of young veterans. Unemployment rates indicate that young vets have unemployment rates far higher than their peers.
Today's returning warriors offer valuable professional and leadership skills, and the 2011 VOW to Hire Heroes Act offers incentives for employers who hire vets. The VOW to Hire Heroes Act allows employers to receive tax credits up to $2,400 for hiring veterans unemployed for more than a month (but less than six months). The incentives climb for hiring a veteran out of work for more than six months, and they reach as high as $9,600 for businesses that hire veterans with service-related disabilities.
Munck Wilson Mandala attorney Michael Rodriguez knows first-hand how the experience can build leadership skills and character that are valuable to employers. An intellectual property lawyer with a degree in engineering, Rodriguez has served two tours in combat zones in both Iraq and Afghanistan as an officer in the Navy SeaBees combat engineering brigade.
"Young vets in many ways have skill sets and practical experience far beyond their peers," he says.
November 7, 2012 by Amy Hunt at 10:26:00 am Family Law Firm: Routine More Important than Fun for Weekend Visits
Following a divorce, it can be a challenge for non-primary parents to maintain a meaningful relationship with their children since they may see them only a couple of times each week, according to a recent blog post from the family law firm of McCurley Orsinger McCurley Nelson & Downing L.L.P. Non-primary parents may be tempted to make elaborate plans and find fun things to do during visits with their children, but that may be a recipe for failure, the firm writes.
Time alone with kids – without the other parents' intervention or the conflict that can be present in unhappy marriages – can provide the non-primary parent with a prime opportunity to occupy a unique and invaluable place in their children's lives.
That can only happen, though, if the non-primary parent takes off his or her "entertainer" hat. Visitation time isn't vacation time for the kids. It's not an excuse for late nights, all-pizza-and-ice-cream diets, unlimited television, and trips to the nearest amusement park. That's what grandparents are for.
The non-primary parent's home needs to be the kids' true second home, with a dedicated space for them to sleep and study, chores, responsibilities, limits, consequences, and routine. Those all provide a solid foundation for children in any situation, but children of divorce need them even more.
Ensuring that visits with non-primary parents are “an extension of, rather than a vacation from, their routine” can help kids build the strong parental relationship that they want and need, the firm writes.
November 5, 2012 by Amy Hunt at 2:04:00 pm Without a Valid Pre-Nup, Sanders’ Assets Would be Community Property
Jeff Anderson, a partner in the Dallas family law firm of McCurley Orsinger McCurley Nelson & Downing, said if the Collin County Judge in the Deion and Pilar Sanders divorce case had invalidated the couple’s premarital agreement, it would have been “a game changer.”
In an interview with Dallas’ Fox 4 News, Anderson (who is not involved in the case) said that, without a premarital agreement (also known as a prenuptial agreement), the couple’s assets would have been considered community property “unless proven otherwise.” That would have probably given Pilar Sanders a much larger share of the former Dallas Cowboys’ assets, according to the law firm’s most recent blog posting.
Despite Pilar Sanders’ contention that her initials were forged in several places in the premarital agreement, the judge ruled that the agreement was valid.
November 1, 2012 by Robert Tharp at 3:05:00 pm Lanier Lawsuit: Pasadena Police Beat, Hogtied Man, Denied Him Medical Attention Before His Death
A Houston Chronicle article published today detailing a federal Civil Rights lawsuit against Pasadena police paints a chilling picture of the last moments of 41-year-old Jose Sauceda Jr.’s life.
Reportedly beaten, shackled in a “hogtie” position face-down on a stretcher and left without medical care in a Pasadena, Texas, hospital room, 41-year-old Jose Sauceda Jr.’s death in custody raises serious questions about his treatment by police. The lawsuit filed by The Lanier Law Firm on behalf of Mr. Sauceda’s family seeks answers about how the married father of four died in police custody after his March 25, 2012, encounter with Pasadena officers.
According to the lawsuit, Mr. Sauceda was detained by Pasadena police on suspicion of driving while intoxicated. He was taken to Bayshore Medical Center for a blood test after being beaten by police and hogtied face-down on a stretcher, according to the suit filed Oct. 26 in the 127th State District Court.
Writes the Houston Chronicle: The defendants, who deterred attempts by hospital staff to assess and treat Sauceda, watched him struggle, turn purple and blue and die, the suit claims.
"That's the thing that is most mind-boggling here," said attorney Lawrence P. Wilson of The Lanier Law Firm in Houston. "Did they not realize he was in distress? Did they not at some point say, 'You know what? We ought to let the medical people check him out.' "
After Mr. Sauceda was transported to the hospital and placed in a private room, the lawsuit says, at least one Pasadena police detective and several officers looked on while he struggled for air and eventually died. According to the family’s claims, the same officers prevented hospital nurses from caring for Mr. Sauceda’s obvious injuries.
“Jose’s family wants answers, and they deserve to know why this happened and who should be held responsible,” says Mr. Wilson, lead counsel for the family. “How can a room full of police officers stand a few feet away while a healthy man is suffocating right in front of them?”
October 30, 2012 by Amy Hunt at 3:38:00 pm Drafting a Prenup? No Crossed Fingers, Please
When a character on a TV show signs a prenuptial agreement, it’s often portrayed as “an unbreakable vow” that leaves the less asset-rich spouse with no possibility of contesting it.
The truth is there are several circumstances in which a prenup, also called a premarital agreement, can be declared invalid. One of the primary ways a prenup can be undone is if one of the spouses was dishonest when the agreement was drafted, R. Scott Downing, a McCurley Orsinger partner, told the Reuters news service.
Mr. Downing told Reuters of a case in which his client was able to get a prenup thrown out “after a court ruled her husband had community property worth millions that he hadn't disclosed to his wife.”
One of the husband's downfalls was that he had given his wife a revised prenup on their wedding day. When she said she wanted to call her attorney, he lied, saying that her attorney had said it was okay to sign it.
"People need to know that if you're going to promise somebody a complete disclosure in a prenup, you'd better give it to them," says Downing.
October 30, 2012 by Robert Tharp at 3:30:00 pm Amusement Ride Safety in Spotlight Following 2012 State Fair of Texas Mishaps
Teasing danger is certainly a big part of the allure of midway carnival rides at the State Fair of Texas and carnivals and fairs big and small across the country. As the rides have gotten bigger, faster and more sophisticated, the carnival ride industry has matured with better oversight and more safety protections for passengers.
But this year’s record-breaking State Fair of Texas points the need for more work to be done. On the same day that the iconic Big Tex was incinerated in a dramatic flash fire, riders on the already troubled Statosphere ride were left dangling nearly 200 feet in the air for more than two hours.
Meanwhile, another ride at the State Fair of Texas, the Techno Power(also known as Re-Mix II), was involved in a mishap at the 2011 San Diego County Fair. In that incident, the ride malfunctioned and started up as passengers were disembarking, throwing one passenger and seriously injuring a ride operator. Investigators were unable to pinpoint the precise cause of the accident, but the ride was rewired and allowed to go back in commission in advance of the State Fair of Texas. And earlier this year, a Houston man died when he fell from the Hi-Miler roller coaster at the Houston Livestock Show and Rodeo.
The increased focus on amusement ride safety at the State Fair of Texas is in part a result of work by Dallas personal injury lawyer Frank L. Branson who represented victims of a 1983 accident involving the “Enterprise” ride at the State Fair of Texas in 1983, which killed one rider and seriously injured another. As part of a settlement in that case negotiated by The Law Offices of Frank L. Branson, fair officials agree to implement extra monitoring and safety measures.
"They've certainly changed for the better," Mr. Branson says. "There's still a lot of hazard out there."
October 29, 2012 by Robert Tharp at 12:00:00 am Election Day is no Holiday, But Employers in Most States are Required to Give Workers Time Off to Vote
Voters in some states have reported waiting as long as five hours to cast early voting ballots for the 2012 presidential election. With election day(November 6) fast approaching, some workers are no doubt wondering how they will find time to vote if they’re expected to put in a regular full day of work at their jobs. There’s even a movement afoot to make voting a national holiday or to move election day to a already designated holiday, such as the second Tuesday in November, Veterans Day.
Writes The Atlantic: The idea that voters shouldn't have to work on Election Day isn't a new one -- every four years, there are new calls, though none of them has been successful. We cast ballots on a Tuesday for outdated historical reasons. When the date of elections was fixed on the first Tuesday after the first Monday in November in 1872, Sunday was out of the question, as poll-related revelry would have fatally conflicted with the sabbath, and most people worked the other six days anyway. But since the establishment of the five-day work week, the placement no longer makes as much sense.
What many workers and some employers don’t realize is that state laws typically require employers to provide job-protected time off to vote, says Audrey Mross, who heads the labor and employment practice at Munck Wilson Mandala in Dallas.
"The Texas version of the law says employees get time off unless their schedule provides two consecutive non-working hours during the time the polls are open," Mross says. Some states, such as California, require workplace posters that inform employees of their rights as voters. Others prohibit discrimination against those who engage in certain political activities, such as running for office or working at a polling place.
October 16, 2012 by Amy Hunt at 5:08:00 pm The Deadly Impact of Inattentive Truck Drivers
Distracted drivers of all kinds are a road hazard, but inattentive truck drivers are particularly deadly because of the size and speed of their rigs. According to the latest blog post by truck accident lawyer Frank L. Branson of Dallas’ Law Offices of Frank L. Branson, a recent collision in upstate New York was caused by a truck driver who failed to see prominent signs warning of road construction.Six people died in the accident that police say was caused when truck driver James Mills Jr. slammed into a line of cars in northern New York. Among the victims were an elementary school speech therapist and her two teenage daughters, as well as the woman’s 69-year-old mother-in-law.According to a report in the Plattsburg, NY, Press-Republican, Mr. Mills’ 18-wheeler was headed south on a slightly downhill stretch of highway when he slammed into an SUV, setting off a chain reaction. An investigator told reporters that the construction project was visible and that the signage was sufficient to alert drivers.According to the news report: The tractor-trailer is owned by MBM Customized Foodservice Distribution, based in Rocky Mount, N.C. A spokesman for the company didn't immediately return a call seeking comment Friday afternoon.Trucks operated by the company have been involved in 75 accidents over the past two years, including one crash that killed one person and 23 crashes that resulted in at least one injury, according to data compiled by the Federal Motor Carrier Safety Administration.
October 11, 2012 by Amy Hunt at 3:36:00 pm Recently divorced? Start holiday planning now
We’re not even mid-way through October, but the Dallas family lawyers at McCurley Orsinger McCurley Nelson & Downing L.L.P. say it’s not too soon for recently divorced families to start planning for the holidays.
The firm’s most recent blog post says some recently divorced couples may even want to continue celebrating some special events, such as Thanksgiving dinner or Christmas morning, together—assuming the ex-spouses are able to get along.
It’s probably not an ideal solution for the long-term, particularly if either spouse has or is planning to remarry, but it may help to ease the children’s transition for the first year.… Clearly, this is one of those ideas to be taken on a case-by-case basis because although it may work fine for one family, it may be disastrous for another.
Other tips include making an agreement about gifts and how those and other holiday costs will be paid for; finding new traditions; keeping some old traditions; and making a special effort to be civil with the ex.
“Holidays can be stressful even under ideal circumstances,” the firm writes. “Adding a recent divorce into the mix only compounds that stress.”
October 11, 2012 by Robert Tharp at 12:00:00 am Uncertainty Remains Over Arbitrator Disclosure
For veterans of the legal profession, the world has a way of feeling incredibly small at times. Law school roommates become judges. Former colleagues end up on the opposing side in lawsuits. In any given case, it can take a Venn diagram to detail the shared histories between opposing lawyers, judges, arbitrators and experts.
The age-old challenge is determining where to draw the line and when to disclose a potential conflict. The United Nations Commission on International Trade Law (UNCITRAL) tried to tackle the topic with new disclosure rules for arbitrators, but Gardere Wynne Sewell LLP partner Juan M. Alcalá of Austin says there’s more work to be done.
"With respect to an arbitrator's disclosure standards, there remains uncertainty as to what constitutes a circumstance worthy of disclosure,” says Alcalá, who co-wrote the chapter "Arbitrator Disclosure Standards in a State of Flux" in the International Centre for Dispute Resolution book, "ICDR Awards and Commentaries." “The uncertainty will continue until there is a uniform standard and rules for determining an arbitrator's disclosure responsibilities."
October 11, 2012 by Dave Moore at 12:00:00 am Trial Lawyer Bill Chamblee: Organizations Can Learn From Boy Scouts Allegations
The Boy Scouts of America is reeling in response to a court order to release a trove of closely guarded internal files documenting the group’s poor record of protecting young boys and adolescents from sexual abuse. Dallas trial lawyer Bill Chamblee says the experience of the BSA offers valuable lessons for organizations of any kind.
An Oregon court recently ordered the non-profit Boy Scouts organization to open its so-called “perversion files,” which detail sexual abuse at the hands of troop leaders and other adults affiliated with the organization dating back to 1965.
Based on preliminary analysis of these so-called “perversion files,” the Scouts in failed in many cases to report the allegations to police in an apparent effort to protect the Boy Scouts’ public reputation.
Writes the Los Angeles Times’ Carla Hall:That pattern sounds horribly familiar. As with the sexual-abuse cases that rocked the Roman Catholic Church and the Jerry Sandusky case at Penn State, here is another situation in which authorities, entrusted to care for young people, failed to deal properly with molesters in their institution, which led to more children and youths being victimized.
Adds Chamblee of Dallas-based Chamblee, Ryan, Kershaw & Anderson: "Any organization, especially those that deal with the mentoring or supervising of children, needs to conduct thorough background checks on individuals before putting them in positions of trust. If there are reports of abuse, organizations must act swiftly, not just to protect themselves, but also to prevent further abuse. As we've learned from the Catholic Church, any attempt to hide wrongdoing can make an organization a party to abuse."
October 9, 2012 by Robert Tharp at 1:32:00 pm Energy Boom Brings Deadly Truck Crashes to South Texas
The billions of barrels of oil sitting in the Eagle Ford Shale of South Texas have generated a boom in oil and natural gas production and provided much-needed jobs and economic growth in those areas with underground energy reserves. But the most recent blog posting by the Law Offices of Frank Branson shows that this new and welcome prosperity comes with a tragic downside: a dramatic increase in deadly truck crashes.
According to an analysis by the San Antonio Express-News:
Since the beginning of the boom, accidents involving commercial vehicles [in McMullen county] have increased more than tenfold, from four crashes in 2008 to 46 crashes in 2011, according to crash data compiled by the Texas Department of Transportation.
Neighboring La Salle County has had a 418 percent increase in that type of crash since 2008. . . .
The most frequently cited causes for McMullen County accidents were truck drivers ignoring signs in construction zones and defective headlights, according to the TxDOT data.
According to the Branson firm’s blog, not only do truck crashes cause fatalities, “but they also wreak havoc on nearby residents and make routine errands almost unbearable,” in addition to causing extensive damage to area roads.
October 4, 2012 by Dave Moore at 9:44:00 am American Airlines fliers caught in bankruptcy struggle
Most airline passengers’ knowledge of bankruptcy doesn’t extend beyond reading news accounts of the travails of the U.S. and global economy.However, passengers of Fort Worth-based American Airlines seem to have found themselves in the middle of a bankruptcy-related power struggle between the airline pilots’ union and American’s parent company AMR. Recent developments include AMR’s threat of court action unless pilots end unnecessary flight delays. Some speculate that the pilots are delaying flights as payback to the airlines, which successfully fought in bankruptcy court to change the terms of pilot labor contracts.“People don’t want to be dragged into a bankruptcy dispute,” Dallas bankruptcy lawyer Linda LaRue recently told KRLD-AM reporter Chuck Schechner. LaRue, who works in the Dallas office of Quilling, Selander, Lownds, Winslett & Moser, P.C., adds: "The airline and the union may argue over the facts underlying the delays and cancellations, but one undeniable point is that the continued loyalty of the customer base is necessary in order for the airline to survive. It doesn't matter what side the public blames for its inconvenience. The issue is whether passengers will take their business elsewhere and, if so, for how long.”
September 18, 2012 by Robert Tharp at 12:00:00 am Texas Landowners Benefit From Frontier-Era Homestead Law
Texas home and property owners enjoy particularly robust protections from creditors that shield against the forced sale of a home to meet the demands of creditors. What many don’t know is that these safeguards can be traced directly to early Texas history when founders were motivated to make the state attractive to settlers.Many Americans who settled in Texas in the early nineteenth century were pursued by their creditors, and for their protection Stephen F. Austin recommended a moratorium on the collection of the colonists' foreign debts, notes the Handbook of Texas Online."Early leaders wanted to settle the state as quickly as possible," explains bankruptcy lawyer Frances Smith of Dallas-based Shackelford Melton & McKinney. "To encourage settlers to move to Texas, founders advertised generous homesteads, which were protected from creditors." As a result, Texans' homesteads – the land and house they occupy – always have been exempt from general creditor claims. This generally covers up to 10 acres of urban land, and up to 200 acres of rural property. "Texas doesn't cap the value of your homestead," adds Smith. "Some states will say you get your homestead up to $25,000 or $30,000, but Texas does it by the land area, so it doesn't matter what the dollar value might be. Whether your 200 acres is worth $2 million or $200,000, it doesn't matter. Each of your 200 acres is protected."
August 24, 2012 by Robert Tharp at 12:00:00 am Penn State's Freeh Report Offers Lessons for All Employers
Former FBI director Louis Freeh’s exhaustive report on the Penn State sex abuse scandal offers a sobering picture of the workplace culture inside Penn State that allowed Jerry Sandusky’s pattern of child sexual abuse to go unreported for so long. While businesses and employers would prefer to think that their workplace environment is far different from that of Penn State and its mighty football program, employment attorney Audrey Mross at Dallas-based Munck Wilson Mandala LLP says the Freeh Report findings and recommendations offer valuable tips that any business can use.
The report pulls no punches in outlining “catastrophic” leadership failures within the school. Writes the Washington Post:
The report wrote that four of the top officials at the university “failed to protect against a child sexual predator harming children for over a decade.” It says that the former president “discouraged discussion and dissent.” And it notes that the “most senior leaders” at Penn State demonstrated “total and consistent disregard…for the safety and welfare of Sandusky’s child victims.”
Top leaders were “unchecked by the Board of Trustees that did not perform its oversight duties.” The board “failed in its duties to oversee the President [Graham Spanier] and senior University officials in 1998 and 2001 by not inquiring about important University matters and by not creating an environment where senior University officials felt accountable.” And they were blamed for “overconfidence in Spanier’s abilities to deal with the crisis,” a “complacent attitude” and a failure to have “regular reporting procedures or committee structures in place to ensure disclosure to the Board of major risks to the University.”
One might argue that if the president chose not to alert the board about incidents in 1998 and 2001, then the trustees were simply left in the dark and couldn’t have done more. The Freeh report sees it differently. Because it did not have “regular reporting procedures or committee structures in place to ensure disclosure” of major risks, the board “failed to exercise its oversight and reasonable inquiry responsibilities,” the report states.
Beginning at page 127 of the report, numerous recommendations offer ways to make any organization accountable and more transparent, establish higher ethics and oversight standards and develop ways to ensure that workers feel comfortable voicing concerns.
"Offering protection to whistleblowers who point out wrongdoing, holding leaders accountable for their actions, and having zero tolerance for abuse are touchstones that all organizations should adopt," says Mross, whose labor and employment practice includes helping clients develop workplace employment policies and guidebooks.
August 23, 2012 by Robert Tharp at 12:00:00 am After hanging up the skates, Mike Modano's marriage hits the skids
Many were surprised by the news this month that retired Dallas Stars hockey legend Mike Modano and singer/actress wife Willa Ford have filed are divorcing after five years of marriage and four previous years of courtship.
Details may one day shed light on the causes of this sports star/entertainment celebrity breakup, but observers point out that it’s notable that the breakup comes less than a year after Modano experienced a major life change by retiring from his pro hockey career. Relationships involving highly successful dual-career couples often come under strain when one partner retires, says Brad LaMorgese, a partner in the Family Law firm of McCurley Orsinger McCurley Nelson & Downing L.L.P.
"The toll paid on a marriage when a spouse has a major change in their professional life can be irreparably compounded when the other is still moving ahead full speed in their chosen field," LaMorgese says. "The initial compromises a high-power couple forge to make their relationship work may not be able to withstand the seismic shift in goals and expectations."
August 21, 2012 by Robert Tharp at 12:00:00 am Ruling Imminent in Challenge to Keystone XL Pipeline Eminent Domain Case
With construction now underway on the Texas leg of TransCanada’s Keystone XL pipeline, players on both sides of the politically polarizing project are anxiously awaiting an east Texas judge’s ruling on a closely watched challenge to TransCanada's use of eminent domain to obtain right-of-way use of private property.
In a recent Law360 update on the court battle between an individual property owner and TransCanada, real estate and eminent domain lawyer Charles Fiscus of Shackelford Melton & McKinley in Dallas described how the two sides are locked in a battle over the oil company’s designation as a “common carrier,” which allows it to seize private property. As such, TransCanada must prove the project will benefit the public, and not just the company.Writes Law360:
Fiscus said the Crawford case was “the exception as opposed to the rule” when it comes to condemnation suits brought by oil and gas companies because the vast majority of such cases are settled. But Fiscus noted that the case raises issues that should cause litigators to take pause when seeking a judicial condemnation judgment based on common carrier status. Because property ownership is a politically and emotionally charged issue, Fiscus said the perception that private land is being taken for a commercial purpose raises the evidentiary bar.
“The further your client gets away from being a public entity ... the more you’re going to have to make sure you can prove you are taking the land for public use,” he said.But the high-profile nature of the case makes it likely that public officials will be paying close attention to the ability of common carriers to condemn land, particularly with a seat on the Railroad Commission set to be filled in November, Fiscus said.
“The pipeline is coming through a lot of farmland and land that has been in family hands for three or four generations,” he said. “People are attached to their land.”
August 3, 2012 by Dave Moore at 12:00:00 am Billing Suit Against Texas Vascular Associates a Volley in War Against Medicare Fraud
Medicare fraud costs U.S. taxpayers $60 billion a year, according to Justice Department estimates. Cortez Mills, a former employee of a Baylor-affiliated physicians group, recently blew the whistle against such fraud, alleging that she was fired from her job at Dallas-based Texas Vascular Associates (TVA) when she refused to double bill and overcharge Medicare, insurance companies and patients. “Ms. Mills identified what we believe was an illegal scheme at TVA, and she lost her job for refusing to play along,” says Dallas employment attorney Matt Scott of the Kendall Law Group, who represents Ms. Mills. “She had the courage to speak up and recognize this was wrong.” The complaint, filed on July 26, alleges that when Mills declined her employer’s instructions to participate in TVA’s fraudulent billing scheme, a TVA supervisor responded: “He pays your salary, do what he says.” Probes into overbilling – referred to as “upcoding” – and other forms of medical billing fraud have uncovered billions of dollars stolen from the federal government and is “one of, if not the most profitable crimes in America,” reports news magazine “60 Minutes”: …The FBI arrested 53 people in Detroit, including a number of doctors, and charged them with billing Medicare more than $50 million for unnecessary medical procedures.And in Los Angeles, the City of Angels Medical Center recruited homeless people off the street to fill their empty beds, offering them cash and drugs plus clean sheets and three square meals a day, while billing Medicare tens of millions of dollars for their stay.“We have to understand this is a major fraud area,” United States Attorney General Eric Holder told (“60 Minutes” correspondent Steve) Kroft. Mills has taken and passed a polygraph exam indicating that what she says about the billing practices at Texas Vascular Associates is true. In addition, another former TVA employee has signed an affidavit saying she witnessed the same kinds of billing problems during her tenure at the practice.
July 13, 2012 by Robert Tharp at 12:00:00 am Estate tax lawyers develop new strategies as gift/death tax loopholes set to expire
The clock is winding down on what BusinessWeek calls an “unprecedented opportunity” to transfer wealth among family members. The ability to transfer as much as $5.12 million in assets tax-free is set to close on December 31, and with that an opportunity for wealthy individuals to share assets and save millions in taxes.
Writes BusinessWeek: Legislation enacted in 2010, which raised the lifetime gift-tax exclusion to $5 million from $1 million for each person starting last year, is set to expire. For 2012, the inflation-adjusted figure is $5.12 million for each person. It will drop to $1 million on Jan. 1 unless Congress acts.
Money or property given while alive may be subject to the gift tax, and wealth transferred at death may incur levies applied to estates, according to the Internal Revenue Service. Under current law, an estimated 3,300 households may have to pay estate taxes this year, according to the Washington-based Tax Policy Center. The figure would increase to about 52,500 estates next year if the exemption drops to $1 million, data from the nonpartisan research group show.
With the tax break set to expire, Dallas attorney Dan Baucum of Dallas-based Shackelford Melton & McKinley says the well-to-do are turning to exotic techniques in a last-ditch effort to protect their investments from the looming tax uncertainty. "Some families have tried to delay the inevitable death tax through provisions in their Last Will and Testament documents, and a few have created 'Family Limited Partnerships,'" says Baucum, a former special assistant to the IRS associate chief counsel. But for those with working assets, such as a family farm or business, these options won't work. Instead, they are opting for a "Defective Grantor Trust" where parents make a seed gift or sale to a trust with special terms that treat themselves as the owners. This gives them control, but gifts future appreciation to their heirs. "Generally speaking, property values are at or near their all-time lows. If you're going to 'sell or gift' to your heirs, now may be the time to do it," he adds.
June 22, 2012 by Robert Tharp at 12:00:00 am Employment Discrimination Lawsuits Spike Since 2008 ADA Revisions
Employment discrimination lawsuits under the Americans with Disabilities Act (ADA) have nearly doubled in the last five years, and this trend shows no signs of slowing down, according to the Transcational Records Access Clearinghouse. The 90 percent increase in discrimination lawsuit filings follows changes to the ADA in 2008 that significantly broadened the range of workers protected under the statute and simultaneously made it harder for employers to obtain summary judgments for frivolous complaints, says employment litigator Michael Baum of Dallas-based Munck Wilson Mandala.
"The broader definitions of who qualifies as 'disabled' under the ADA, coupled with an economic downturn in which out-of-work employees are more likely to sue their former employers, has resulted in a significant uptick in these types of lawsuits across the country," he says. Writes the Washington Times:In the last fiscal year, disability-related complaints lodged with the Equal Employment Opportunity Commission (EEOC) also rose to their highest level, at 26,000, and payouts to complainants through that process nearly doubled to $103 million compared with the figure from 2007. That does not include money paid out to those who took their complaints to court.The flood includes more frivolous claims than ever: Despite the broadened law, the EEOC saw the highest percentage yet deemed “no reasonable cause” last year.The ADA Amendments Act of 2008 undid a court precedent requiring judges to take into account “mitigating measures” that treat disabilities, effectively saying that hearing-impaired people are not disabled if they wear hearing aids that restore hearing. Attorneys for employees say those measures don’t entirely undo a person’s disability.
June 8, 2012 by Robert Tharp at 12:00:00 am SCOTUS Set to Weigh In on Rise in Debt Collection Lawsuits
The number of lawsuits filed against debt collectors under the Fair Debt Collection Practices Act has skyrocketed from 3,200 in 2006 to more than 12,000 last year, in part because of a litigation business model in which law firms that specialize in Fair Debt Collection Practice Act (FDCPA) claims file large volumes of cases in which successful plaintiffs collect a relatively modest award while the law firms reap significant legal fees paid by the defendant.
That model could change now that the U.S. Supreme Court is set to weigh in on whether plaintiffs who unsuccessfully sue debt collectors can be required to pay the defendant’s legal fees. Dallas collections attorney Brandon Starling of Shackelford Melton & McKinley says a ruling that upholds the lower court’s opinion has the potential to shift the legal landscape and reverse the trend.
“This might make law firms that file massive numbers of these fair debt collection suits think twice,” Starling says. “If the Supreme Court were to say these debt collection firms can be awarded fees and costs in their legal defense, it might make these plaintiff firms more reasonable and easier to deal with.”
Writes the ABA Journal: The case turns on the interplay between the federal rule and this provision of the Fair Debt Collection Practices Act: “On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney’s fees reasonable in relation to the work expended and costs.”
June 6, 2012 by Robert Tharp at 2:00:00 pm Dallas Personal Injury Lawyer Crunches Boat Safety Stats
An avid boater, Dallas personal injury lawyer Robert S. Gregg has seen firsthand how cavalier attitudes about boat safety can have serious consequences. Gregg collected boat accident stats going back five years and came up with some very interesting results. His analysis found that operator inattention and alcohol consumption are the top contributing factors for boat accidents on Texas lakes. Additionally, Gregg found that the boat accidents traditionally spike during the busy Memorial Day weekend. See a news report on Gregg's analysis by CW 33's Dawn Tongish below.
May 9, 2012 by Robert Tharp at 12:00:00 am Dallas family law attorney Carmen Eiker: Deion Sanders should think before he rants on social media about divorce
When tempers boil over during emotional family law matters, social media platforms like Facebook and Twitter are often irresistible for spouses needing to blow off steam. But as any family law attorney will attest to, venting on social media during divorce is a terrible idea. A recent poll by the American Society of Matrimonial Lawyers found that 80 percent of family law attorneys had used social media posts in divorce proceedings. Dallas Cowboys Hall of Famer Deion Sanders may be the latest to learn this lesson the hard way. Sanders has used his Twitter account to regularly broadcast the latest developments in his high-profile and high-drama breakup with his wife, Pilar. He even brought his young children into the fight by posting photos of the kids purportedly filling out police reports about their mother’s behavior.In this report by KTVT Ch. 11 in Dallas, Dallas family law attorney Carmen Eiker of McCurley Orsinger McCurley Nelson & Downing explains why it’s a bad idea for spouses going through divorce to lash out on social media. “In general, it’s a bad idea,” she says. “That’s the kind of thing that reveals a lot about a person … Think before you post.”
May 3, 2012 by Robert Tharp at 11:00:00 am Facebook Firing Report
The anything-goes nature of communication on Facebook and other social media platforms has created perilous territory for employers and employees alike. In this story by CW 33 in Dallas, reporter Dawn Tongish explores the changing legal landscape and recent NLRB opinions designed to provide much-needed guidance to HR departments. Labor & employment lawyer Audrey Mross of Dallas-based Munck Wilson Mandala explains that many employers are suprised to learn that they cannot implement blanket policies forbidding workers from leveling criticism in online forums.
May 3, 2012 by Robert Tharp at 8:00:00 am M&A Lawyer Randy Ray Analyzes US Airways' Interest in Acquiring AMR
American Airlines highly anticipated descent into Ch. 11 bankruptcy has been keeping North Texas news reporters busy trying to explain the complicated legal twists and turns and the potential impact to the local economy. Interest was amped up a notch when US Airways began manueverings to position itself in front of AMR's creditors with an eye toward acquiring the struggling airline. In this news report by KTVT Ch. 11 in Dallas, business lawyer Randy Ray of Dallas-based Munck Wilson Mandala discusses developments in the American Airlines bankruptcy, including the latest moves by US Airways.
March 29, 2012 by Dave Moore at 12:00:00 am Link Between Drop in Traffic Tickets and Spike in Teen Crash Fatalities?
Does the threat of a traffic ticket have a deterrent effect on reckless and risk-prone drivers? In Texas, where the annual number of speeding and other traffic tickets has dropped by more than 433,000 over the past five years, a recent increase in teen driving fatalities raises real concerns, says Dallas personal injury/criminal defense lawyer Robert S. Gregg.
Gregg notes that teen drivers are a notoriously impulsive, reckless and risk-prone group, and that’s just one of the reasons why insurance rates for teen drivers are triple that of most adults. Drivers, and teens in particular, need to know that careless driving habits have real consequences.
“If drivers are running more red lights, speeding and violating the law without consequences, you’re going to see more wrecks and injuries,” says Gregg, whose personal injury practice includes representing individuals who have been injured in crashes caused by reckless and negligent drivers. Gregg has particular expertise representing victims who have been injured by truck drivers and other commercial vehicles. “Teens especially need to know that there are serious consequences for reckless driving. This drop in traffic enforcement also represents a significant loss in revenue at a time when city and county budgets are very tight.”
Gregg cites an 18 percent increase in teen fatalities statewide between the first half of 2010 and the first half of 2011. Meanwhile, between 2007 and 2011 the annual number of traffic tickets statewide has dropped 10 percent. Dallas police in particular are writing far fewer citations – the 223,651 citations written in 2011 represent a drop of 170,000 citations compared to 2007. Here’s the Dallas Morning News’ take on the trend.
March 27, 2012 by Dave Moore at 12:00:00 am Dallas Divorce Attorney Mike McCurley: Facebook, Twitter Still Tempting Couples in Midst of Divorce
Posting thoughts, photos and opinions on Facebook and Twitter has become almost second nature nowadays.
Yet seemingly offhand online comments and photo uploads can become part of the official court record, especially if they’re done in the midst of a divorce. And despite repeated warnings of the potential perils, husbands and wives continue to do so.
“We’ve been warning clients for years to be much, much more careful in their use of social media, but people in the middle of a divorce are a little bit like people in love – they aren’t always thinking straight,” said Dallas attorney Mike McCurley of the family law firm McCurley Orsinger McCurley Nelson & Downing L.L.P.
“I advise them to be super cautious about their Facebook and Twitter accounts, and anything else they may have that could show up as evidence against them,” McCurley said. “If your ex wants to find incriminating evidence, make him or her work a little harder.”
A search of social media sites has become de rigueur in divorce cases, writes MSNBC:
Oversharing on social networks has led to an overabundance of evidence in divorce cases. The American Academy of Matrimonial Lawyers says 81 percent of its members have used or faced evidence plucked from Facebook, MySpace, Twitter and other social networking sites, including YouTube and LinkedIn, over the last five years.
Given the content that Facebook, Twitter and other outlets provide, it’s no wonder they’re becoming a resource for spouses who are looking for evidence to support their divorce claims.
February 23, 2012 by Robert Tharp at 12:00:00 am On Eve of Gulf Oil Spill Trial, Sutherland Law Firm Unveils Crisis Management & Complex Litigation Website
With the Gulf Oil spill trial set to start with a day of opening statements in New Orleans Monday, the Houston office of Sutherland Asbill & Brennan LLP , which represents a key player in the trial, launched a Crisis Management and Complex Litigation website to provide clients and potential clients with information on how to handle important legal problems while they continue with ongoing business.
The new website, sutherlandcrisismanagement.com, includes information on Sutherland’s crisis management team, its crisis and litigation strengths, the firm’s experience in complex crisis situations, and news articles of interest on the ‘Crisis Notes’ page.
Rachel Giesber Clingman, a lead attorney in spill trial and co-partner-in-charge of the Sutherland Houston office, says: “Our crisis team was chosen from different legal specialties among Sutherland’s offices across the country and is able to immediately address internal and external complex crisis situations for our clients.”
The Houston office is growing, see this Houston Chronicle story, and is nationally recognized in energy litigation and crisis management, energy trading and derivative contracts, and offshore marine litigation.
Sutherland’s Crisis Management and Complex Litigation Team has advised and defended clients simultaneously on multiple fronts, including parallel civil litigation and criminal investigations, multidistrict proceedings, putative class actions, congressional investigations and hearings, regulatory investigations, internal investigations, shareholder direct and derivative claims, and corporate disclosure issues.
Houston partner Steven L. Roberts, a member of the crisis management team, says Sutherland’s extensive experience in crisis situations allows the firm to immediately mobilize a targeted response for clients.
Sutherland’s crisis experience includes advising clients from a variety of industries, including an international drilling contractor in all litigation relating to the Gulf of Mexico oil spill; a privately held manufacturing company facing an antitrust problem; a NYSE-listed investment company attacked by a short-selling hedge fund; and a multinational industrial giant with revenue irregularities that were flagged on the eve of a year-end earnings release.
February 14, 2012 by Dave Moore at 12:00:00 am After 10-Year Battle, Burn Victim Prevails With $2.5 Million Award
Legal battles sometimes bring about unusual alliances.
Such is the case of Isabel Molina, who suffered severe burns over her face and body when the food trailer in which she worked caught fire in 2002 in Dallas. Molina sued the operator of the trailer, Juan Miguel “Mike” Bonilla, in 2003 and eventually won a $1.8 million jury verdict.
Appeals to the Dallas Court of Appeals and later to the Fifth Circuit followed, and in the process, Bonilla joined Molina in a battle to force Bonilla’s insurance company to cover the District Court's judgment. The insurance provider offered Molina a low six-figure settlement during the 10-year legal battle.
On Feb. 2 – nearly 10 years after the fire, and after all appeals were exhausted – a federal judge signed a final order requiring the insurance carrier to finally pay the amount of the jury verdict, plus $700,000 in interest.
The Dallas Morning News writes that her attorneys, Mark Sudderth and Chuck Noteboom, of Noteboom: The Law Firm
described their client as courageous and strong in her religious faith throughout the ordeal. They hope the result would help her and her children “salvage their lives and get their lives on track.”
“It was a sad deal,” Sudderth said. “She had horrific injuries, and she never gave up, and in the end, justice was served.”
The case of Molina shows that while the wheels of justice can turn slowly, with patience, perseverance and faith, the outcome can be worthwhile.
February 2, 2012 by Dave Moore at 12:42:00 pm Dallas Constitutional Lawyer Carl Cecere: History Indicates Supreme Court Will Uphold the Obama Health Care Law
The Affordable Care Act (also known as Obamacare) spans nearly 2,700 pages. So there should be no surprise that there are lots of questions about what the new law could mean for U.S. citizens who are struggling to obtain health care coverage.
Perhaps the biggest question of all is whether the law is even legal—and that question has been posed to the United States Supreme Court. Appellate lawyer and constitutional law expert Carl Cecere of the law firm Hankinson LLP recently gave a preview of the case in an interview with Jane McGarry of NBC5. According to Cecere, “The key question is … has the government gone beyond the powers vested in it by the Constitution” in enacting the law?
Cecere, who is an appellate lawyer with substantial experience in constitutional law, says that he believes that the high court will uphold the law based upon the opinions of the justices in earlier cases.
Adds Cecere, the Act’s requirement that individuals insure themselves isn’t exactly unique in comparison to other obligations the government imposes upon us, like jury service or even the draft. And he notes that even the Founders thought that the federal government could force individuals to purchase products. The Militia Act of 1792, passed by many of the same members of Congress that drafted the Constitution in 1871, required that men between the ages of 18 and 44 purchase a musket and ammunition.
Congress didn’t stop at muskets and ammo with the Militia Act:
“…Every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.
Ironically, a quarter pound of gunpowder is enough to cause a substantial health insurance claim if not handled properly.
January 27, 2012 by Robert Tharp at 1:00:00 pm Dallas Family Law Attorney Brad LaMorgese: Spouse of former Dallas Cowboys star Deion Sanders Trying to Stiff-Arm Prenup
File this one under `Celebrities and Their Spouses Behaving Badly.' The charges have gotten ugly on both sides in former Dallas Cowboys star Deion Sanders’ breakup with second-wife Pilar Sanders, but the celebrity divorce filed in Dallas County also contains an interesting legal question.
In an effort to stiff-arm the prenup she signed that shields the bulk of Deion’s assets from her -- including their $21 million North Texas home -- Pilar is claiming that she is entitled to the assets because she signed the papers under duress. In this FOX Ch. 4 report, Dallas family law attorney Brad LaMorgese, of McCurley Orsinger McCurley Nelson & Downing, provides some analysis on the latest legal manueverings. See the video here.
January 17, 2012 by Dave Moore at 3:50:13 pm Tax Attorney Todd Lowther: IRS Offers Amnesty for Employers That Improperly Classify Workers
We’ve all read about amnesty offered to individuals who turn in unwanted handguns and for deadbeat dads who are behind on child support payments.
Now, the IRS is offering its own sort of amnesty to employers who previously improperly classified workers as consultants or contractors, rather than as employees to avoid the costs associated with hiring them (such as unemployment, worker’s compensation and overtime).
As the San Francisco Chronicle writes:
Under the amnesty program, if an employer that is not already being audited voluntarily reclassifies its employees, it will pay a fraction of the employment taxes due for the most recent year, no interest or penalties and will not be subject to an IRS employment tax audit for past years. But it's not a get-out-of-jail-almost-free card. The employer could still be liable for unpaid state unemployment insurance and workers' compensation premiums. Workers who had been misclassified could sue to recover pay and benefits they might have been entitled to.
Reclassifying workers under the IRS program could even encourage state agencies and workers to pursue such claims…
Still, the IRS initiative has its upside, according to Todd Lowther of the Houston office of Thompson & Knight: “The program provides partial relief for eligible companies in allowing them to pay only 10 percent of the employment tax liability that would otherwise have been due in prior years. This essentially means that a business can ‘turn itself in’ to the IRS before being audited and eliminate the risk of IRS penalties for misclassifying employees.”
Lowther says, however, that companies need to consider any potential liability under state employment law before pursuing coverage under the IRS program.
January 4, 2012 by Dave Moore at 10:58:17 am Top 10 Legal News Stories of 2011 for South, North Texas
Whether it’s best movies, worst fashion trends or stock market winners and losers, this time of year is loaded with Top 10 lists. With so many former journalists in our ranks here at Androvett Legal Media & Marketing, it only makes sense that we’d throw out our own roundup of the year’s top legal moments.
On the Houston and south Texas legal landscape, the big news included a contentious fight over Houston red-light cameras, allegations of district attorney misconduct in Harris County, a money laundering conviction for one of Texas’ highest profile politicians, and the confirmation of a new U.S. attorney. To see our resulting list for south Texas, click here
High-profile bankruptcies dominated the North Texas Top 10 list, including filings for American Airlines, Blockbuster and the Dallas Stars. Others standout cases include the politically charged corruption investigation of a longtime Dallas elected official and a multimillion-dollar verdict against one of North Texas’ top private school.
It seems like it would be hard for 2012 to match last year’s intense legal landscape, but Texas never seems to fall short of courthouse intrigue.
December 21, 2011 by Robert Tharp at 4:05:51 pm Divorce Difficult for Grandparents Too
Often forgotten in divorces where children are involved is the pain suffered by grandparents. For them, emotional trauma is multiplied by the fact that grandparents are typically shut out of the legal process and have little or no control over visitation agreements.
Like many other states, custodial parents in Texas have a fundamental right to raise children any way they want, and that means being able to choose who can see their children. “For grandparents to remain in the lives of their grandchildren after divorce everyone has to remain on good terms,” says San Antonio family lawyer Amber Liddell Alwais of McCurley Orsinger McCurley Nelson & Downing. “Otherwise, their chances for visitation are severely hampered.”
If relationships with the child’s parents are strained, a grandparent’s chances for visitation are greatly eroded. Absent an invitation by a child’s caregiver, grandparents may try to petition the court to secure visitation. However, to be successful, grandparents must prove a child’s health or emotional well-being will be impaired without the time together, she adds.
“There is a lot out of your control, but it’s much easier to just stay close to your children and their former spouse so that they will want to keep you involved.”
December 20, 2011 by Dave Moore at 3:46:51 pm Dallas Personal Injury Attorney Branson: Time for Federal Government to Step Up Its Auto Safety Game
The last time the U.S. auto industry saw major new safety standards put into place, the floppy disc was just coming into vogue and “Pong” was considered a cutting-edge video game.
Because science and engineering have advanced considerably in the years since then, Dallas personal injury attorney Frank Branson says it’s time for the National Highway Traffic Safety Administration to revamp its safety standards for automakers.
The most recent example of the NHTSA’s complacency centers around reports of battery fires in the hybrid Chevrolet Volt. News reports indicate that the agency knew of a fire involving the car’s battery pack as early as the spring of 2011, but didn’t report the incident until November.
Even in the late ’80s, the organization responsible for publishing Consumer Reports magazine documented the agency’s reluctance to correct industry shortcomings:
In 1988, NHTSA granted a CU petition in which we urged the adoption of a minimum stability standard to protect against unreasonable risk of rollover in all vehicles. The agency said at the time that the petition was "consistent with the Agency’s steps to address the rollover problem." But NHTSA backed away from setting a standard. In fact, in 1994 NHTSA halted rulemaking on a universal minimum-stability standard, concluding that a standard applicable to all vehicles would require the redesign of nearly all SUVs, vans and pick-up trucks – at an unacceptably high cost.
Frank Branson’s take on the agency:
“The problem with NHTSA is that no one wants to rock the boat,” Branson says. “And the auto industry doesn't want to update safety standards, many of which were written in the 1970s or before.”
The solution that Branson proposes is that consumer advocates step to the fore and take part in leadership at the safety administration.
This would reverse the current trend of individuals with ties to the auto industry stepping into that role.
December 16, 2011 by Dave Moore at 5:22:38 pm Houston Litigator Steven Mitby Wins Rare Exoneration Letter for Wrongly Accused Port of Houston Exec
Too often, news organizations trumpet allegations, then emit hardly a peep when charges turn out to be unsubstantiated.
Earlier this month, Port of Houston CEO Alec Dreyer was formally vindicated on charges that he improperly used a port tour boat and altered a government document to hide the fact. What’s more, the local media picked up on his exoneration and gave the news the attention that it deserved.
In a letter dated Dec. 9, 2011, Bill Moore, chief of Public Integrity Division of the Harris County District Attorney’s office, writes:
The Texas Water Code allows the Port of Houston to spend funds for promotion and development activities. Our investigation revealed that the April 27, 2009, special tour in question included a promotional presentation about the Port of Houston, and was requested and approved pursuant to normal guidelines in place at the Port.
The letter also stated that Dreyer didn’t improperly alter governmental records.
Houston lawyer Steven Mitby of the complex commercial litigation firm Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C., said such letters clearing suspects are rare.
“This kind of letter is virtually unprecedented in Harris County,” says Mitby. “Because of the district attorney’s thorough and fair investigation, the public now knows that Mr. Dreyer has been vindicated and the false allegations against him have been put to rest.”
Dreyer worked with Mitby to encourage Moore to write the letter, so that the public could know the truth of his innocence.
The Houston Chronicle, the local NBC affiliate, and the local public radio station picked up on the letter, which can be read here.
The accomplishment reinforces why Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C. – or AZA – is one of only 32 firms in the U.S. to be recognized as “awesome opponents” in a nationwide poll of corporate general counsel who were asked to name the law firms they hope their companies never have to face in court.
December 5, 2011 by Dave Moore at 5:16:41 pm Dallas Media Put Spotlight on Questionable $40 Million DISD Tech Contract
When the Delcom Group struck a $40 million deal with the Dallas Independent School District, the district put into motion plans to equip nearly 6,000 classrooms with cutting-edge audio visual tools.
After those plans took an odd left turn, a Dallas TV station and the Dallas Observer began digging a little deeper into why the school district pulled that contract from Delcom.
WFAA reporter Brett Shipp recently visited the Houston location of the company that ended up with the audio-visual contract, and he came away with some pretty interesting audio-visuals of his own. Included in his reporting is the allegation that former DISD Trustee Ron Price contacted the school district with a tip that a Delcom employee was convicted of a felony – information that the district used to cancel its contract. However, as Delcom has pointed out, the 15-year-old conviction of a non-managerial employee is hardly grounds for severing a contract.
The Dallas Observer has also picked up on the story, noting the peculiarities of the businesses that operate at the street address of Delcom’s Houston competitor, Prime Systems:
See, Shipp actually went down to Houston to see Prime's facilities for himself. No wonder Doug Busey, director of AV services for Delcom, told trustees to take their own peek when he spoke to them in early November. Guess they never did, or else they might have wondered how the district wound up handing $40 million to a company that sells refurbished computers and remote-control cars out of a tattered storefront done up in Star Trek font.
While a copy of Delcom’s initial complaint is online, the Lewisville, Texas-based firm says it expects that further discovery and depositions will shed more light on what appears to be a conspiracy to undercut Delcom’s bid and to invalidate a legitimate contract.
December 5, 2011 by Robert Tharp at 11:07:41 am Appellate Ruling: Value of Pets Far Exceeds Replacement Cost
The Fort Worth Star-Telegram updates the plight of Avery, an 8-year-old lab mix: Spooked by a late-night thunderstorm, Avery escaped from his family's back yard in Fort Worth and was picked up by the city's animal control.
The Medlens found him at the shelter the next day, but through a series of slip-ups and errors -- from not having enough cash on hand to pick him up that day to having to wait until the vet could install a microchip in Avery's ear -- their dog was added to the euthanasia list and put to sleep. "It was a horrible time for us," said Katherine Medlen, who got Avery years ago from a homeless man giving away puppies. "I've never lost a family member or a pet before."
They took their case to court, saying they hoped to prevent something like this from happening to anyone else's pet, and landed a groundbreaking court ruling this month. A state appeals court in Fort Worth ruled for the first time that a pet's value is greater than its price tag. It has sentimental value as well.That's the right result, says Ryan Clinton, a Dallas appellate attorney at the boutique Hankinson LLP. "In this decision, the court of appeals has recognized what all Texans already know: if someone intentionally poisons, shoots, or simply mistakenly euthanizes your pet, you are damaged by more than the mere monetary cost to replace the animal," he says. "The court got it exactly right based on Texas Supreme Court precedent recognizing that when something irreplaceable is destroyed, we should be compensated."
November 22, 2011 by Robert Tharp at 4:46:30 pm CEO Churn: Is Mandatory Retirement Age for CEOs Legal?
Executive employment attorney Joe Ahmad sees an interesting trend in the recent retirements of IBM CEO Sam Palmisano and Freddie Mac Chairman John Koskinen. In both cases, the high-profile executives cited their companies’ mandatory retirement age policies as the reason for their departures.
In his most recent blog post, Ahmad examines the common belief that these mandatory retirement clauses are legally enforceable. He writes:
The truth is, most of them aren’t. Neither IBM CEO Sam Palmisano nor Freddie Mac Chairman John Koskinen had to retire this week. If they wanted to stay, and they wanted to press the point, chances are the courts would have been on their side. That’s because most mandatory retirement policies are, with relatively few exceptions for safety (such as airline pilots) and some institutions of higher education, a blatant violation of the Age Discrimination Employment Act of 1967.
Ahmad's full post can be found at the Legal Issues in the Executive Suite blog.
November 17, 2011 by Robert Tharp at 2:19:37 pm Texas Exoneree Fee Dispute Lawsuit Settles
The Dallas Observer’s Unfair Park blog has an update to its August 2011 cover story about Lubbock “high-powered” personal injury lawyer Kevin Glasheen and his work to improve compensation for the growing number of Texas prisoners who have been released following wrongful convictions.
In the latest update, staff writer Brantley Hargrove reports on a settlement between Glasheen and three Texas exonerees who had sued him over the standard contingent fee agreement. The settlement comes after a partial summary judgment from District Judge Ken Molberg that deflated a portion of the plaintiffs’ claims.
As noted in the Lubbock Avalanche-Journal, the judge’s motion stressed that Glasheen’s work was not inconsequential. “Almost literally, Glasheen pulled Phillips’ ox out of the ditch, and Phillips’ lethean indulgence of the facts is unpersuasive,” Molberg wrote.
The settlement also comes following lead plaintiff Steven Phillips’ felony drug possession arrest, which if it results in a conviction, could erase a lifetime of monthly payments that he’s set to receive.
Terms of the settlement are confidential.
Writes Hargrove: Wielding the threat of civil litigation,Glasheen lobbied the state legislature successfully on behalf of Texas exonerees, raising compensation rate from $50,000 a year for every year spent in prison on a bogus conviction to $180,000 in 2009.
Glasheen’s work significantly improved the benefits that Texas exonerees receive for health, education and other areas. Glasheen also successfully persuaded the IRS to discontinue its practice of taxing exonerees at a 33 percent rate. And thanks to changes implemented in the 2009 and 2011 sessions of the Texas Legislature, most exonerees no longer need extensive legal representation to collect fair compensation, which was not the case when Mr. Glasheen was hired.
Glasheen tells Unfair Park he voluntarily refunded portions of his fees to all of the men he represented, not just those who took him to court:
"I contacted all the other clients and gave them a similar refund of some fees, because I didn't want them to be treated any differently than the guys who made claims," Glasheen tells Unfair Park. "It was gratifying to me when some of them said 'You don't need to do that. We thought the fees were fair.’”
November 14, 2011 by Amy Hunt at 2:04:27 pm Tips for Approaching First Post-Divorce Holiday Season
The holidays are a difficult season for many people, but the recently divorced facing their first post-divorce holiday have special challenges. When, where and how do you celebrate Thanksgiving? Who will the kids stay with on Christmas Eve? Will mom and dad reunite for a Norman Rockwell Christmas morning?
For couples about to experience their first holiday season as single parents, these and many other issues can cause serious angst. After all, most parents want to make the holidays special for their children. But how much togetherness and accommodation of their ex-spouses can most people handle at an already stressful time?
Carmen Eiker, a partner in the family law firm McCurley Orsinger McCurley Nelson & Downing, L.L.P., suggests that newly divorced parents focus on the Three C’s: Cooperation, Communication, and (Staying) Calm.
“Remember, this is new for everyone involved and a certain level of anxiety is only natural,” she says. “Cooperate with the other parent as much as possible to make the children’s holiday time with that parent as good as it can be. This is not a competition. Telling your children what they will be missing at your house while they are with the other parent is not the holiday memory you want them to have.
“Communicate with the other parent,” she continues. “Bad weather, heavy traffic, and delayed flights happen and are no one’s fault. With email and texting it’s easy for parents to stay in touch in real time to work out the logistics of the hectic holidays.
“And stay calm,” she concludes. “Avoid the tendency to overreact if things don’t live up to the picture-perfect concept of what the holidays should be. No one’s holiday lives up to that. Your children won’t remember minor mix-ups unless you make an issue of them. But they will remember forever a parent’s anxiety or anger. Instead, give them holiday memories of their parents cooperating, communicating, and staying calm. They will remember and thank you forever.”
November 8, 2011 by Dave Moore at 4:56:31 pm Dallas trademark and copyright attorney Dyan House: Newspaper copyright plaintiff lacks standing in court
There’s no doubt that the newspaper industry has been on the ropes since roughly 1999, when the public increasingly accessed the publications’ copyright-protected content using internet search engines, instead of buying copies of the publications via subscription or single copies.
Adding insult to injury are websites and aggregators that lift news stories wholesale without authorization or attribution to their original sources.
The combined effect has resulted in the rapid downward spiral of newspapers across the country, with 14 publications ceasing existence since March 2007, and another eight that have become hybrid operations or strictly online publications, according to NewspaperDeathWatch.com.
Seeing a possible opportunity in this conflict, a firm named Righthaven built its business around the notion of suing individuals or companies that post copyright-protected news stories online without consent of the content producer.
Righthaven has busily followed that business model, filing 275 cases since 2010.
That effort saw a major defeat recently, when a federal judge ordered Righthaven to pay a defendant in one of its cases almost $120,000 in attorneys’ fees, and earlier orders in other cases to pay legal fees ranging from $5,000 to $34,000. “The flaw in Righthaven’s business model is that the company doesn’t hold any exclusive rights under the copyrights for which it is attempting to sue,” said Dyan House of Dallas’ Munck Carter. Section 501 of the Copyright Act says that only the legal or beneficial owner of an exclusive right under copyright law may sue for infringement, she explains. “Righthaven simply lacks standing.”
November 8, 2011 by Robert Tharp at 3:20:23 pm Marcos Ronquillo Named Among Nation’s Top Hispanic Leaders
Looking at the 2011 list of “100 Most Influential Hispanics in the United States,” it’s hard to tell which of Dallas attorney Marcos Ronquillo’s accomplishments and contributions might have caught the attention of the national publication’s editorial staff first.
In selecting Mr. Ronquillo to the influential list, editors at HispanicBusiness Magazine cited his thriving law practice that counts governmental agencies and Fortune 500 companies among trusted clients. But it wasn’t just professional accomplishments that tipped the balance, the publication also noted Mr. Ronquillo’s lifetime of public service and leadership in corporate boards and community organizations. Earlier this year, for example, Mr. Ronquillo was named president of the Julian Samora Legacy Foundation Board. Meanwhile, Texas Lawyer has named as one of the "Extraordinary Minorities in Texas Law," while the Dallas Business Journal has included him among the top minority business leaders in Dallas/Fort Worth.
Mr. Ronquillo joins impressive company on the 2011 list, which also includes Chiquita Brands International CEO Fernando Aguirre, MicroTech CEO Tony Jimenez, and GameStop CEO Paul Raines.
November 4, 2011 by Robert Tharp at 2:13:11 pm Obama Executive Order Targets Scarcity of Vital Drugs, Collusion by Pharmaceutical Companies
A new executive order signed this week by President Obama addresses the growing problem of shortages affecting vital drug and pharmaceutical supplies, some of which have caused increased medical expenses due to gouging of scarce supplies and serious health problems and deaths.
Writes the Associated Press: Patient deaths have been blamed on the shortages, which tend to affect cancer drugs, anesthetics, drugs used in emergency medicine, and electrolytes needed for intravenous feeding. Hospitals have been forced to buy from secondary suppliers at huge markups. Surgeries and cancer treatments have been delayed.
Notes NewsHour, The executive order from the White House called on the FDA to broaden its reporting of potential drug shortages, speed up the review of applications from companies wishing to change production of drugs facing a potential shortage, and pass along more information to the Justice Department regarding instances of suspected collusion or price gouging.
Houston trial attorney Mark Lanier, who has handled many of the nation’s largest pharmaceutical cases, says pharmaceutical companies should not be permitted to collude in order to increase drug prices.
"If collusion causes a shortage of life-saving medicines, patients likely can bring federal antitrust and state unfair business practices lawsuits against the offending businesses," Mr. Lanier says. "For more than 120 years, federal law has prevented large companies from fixing supplies, prices or market shares, and most states have similar laws forbidding unfair business practices. Reporting possible price gouging and collusion certainly should help reveal to the American public the true cause of medicine shortages."
October 28, 2011 by Dave Moore at 12:16:40 pm Court testimony offers power to victims of sexual assault
One of the hardest things a sexual assault victim can do is to relive the assault.
Recently, a young woman was confronted with that psychological trauma, at the criminal sentencing of the teacher who confessed to having sexually assaulted her.
At her side was her advocate and attorney, Charla Aldous, who represented the woman and her family in their civil fraud and gross negligence case against the Episcopal School of Dallas, which employed John Nathan Campbell. That trial resulted in a $9.3 million jury award against the school. Following the trial, Campbell pleaded guilty to the criminal charge of sexual assault of a child and was sentenced to 10 years’ probation, and is now required to register as a sex offender. The young woman appeared at Campbell's sentencing.
"When John Nathan Campbell walked in, her whole body started shaking," Ms. Aldous told reporters who covered the sentencing. "I told her she could do it – that she was a voice for other sexual abuse victims. And that it was very important for her to face him."
The Santa Rosa, Calif.-based Women’s Justice Center website offers the following thoughts on the value of a victim's testimony in court:
By its authority, the court in response to your testimony can deliver a strong public warning to all who would think to behave like this again, and a far-reaching message of hope for all who are still trapped in the wrongs of rape, domestic violence and child abuse. The courtroom isn't perfect yet, especially for victims of violence against women and children. But remember, thousands of women and children before you, by their own willingness to testify against this violence, have strengthened the courtroom stage for you.
While court testimony can’t erase the memory of the assault, at least it empowers victims to begin to set things right.
October 17, 2011 by Dave Moore at 2:52:55 pm Dallas Trial Attorney Frank L. Branson Earns Place in ‘Arena’
When former U.S. President Theodore Roosevelt delivered his “The Man in the Arena” speech in Paris on April 23, 1910, his words were as true then as they are today:
It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming…
One man befitting such description is Dallas Trial Attorney Frank L. Branson, who has dedicated much of his four-decade-long legal career to promote interstate trucking safety.
So, it’s no surprise why Branson recently earned the Teddy Roosevelt “Man in the Arena” Award from the Association of Plaintiff Interstate Trucking Lawyers of America (APITLA).
“Frank Branson is clearly dedicated to this cause and through the ‘dust, sweat and blood’ of his efforts, he has attained an exceptionally high level of professional achievement in the promotion of interstate trucking highway safety,” APITLA Executive Board Member John Romano said.
October 3, 2011 by Dave Moore at 5:03:29 pm Rangers Swinging for the Fences With Attendance, Must Beware of Overspending
Since baseball really is all about statistics, consider this: The Texas Rangers’ average regular season home-field attendance has increased more this year than for nearly any other team in Major League Baseball, according to data from Baseball-Reference.com. (The Cleveland Indians had the largest average per-game increase, with about 5,500 additional fans per game over the 2010 season; the Rangers saw an average increase of about 5,400 fans per game.)
Now, the Rangers are in the race for the American League pennant for the second year in a row, which means another infusion of revenue, if what the Minneapolis/St. Paul Business Journal wrote last year is true (subscription required):
The (Los Angeles Angels of Anaheim) reported $12.1 million in revenue from hosting five first- and second-round playoff games in 2009 and nearly $4.4 million for hosting two first-round games in 2008, according to the reports published by Deadspin.com.
The (Tampa Bay) Rays made almost $17.7 million in revenue on the six postseason games they hosted in 2008. Having two home games in the World Series helped boost those results.
Given the boost from regular-season attendance and post-season play, it would seem that the Rangers organization – which was sold at bankruptcy auction last year – should be immunized from financial trouble.
If only that were so, says Dallas bankruptcy attorney and Rangers fan Derek Rollins, a partner at the Dallas law firm Shackelford, Melton & McKinley. Rollins says an increase in revenue doesn’t vaccinate the team from future financial peril.
“Their growing fan base and second consecutive appearance in post-season play make it easier for the Rangers organization to sell box seats, advertising and team merchandise. Winning teams sell,” says Rollins, who attended portions of last year’s Rangers bankruptcy hearings. “It's what the ownership does with the money that can get them into trouble. If you start to spend like George Steinbrenner, but don't have that kind of money, you can land back in bankruptcy court.”
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